G.F.A. Transportation Co.

G.F.A. TRANSPORTATION CO. 399 G.F.A. Transportation Company and Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 991 , affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind. and Thomas Traylor, John H. McKay, Arthur M. Hughes, and Buren R . Kirksey. Cases 15-CA-2955-1, 15-CA-2955-2, 15- CA-2955-3, 15-CA-2965-1, 15-CA-2965-2, 15-CA-2965--3, and 15-CA-2965-4 January 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 18, 1967, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommen- dations of the Trial Examiner with the following modifications: The Trial Examiner recommended that in deter- mining the backpay of discriminatee Buren R. Kirk- sey, his earnings should be considered to be the average earnings of all the "extra, extra drivers" from August 1, 1966, until the date Kirksey is of- fered reinstatement. Inasmuch as the question of Kirksey's earnings, in relation to those of the other "extra, extra drivers" was not litigated, and no evidence was taken as to Respondent's practice in the allocation of work among these drivers, we shall leave to the compliance stage of this proceeding the establishment of the proper measure of backpay necessary to make Kirksey whole for any loss of pay he may have suffered by reason of Respond- ent's discrimination against him. 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, G.F.A. Transportation Company, Dothan, Alabama, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 2(b) and substitute the fol- lowing: "(b) Make whole Thomas Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey, for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in ac- cordance with the recommendations set forth in the section of the Trial Examiner' s Decision entitled `The Remedy,' as modified in the Board's Decision herein." 2. Delete from the second paragraph of the notice attached to the Trial Examiner 's Decision, the words "a Trial Examiner of." 3. Delete from that line of the notice attached to the Trial Examiner's Decision, which reads: "The Trial Examiner has also ordered us to assure our employees that," the words "Trial Examiner" and substitute the words "National Labor Relations Board." 4. Delete the words, "or threaten any other ac- tion contrary to your interest" from the fourth "WE WILL NOT" paragraph of the notice attached to the Trial Examiner's Decision. 5. Delete from the Appendix attached to the Trial Examiner's Decision, the first line of the first paragraph after the last "WE W:LL NOT" paragraph the words "Board Trial Examiner" and substitute the words "National Labor Relations Board." 6. Delete from the paragraph mentioned in 5, above, of the notice attached to the Trial Ex- aminer's Decision the words "Trial Examiner" and substitute the words "National Labor Relations Board." ' The Respondent has excepted to certain credibility findings made by the Trial Examiner, It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolu- tions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C.A, 3) We find no such basis for disturbing the Trial Examiner's credibility findings in this case. 2 The Respondent has taken exception to the Trial Examiner 's charac- terization of certain conduct, which it admits to, as "further" violations of Section 8 (a)(1) of the Act. Respondent admitted to the charge of com- mitting 58 separate acts constituting Section 8 (a)(1) violations, and the Trial Examiner made separate, numbered findings that each of these acts was a Section 8(a)(1) violation. Later, in the fifth paragraph and the last part of the sixth paragraph of section III, C, 3 of the Trial Examiner's Decision, he appears to make duplicate findings of Section 8 (a)(1) viola- tions with respect to the same acts listed and found as items 9-12 of the admitted violations , located on p. 3 of his Decision. We agree with Respondent that these duplicate findings should not be characterized as "further" violations of Section 8(a)(1) if this is intended to mean that they are in addition to the corresponding admitted violations . With this un- derstanding, we adopt the Trial Examiner s conclusion that these acts did constitute violations of the Act. 169 NLRB No. 72 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN , Trial Examiner: This proceeding, with all parties represented, was heard before me in Dothan, Alabama, on May 2 , 3, and 4, 1967, on com- plaint of the General Counsel and answer of G.F.A. Transportation Company , Respondent herein.' The is- sues litigated were whether Respondent unlawfully discharged three of its old over-the-road drivers and one new driver in August and September 1967 in violation of Section 8 (a)(3) of the National Labor Relations Act, as amended, and otherwise violated Section 8(a)(1) of the Act. After the hearing the General Counsel and Respondent filed helpful briefs, which have been carefully considered. The General Counsel filed a motion to correct the record in certain respects, to which Respondent has filed no ob- jections. Upon consideration the General Counsel's mo- tion is hereby granted and the corrections are hereby made. The General Counsel's motion has been placed in the original exhibit file as Trial Examiner's Exhibit 1. Upon the entire record and my observation of the wit- nesses, I hereby make the following: FINDINGS AND CONCLUSIONS I.' THE BUSINESS OF THE RESPONDENT drivers. The drivers' organizing efforts began in June. Two organizing meetings were held in July; the first on July 9, in an employee's home; the second on July 16, at "Gabe's Fish Camp." The Union's petition was filed July 22 (Case 15-RC-3443). At the election conducted by the Regional Director on October 10, of 39 eligible voters, 22 voted for the Union and 17 voted against the Union. The Union was certified on October 18, 1966. B. Respondent's Hostility to the Union and the Admitted Violations of Section 8(a)(1) Respondent's president, principal stockholder, and ex- ecutive head of the business, Milton Adams, was dead set against the organization of the drivers, and his hostility was strongly demonstrated in the record. At the hearing Respondent stipulated that to most of the people he spoke with, Adams expressed his desire not to have the drivers represented by the Union. On the witness stand Adams testified that he told an applicant for employment, Buren R. Kirksey, that Adams could see no good points at all in the Union. On the witness stand Adams admitted that he had queried every driver he had ever hired about his at- titude towards the Union. At the hearing Respondent admitted and conceded that it engaged in the 8(a)(1) violations alleged in the com- plaint. Respondent admitted and conceded and the parties stipulated that Respondent through its president Milton Adams, engaged in the following acts and con- duct, which I find on the entire record were violative of Section 8(a)(1) of the Act: (1) During the early part of June 1966, created an im- pression of surveillance by informing an employee that Respondent had heard that an employee had been talking about the Union. (2) On or about the early part of June 1966, warned an employee that employees were cutting their own throats by getting involved in the Union. (3) During the early part of June 1966, requested an employee to speak to other employees in an effort to de- feat the Union. (4) On or about July 3, 1966, created an impression of surveillance by informing an employee that Respondent could identify the ringleaders of the Union. (5) On or about July 3, 1966, identified the union leaders to an employee. (6) On or about July 4, 1966, solicited employees to get together with Respondent for the purpose of stopping the Union. (7) On or about July 4, 1966, urged employees to form a committee to air their gripes rather than the Union. (8) On or about July 4, 1966, promised employees a wage increase if they would forget the Union. (9) On or about July 13, 1966, attempted to dissuade an employee from his union activities, interests, and desires by implied threats and promises. (10) On or about July 13, 1966, threatened an em- ployee by stating that if he were fired, Respondent would see to it that he would not get a job or any credit in the city of Dothan because of his union activities. (11) On or about July 15, 1966, requested employees to reject their union affiliation. Traylor; -2, by John H. McKay; -3, by Arthur M. Hughes; -4, by Buren R. Kirksey. G.F.A. Transportation Company, Respondent herein, is an Alabama corporation engaged in a trucking business in Dothan, Alabama, as a common carrier. During the 12 months prior to issuance of the complaint on February 23, 1967, a representative period, in the conduct of its business Respondent derived revenues in excess of $50,000 for the transportation of goods from Alabama to points outside the State of Alabama. Respondent ad- mitted, and I find, that at all times material herein it has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters , Chauffeurs, Warehousemen & Helpers Local Union No. 991, affiliate of International Brother- hood of Teamsters , Chauffeurs, Warehouseman & Help- ers of America, Inc., is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting in Which the Events Occurred The events herein occurred in 1966, during the period Respondent's over-the-road truckdrivers assigned to its Dothan, Alabama, terminal were trying to organize them- selves into Local Union No. 991 of the Teamsters Union. This was a self-organizational movement initiated by the ' The Union filed the charges in Cases 15-CA-2955-1, -2, and -3, on November 2, 1966 . The four charges in Cases 15-CA-2965-1, -2, -3, and -4 were filed by individuals on November 16, 1966 : -1, by Thomas G.F.A. TRANSPORTATION CO. (12) On or about July 15, 1966, warned employees to get a good hold because Respondent was going to fight the Union all the way. (13) On or about July 15, 1966, promised employees a wage increase or any other benefits they desired if they would abandon their union affiliation. (14) On or about July 16, 1966, in and around the city of Dothan, Alabama, urged employees not to attend a union meeting that night. (15) On or about July 16, 1966, promised various re- wards and benefits to employees if they did not attend a union meeting. (16) On or about July 16, 1966, threatened an em- ployee by stating that if the employee were fired that he would have to leave Houston county in order to find another job. (17) On or about July 16, 1966, in and around Dothan, Alabama, engaged in surveillance of a union meeting. (18) On or about July 17, 1966 , created an impression of surveillance by accusing an employee of having at- tended a union meeting the night before. (19) On or about July 17, 1966, threatened an em- ployee by stating that if the terminal went union, he would move every employee to Atlanta. (20) On or about July 17, 1966, questioned an em- ployee as to whether he had attended a union meeting. (21) On or about July 17 , 1966 , threatened an em- ployee by stating that he would redomicile all the drivers if the Union organized the terminal. (22) On or about July 19, 1966, interrogated an em- ployee as to whether he had signed a union card. (23) During the latter part of July 1966, informed an employee that all the Union would do was cut their pay and require them to move from Dothan to Atlanta or someplace else outside of Dothan. (24) On or about August 1, 1966, solicited an em- ployee's help in breaking up the Union. (25) On or about August 14, 1966, requested an em- ployee to sign a petition to get the Union out of the Com- pany. (26) On or about August 14, 1966, threatened an em- ployee by stating that if the Union came into the plant, Respondent would hire more drivers. ' (27) On or about August 15, 1966 , suggested to an employee that the Company would not hire Negroes as long as it remained nonunion and that if the Company went union, it would have to hire them. (28) On or about August 15, 1966 , advised an em- ployee'that if he did not stay out of the Union he would not make a thing. (29) On or about August 15, 1966, solicited an em- ployee to circulate a petition among the employees stating that they did not want the Union to represent them. (30) On or about August 15, 1966, requested an em- ployee to sign a petition to do away with the Union. (31) On or about August 19, 1966, requested an em- ployee to sign a petition doing away with the Union: (32) On or about August 19, 1966, requested an em- ployee to have other employees sign an antiunion-peti- tion. (33) On or about September 17, 1966, interrogated an employee about his union desires and feelings. (34) On or about September 17, 1966, advised an em- ployee that he could fire him then or a year from then because of his union activities. (35) On or about September 17, 1966, advised an em- 401 ployee that he was making a mistake by associating with the Union. (36) On or about Steptember 25, 1966, interrogated an employee about his union desires and feelings and the union feeling 's and desires and activities of other em- ployees. (37) On or about October 2, 1966, offered to grant an employee time off if union adherents were bothering him, (38) On or about October 3, 1966, threatened an em- ployee by stating that he would have to leave town and get another job if he associated with the Union. (39) On or about October 6, 1966, advised an em- ployee that he would beat the Union, and that it would take him about a year to clean house. (40) On or about October 6, 1966, threatened an em- ployee by stating that if the Union won the election, Respondent wouto redomicile the drivers in Atlanta. (41) On or about October 7, 1966, advised an em- ployee that he would raise the employees' vacation pay and other benefits if they did not vote for the Union. (42) On or about October 7, 1966, requested an em- ployee to speak to other employees about disavowing the Union. (43) On or about October 14, 1966, accused an em- ployee of lying to him about the results of the election. (44) On or about October 14, 1966 , accused an em- ployee of voting for the Union. (45) On or about October 16, 1966, told an employee that he should not be proud of how he voted in the elec- tion and asked the employee what he would do now. (46) On or about October 18, 1966, accused an em- ployee of having lied to Respondent about his voting in- tentions. (47) On or about October 20, 1966, threatened an em- ployee by stating that he would redomicile the drivers in Atlanta if he ever had to sign a contract with the Union. (48) On or about October 23, 1966, interrogated an employee about a union meeting and whether certain em- ployees were present at the meeting. (49) On or about November 10, 1966, advised an em- ployee that if Respondent did sign a union contract that he would move the terminal out of Dothan and would not run the freight line as a union line. (50) On or about November 10, 1966, threatened em- ployees by stating that if Respondent had to sign a union contract, the drivers would be moving. (51) On or about November 17, 1966, threatened an employee by stating it appeared that the employees were trying to be moved. (52) On or about November 17, 1966, created an im- pression of surveillance by advising an employee that Respondent knew the Union had voted to strike. (53) On or about November 17, 1966, advised an em- ployee that it would be worth a week's salary to the em- ployee if he could get the other employees to strike sooner so Respondent could replace them. (54) On or about November 17, 1966, threatened to sell the line so that the employees would not have a job. (55) On or about November 17, 1966, advised an em- ployee that none of the drivers could get a job in Dothan if they were discharged. (56) On or about November 17, 1966, advised an em- ployee that if Respondent ever signed a contract, the drivers would be moved from Dothan to wherever Respondent wanted. (57) On or about November 17, 1966 , questioned an 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee as to whether the employees would still drive a truck if the Union struck and put up picket lines. (58) On or about November 17, 1966, warned an em- ployee that Respondent would not sign a contract. The above violations cover almost the full range of possible 8(a)(1) violations by Respondent 's president: from interrogations to threats , promises of benefit, sur- veillance and creating the impression of surveillance; from open efforts to persuade employees to stop the Union by petitions , by forming a committee to air their gripes, to promises of a wage increase if the employees would forget the Union . Adams' antiunion campaign lasted from early June until at least November 17, 1966, which period enclosed all of the discharges involved herein. In these violations President Adams also made express threats against the jobs of employees . Thus, he threatened that he could fire an employee then or a year from then because of his union activities ; he threatened that an employee would have to leave town and get another job if he associated with the Union; he threatened to move the terminal out of Dothan (in and around where many of the employees lived); and he threatened an em- ployee that he would beat the Union, and that it would take him about a year to clean house. In addition to these admitted violations , the record established that Adams made other threats against em- ployees' jobs. These are given below in the consideration of the individual discharges. At the hearing, Respondent admitted and conceded and the parties stipulated that Respondent, by its central dispatcher, Floyd Snell, engaged in the following acts and conduct, which I find on the entire record were further violations of Section 8(a)(1): (1) on or about July 16, 1966, at its Dothan, Alabama, plant, requested em- ployees not to attend a union meeting ; (2) on or about July 16, 1966, in and around Dothan, Alabama, engaged in surveillance of a union meeting ; (3) on or about July 18, 1966, at its Dothan, Alabama, plant, inquired as to the voting intentions of an employee ; (4) on or about July 25, 1966, at its Dothan, Alabama, plant, interrogated an employee about his union desires , feelings , and sym- pathies. C. The Discharges 1. Introductory Three of the dischargees, Thomas Traylor, John McKay, and Arthur Hughes, were longtime safe drivers of Respondent who had a combined total of over 32 years' service with the Company and had just received safe-driving awards for a combined total of 22 safe-driv- ing years . Each was discharged summarily by Respond- ent's president, who gave them little or no opportunity to explain their respective alleged wrongdoings before discharging them . In each severance interview he had the severance check ready before the interview, which in- dicated that the decision to discharge had been reached prior to the interview and that Adams had a closed mind as to any explanation any dischargee might have offered. The four severances here involved were all bunched between the filing of the petition on July 22 and the hold- ing of the election on October 10. They occurred on about August 1, 11, 27, and September 22, during the period when, as has been seen above, President Adams was conducting a vigorous antiunion campaign designed to beat the self-organizational movement by any and all means at his command. There were no discharges follow- ing this group of discharges until the hearing herein in May 1967, and the record indicates that the last discharge prior to this group of discharges probably occurred prior to May 1966. Respondent's defense offered no explana- tion for the bunching of these discharges between the petition and the election. In view of the broad range and intensity of President Adams' antiunion activity extend- ing over a period of months, it would have required far more emotional and legal restraint than the record showed him to have exercised, for Adams not to have in- cluded discharge as one of his antiunion weapons. 2. Company knowledge of the dischargees' union activities and sympathies There can be no doubt on this record that Respondent knew of the union activities and sympathies of the four dischargees. According to the credible and credited testimony of driver E. J. Wood, on July 2 President Adams told Wood that he knew who the ringleaders of the Union were, naming four employees including Traylor and McKay, and that he was going to have a meeting and "bring this thing out in the open." The meet- ing was held July 4. President Adams' 8(a)(1) violations on July 4 have been set forth above; In addition both Adams and Central Dispatcher Snell had the employees' union meeting of July ' 16 under surveillance, at which Traylor, McKay, and Hughes were present among others. In addition, as was seen above, the following day Adams accused an employee of having at- tended the meeting the night before. Further, as is seen below, Adams knew from predischarge discussion with them that Traylor and McKay were strongly prounion; and Hughes refused at the request of a friend and business associate of Adams to go to Adams' office to talk to him about the Union. It is impossible on this record to believe that word of this refusal did not reach Adams. Further, according to credible testimony, on October 23, before any of the charges were filed or served on Respondent, Adams telephoned an employee at his home and asked him how many had attended the union meeting the night before, and whether Traylor, McKay, and Hughes were present - showing that in his mind Adams connected these three with the Union. As a witness Adams admitted some of the statements and interrogations attributed to him by the drivers and de- nied some of them, but his testimony revealed that he had no clearly trustworthy remembrance of his conversations about the Union because he had so many of them. He ad- mitted that he could not recall all his discussions about the Union. He said, "I had so many discussions about the Union since this has been in effect, until I cannot recall every conversation I have had." In view of this admis- sion, and as by their demeanor as well as the substance of their testimony the numerous employee witnesses ap- peared to me to be relating the truth, I credit the em- ployees' testimony where it conflicts with Adams'. Further, because some of Adams' testim ony was patently contrary to the truth, he did not impress me as always a credible witness. As for Kirksey, the new employee, Respondent's un- derstanding of where he stood concerning the Union is given below. G.F.A. TRANSPORTATION CO. 403 3. The discharge of Thomas Traylor Thomas Traylor worked for Respondent for over 9 years prior to his summary discharge on August 11, 1966. Traylor was one of the two drivers who first started talking about trying to organize the drivers, around June 1, 1966. He talked with Respondent's Dothan over-the- road drivers at its Dothan terminal and where he would meet them at the Atlanta and Mobile terminals. He passed out union cards. He signed a card on June 17. He attended the two union meetings, one on July 9, and the other on July 16, which was under surveillance by Pres- ident Adams and Central Dispatcher Snell. President Adams' knowledge of Traylor' s union alle- giance or sympathy was established in the record and was not questioned by Respondent. On July 13 in Adams' office, Adams told Traylor he thought Traylor would tell him the truth and asked Traylor if he was for the Union. Traylor replied that he was, that he had nothing to hide. According to Traylor's credible and undenied testimony, Adams asked him what he thought he would benefit by the Union if I was still around. Adams said he would like to talk them out of the Union and that if they would make him an offer as to what they wanted he would consider as to whether he could grant it. President Adams said that if Traylor got fired from the Company, Adams would see that Traylor "got no credit in Dothan, or no other job that he had the Chamber of Commerce backing him." In the context of the conversation about the Union, the italicized words in the paragraph above amounted to an indirect threat of discharge, and of dire economic con- sequences following discharge, because of Traylor's sym- pathy for the Union. By these threats, and also the inter- rogations, Respondent further violated Section 8(a)(1) of the Act. Two days later, on July 15, as Traylor and another driver were together, President Adams invited them into the office and interrogated them about the Union. He in- dicated he wanted to talk to them separately, and when they refused, he said they had him over a barrel, that if he talked to them they could use it to blackmail him, that it would be two witnesses against one. In his office he asked them what had caused them to try to get the Union started. The drivers cited several reasons, including in- sects in the bunkhouse in Mobile and their having to run too many hours without resting. At the end Adams said he saw that he, could not talk them out of the Union, so that the best they could do would be to get as good a hold on him as they could because if they did not, he would get one of them, and that "if it went union, he was going to go right by the book." Adams' threats to get a hold on the drivers and to go by the book if it went union were further violations of Section 8(a)(1) of the Act. On July 28, Central Dispatcher 'Snell asked Traylor how he was going to vote' in the election. Traylor replied he did not know how President Adams was going to vote and that when he found out, Traylor would make up his 2 The rule read "Hauling rider is absolutely forbidden. The only excep- tions being - an employee of your own organization on company payroll and drivers in distress to nearest telephone. Penalty for hauling unauthorized passengers - Dismissal." 3 That this conclusion is sound and correct was shown further by the fact that although the written rules were announced under the cover of a "safety program" they were couched in terms of violations, and some of them, including the one herein involved, carried harsh penalties. There mind. By this interrogation, Respondent further violated Section 8(a)(1) of the Act. About 8:30 p.m. on August 10, while in the country hauling a load, Traylor picked up a woman whose car was stranded and who urgently implored his assistance, and gave her a lift for about 4 miles to the next town. Pres- ident Adams testified that two company salesmen saw the woman in the cab and reported it to him that night. The following morning, when he returned to Dothan, President Adams abruptly discharged Traylor allegedly for carrying a woman passenger contrary to a written rule 2 of the Company. Traylor refused his final check and Adams mailed it to him. The question is whether the dis- charge was because of and to discourage activity in the Union, and whether citing the rule was a mere pretext. Respondent had had no written rules until the advent of the Union, and no convincing reason appears other than to set the "book" by which President Adams threatened to "go," as to why the written rules were put into effect on July 24, 1966, instead of months before. For about a year, pursuant to the requirements of the Respondent's insurance company, the general insurance agent, Markel Services, Inc., had been trying to get Respondent to adopt written rules and had given Re- spondent suggested sets of written rules. Markel had brought the matter up at least four times during the 6 or 7 months prior to July 24. Adams' only explanation at the hearing for this delay was that it was one of those things that could be postponed. Respondent announced the written rules, and had each driver sign them at a safety meeting on July 24; and the entire record justifies the in- ference, which I reach, that in the face of the union chal- lenge Adams felt that the matter should be postponed no longer. Instituting the written rules at this time, and requiring the drivers to sign them, after not having had any written rules during the 9 years it had been Adams' company, appears to have been the method by which Adams was writing "the book" whereby to get his threatened "good hold" upon the drivers; the method by which Adams was setting a trap to catch and penalize drivers for what had theretofore been condoned.3 By adopting and effectuating the written rules at this time and having the drivers sign them, for these reasons at least in part, Respondent further violated Section 8(a)(1) of the Act. Adams' own attitude towards the rules was revealed by his statement to two drivers, Starling and Crews, several weeks later. Asked how he wanted them to drive, by the rules or as they had driven before, Adams replied that they should drive "like you've been driving." He added that the rules were "just some rules that the Markel men had to put out." Adams' attitude towards Interstate Commerce Com- mission rules indicated further his lack of regard for rules. Respondent sometimes used its extra drivers in such a way as to deprive them of the required number of hours of rest each day. Uncontradicted and credible testimony established that Adams required extra drivers to falsify their daily logs on ICC forms in order to keep their jobs. He required them to "work" their logs so that they would was no evidence that any previous oral rules had carved such harsh penal- ties or that Adams was theretofore a strict or harsh employer. A credible witness, William Crews, told President Adams, without contradiction by Adams, that prior to the Union the drivers had "gotten away with murder" tune and time again, and that they had not been punished for anything The record showed that before they joined the Union the-rela- tionship between the drivers and Adams was relaxed and that the men were good and safe drivers who did their work to management's apparent satisfaction. 350-212 0-70-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appear "legal" regardless of whether the logs correctly reflected the times and places of the drivers' daily activi- ties. The record established that prior to.the written rules, throughout the years of Adams' control of the Company, the drivers had picked up people in distress on the highway and carried them to where they could get assistance. They had carried people in distress, regardless of whether they were professional drivers or "laymen." Shortly after Adams took over the Company in 1957, he told a driver, Thomas, "to be nice and courteous to any- body that was on the road and if we could help them to help them." About a year and a quarter prior to Traylor's discharge allegedly for violating one of the written rules, driver Crews picked up a bleeding boy who had been in- jured in a car accident and carried him to a nearby city. Upon his return to Dothan, he told President Adams about it. Adams commented that "you had to be careful who you picked up now a days," but said nothing about carrying only professional drivers and not laymen. The record suggested no thought in Adams' mind of discharg- ing Crews. Others carried by drivers within the past few years from situations of distress to ports of aid and assistance included, in addition to commercial drivers, another bleeding boy, a woman out of gas, a hardware man, a "fel- low in an automobile broken down," and a man with a flat tire. Although none of these incidents were reported to Adams, it seems unlikely to me that five different drivers would have assisted these five laymen if there had been, as Respondent claimed, a tight oral rule against assisting laymen, and if the drivers had had any idea that they were risking their jobs by giving lifts to laymen in distress. Respondent showed that another driver, Hunt, refused to carry the woman needing gasoline , and urged that this proved the existence of an oral rule against carrying laymen. But Hunt did not give any reason for his refusal to Starling, who carried her, and the conversation between them related not to a rule but to which direction (they were going in opposite directions and stopped at the stalled car) would be most apt to yield an open gasoline station at that early dark hour of the morning. Respondent contended that the July 24 written rules in effect codified the existing oral rules. If the alleged oral rule against picking up other than commercial drivers car- ried a discharge penalty for its violation, as did the written rule, certainly it was never shown to have been enforced. The driver who reported to President Adams that he had carried a bleeding boy was not discharged or even rebuked for it. Nor did the record show that any driver other than Traylor was ever discharged for alleged viola- tion of the rule. The absence of any penalty attached to the alleged oral rule is strong evidence either that such rule did not exist or that its violations were condoned. Upon the preponderance of the evidence, I conclude only that any such oral rule lacked a penalty provision and that the stiff penalty of discharge was added in the written ver- sion as a part of Respondent's effort to entrap the drivers because of their union activity. To be noted in this regard is that although Respondent offered considerable evidence of the existence of an oral rule against picking up "laymen," none of this testimony included a claim of a discharge penalty for violation of the alleged oral rule. In any case the discussion that took place at the July 24 meeting when the written rules were announced, concern- ing the meaning of the rule in question, was unquestioned proof that both the written and oral rules were am- biguous. Credible testimony showed that after the meet- ing some drivers understood they were not prohibited from carrying laymen in distress. Other testimony restricted permitted assistance to professional commer- cial drivers in distress. Likewise, the instructions at the meeting were inconsistent with instructions to a group of drivers just after the meeting. At the meeting a Markel agent said "drivers in distress" in the written rule meant only commercial drivers. Immediately after the meeting the Markel man and President Adams told a group that they could not leave a layman stranded, that they should get him to the nearest telephone.4 It is clear, further, that at the meeting it was not explained that any previously. existing oral rule was being modified by the addition of the discharge penalty for violation. As the written rule in question, including the penalty clause, was not a codification of any existing oral rule, as the written rules were effectuated in part at least to set a trap for drivers because of their union activities, as Pres- ident Adams had no serious regard for the rule, as other, drivers had carried laymen with impunity, and as driver Crews had not been discharged when he reported carry- ing an injured boy to Adams a year and a quarter before, I hold on the preponderance of the evidence in the entire record considerd as a whole that the rule may not be as- serted as a defense to Traylor's discharge; that the rule, although the asserted justification of the discharge, was not the real reason for the discharge and was but the basis for a pretext on which to hand the discharge. To Respond- ent's knowledge Traylor was in favor of the Union and had attended a union meeting under surveillance by Pres- ident Adams and Central Dispatcher Snell. Because of Traylor's union sympathy and activity, President Adams had threatened him with discharge and being blackballed in the area. When Adams could not talk Traylor out of the Union, he threatened him that he would "go by the book." This was a part of Adams' program of " cleaning house" in order to beat the Union. He discharged Traylor summarily and had the final check ready before the inter- view, which showed a closed mind as to anything Traylor might say. Upon this evidence and the preponderance of the evidence in the entire record considered as a whole, I believe and find that the real reason for the discharge was to penalize Traylor for his union sympathy and ac- tivity and to discourage further union sympathy and ac- tivity among the drivers, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 4. The discharge of Arthur Hughes Arthur Hughes was Respondent's second oldest driver in point of seniority. He had driven for Respondent for 20 years, through 3 different owners, prior to his discharge by Adams on September 22, 1966. At the July 24 meet- ing he received a 10-year safe-driving award. A year or so after Adam s took over the Company in 1957, when the Union attempted to organize the drivers, Hughes played the leading role against the Union. In 1966, he signed a union card in June, attended the two 3 This finding is based upon the testimony of Charles Starling and Elmer Paul, who impressed me as credible witnesses . Their testimony was contradicted by the Markel agent, P. H. Taylor, and by President Adams. G.F.A. TRANSPORTATION CO. union meetings on July 9 and 16. Hughes, Marion Green, and another driver went out to Gabe's Fish Camp, where the July 16 meeting was held, and made the reservation for that meeting. Green testified as a witness for Re- spondent at the hearing herein. On about July 7 or 8, according to Hughes' uncon- tradicted and credited testimony, a Dothan Cities Service and Firestone dealer, who is a friend of President Adams ("and they have a business together"), telephoned Hughes and said he wanted to come out and talk with Hughes. This businessman, Dansey, went to Hughes' home on July 21 or 22, where he told Hughes that Adams wanted to see Hughes in his office. In effect refusing, Hughes asked why Adams did not come to Hughes' house to see him. To be noted in this connection is that on July 11, at Dansey's request, Thomas Traylor went to Dansey's of- fice where Dansey talked to him about the Union and asked him to go talk to Mr. Adams. Traylor complied with the request and Adams' interrogations and threats to Traylor on July 13 and 15 have been set forth above. This was during the period of the union meetings attended by Hughes, the second of which Adams and Snell had under surveillance; and during the period of other extended 8(a)(1) activity conceded and admitted by Respondent as seen above. Under all these circumstances, it is a reasonable inference, which I reach, that at this time Adams wanted to have a conversation with Hughes about the Union and that Hughes' refusal to come to his office and talk to him became known to Adams; thereby making it completely clear to Adams that Hughes, who had been the chief employee opponent of the Union a few years be- fore, was now a supporter of the Union. The way Adams was then thinking about the Union, as his acts betrayed, this placed Hughes in the category of those to be eliminated in the "house cleaning" Adams threatened. Adams' opportunity to "clean out" Hughes came on the night of September 20 and the morning of September 21, when the Markel agent for the area, William H. Dye, reported to Adams that Hughes had threatened to kill him. Dye's duties, as a "safety engineer" were to patrol certain highways where Respondent's trucks ran and ob- serve and report the conditions of the trucks and the driv- ing. He testified he assisted in trying to "enforce" the safety program. When, over a long distance telephone call, Dye re- ported to Adams that Hughes had threatened to kill Dye, Adams asked no questions about the incident other than whether Dye was hurt or needed help. Dye replied in the negative to both questions. Although during the 9 years Hughes had worked for Adams, the latter had had no problem with him, no complaints, and no alleged threats upon anyone, the testimony indicated no doubt in Adams' mind as to the truth of Dye's assertion. When, in the con- versation, Dye said he was thinking of having Hughes ar- rested, Adams replied that if someone threatened to kill him Adams damn sure would have him arrested. In spirit, at least, this ran counter to a statement President Adams 5 After checking various boxes indicating the condition of the vehicle, road conditions, and certain driving practices of the driver of the vehicle, Dye wrote the following- "Observed unit as detailed above. Driver keeps within posted limits and well to the right Thus far conditions were good. Driver pulled over and stopped at one of the few pull-offs. I followed to see who driver was. The driver, Mr. Arthur Hughes, met me at the rear of the trailer with tire loumper in hand and stated, `If you have business up this way, get on, I've had enough of this .... And if you follow me any- 405 had made to drivers Crews and Starling about a month before. Crews had asked what to do if somebody was "tailgating" him, following him too closely. Adams had replied that all he could tell him was to stop and "beat hell out of them." Surely, any such behavior as was recom- mended by Adams would have had more serious reper- cussions for driver and Adams as owner of the Company, than the mere threat attributed to Hughes. The following day, Adams being temporarily absent, Dye handed his written report to Central Dispatcher Snell. The wording of the report is set forth in the foot- note 5 Among other things, Dye "pointed out to Snell" the "attitude" of Hughes. Dye asked Snell whom he should see to get a warrant out for Hughes' arrest. Snell replied that he should see the county solicitor. Snell thus helped Dye, seemingly believing Dye's version of the incident with Hughes, without first, or ever, discussing the in- cident with Hughes. Dye then went to the county courthouse of Houston County, which is located in Dothan, Alabama, and spoke with the assistant district attorney. Pointing in the direction of Respondent's loading dock in Dothan, Dye told the assistant district attorney, in asking for a breach of the peace warrant, that "out at the GFA loading dock" Hughes had said to Dye, with a tool in his hand, words to the effect that "I am going to beat your brains out." On this representation, the assistant district attorney prepared a warrant, gave it to Dye, and told him which judge to take it to to get it signed. The warrant was ap- parently served on Hughes by leaving it at the Company. A few days after Hughes' discharge the case was nol- prossed at the instance of Markel. In fact, the incident between Hughes and Dye had oc- curred not in Houston County, Alabama, within which county the court had jurisdiction, but in the State of Georgia, where the court had no jurisdiction. The following day, September 22, Adams discharged Hughes in the presence of Snell. It was a very short inter- view. Adams referred to the trouble Hughes had had with the Markel man. The testimony is in dispute as to whether Hughes denied or admitted that there had been any trouble; Hughes testifying that he said there was no trouble; Adams and Snell testifying that Hughes admitted there was some trouble. Adams said that he could not have such threats of insurance people because they could cancel the insurance and without insurance he could not operate. Adams testified he referred to Dye's report but did not offer Hughes an opportunity to read it or give him a chance to read it. Without any further discussion, and no vestige of an investigative inquiry as to Hughes' ver- sion of the facts, Adams then gave Hughes two choices: to resign, or to be fired. Hughes refused to resign. Adams then told him he was fired, and offered his final check. Hughes refused the check. Adams mailed it to him. The testimony as to the 9:15 p.m. incident on Sep- tember 20 between Hughes and Dye was completely contradictory. Dye followed Hughes for about 10 or 12 miles, too closely, with his bright lights shining in more I'll kill you.' At first I thought Mr. Hughes was kidding But he stated, `You've got one man's job, now stay away from me or I'll kill you, I mean it.' At this, I got back into my car and passed around to get tractor number and resumed the 45 mph speed limit. Mr Hughes pulled out be- hind me and got right on my tail following at approximately 50 feet for about two miles, then dropped back." "This man's attitude is very poor at the present time, which could result in a definite hazard to the safety and life of others on the same road " 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes' rear vision mirror, according to Hughes; for about 2 miles, at a proper distance with his low beams on, according to Dye.6 Hughes' version was that when he came to a spot where he could pull his tractor and trailer clear off the road he pulled off. His obvious reason was to let the "tailgating" car pass him. Instead of passing Dye pulled up behind Hughes and stopped. Dye testified he stopped to get the number of Hughes tractor, which he admitted he could have obtained as he passed it, had he chosen to do so . Both got out of their vehicles and met alongside Hughes' trailer. Hughes testified he uttered no threatening words and had nothing in his hand , but simply told Dye forcefully, that his lights were blinding Hughes and for Dye to go ahead in front of him. Hughes testified Dye said he was doing what Hughes ' boss man (meaning Adams) was paying him to do. Hughes ' version as to no threats and nothing in his hand was corroborated by two other drivers, one of whom testified he was coming along behind Dye and stopped when he saw Dye stop. The other was going in the opposite direction and stopped to see what was going on. Contrarywise Dye testified that no other truck passed or stopped and that he and Hughes were all alone. Dye testified Hughes had a tire bumping instrument in his hand which drivers use to test the infla- tion of tires. Dye testified Hughes did not mention Dye's lights but said that he was tired "of this," and that Dye should get away from Hughes or Hughes was going to kill him. Hughes also allegedly said that Dye had gotten one man's job and that if Dye did not get out of his way Hughes was going to kill him. Dye admitted Hughes did not raise his hand or the instrument. Dye testified that after they departed, Dye's car first, Hughes "tailgated" him for several miles. Hughes denied this. If Hughes was as angry or as threatening as Dye's testimony would suggest , no reason appears as to how Hughes contained himself from making threatening jestures with his hand and alleged instrument. If in fact Dye was tailgating Hughes with bright lights, and if in fact he was tailgating pursuant to orders from Adams, as Dye's statement to Hughes suggested, surely this justified some show of anger on Hughes' part. The record indicated that some of the drivers genuinely believed that during the organizational period Dye tailgated the drivers (who drove much at night) with bright lights in order to provoke them into incidents such as the Hughes' incident. Hughes may have shared this belief, and his words to Dye were probably designed to let Dye know he wanted the tailgating and bright lights stopped . However on the preponderance of the evidence I do not believe that Hughes threatened to kill Dye. Hughes and the two drivers who corroborated his testimony in part appeared to me to be credible witnesses, and by his demeanor as a witness the 60-year old Hughes appeared as a soft- spoken man unlikely to be given to violence or threats of violence. Further, Dye attributed to Hughes' behavior out of keeping with his normal conduct in 9 years on the job for Adams, where he had proven himself to Adams to be a steady, dependable driver. In fact, a few years be- fore, Adams himself had suggested to Hughes that he take the night run he was on at the end between Dothan and Atlanta. Explaining why he thought he was selected 6 The record was much in conflict as to whether Dye's car was un- marked or had the customary Markel insignia on it. Resolution of the case does not require the resolution of this question. ' On the entire record I credit Hughes ' denial of the testimony of Billy Lee that on the night Hughes "quit work" Hughes told a group of em- by Adams for this run, Hughes explained that he did not lose any time, that he did not stop at truck stops, and that he went and came. The record suggested a reason why Dye turned in the report he did on Hughes. Although Dye denied he had received any request from Adams or Respondent to con- duct intensified surveillance of the drivers during the self- organizing campaign , the record strongly suggested that he did just that. He knew of Adams' strong feelings against the Union, and obviously sensed that his supply- ing any information adverse to the drivers would be ap- preciated. This may have been behind his strong report against Hughes. The accuracy of this report and the credibility of his testimony at the hearing is in serious doubt in view of his apparently intentional misleading of the county official as to the place of the incident in order to get a warrant for Hughes' arrest. Also, according to the testimony of the assistant district attorney, a very credi- ble witness , Dye told him Hughes had threatened to "beat his brains out," which is a different threat than Dye had reported to Adams.7 Further, that Dye knew his own power over the drivers was revealed in late July in his statement to a driver that Dye could "get" the job of a driver of a motor fuel truck who failed to stop at a railroad crossing. In any case the evidence is undisputed that Adams had Hughes' check ready when he called him in to discharge him and had no intention of hearing Hughes' side of the incident before severing him. That Adams was blind to any tailgating by Dye which provoked the incident was shown by Adams' apparent noncompliance with a request made to him a few weeks before that Adams speak to the Markel (Dye was the only regular patroler in the area) and tell him to dim his lights and not follow so closely. There was no showing that Adams ever complied with this request. Further, by advising drivers to "beat hell out of" those who tailgated them, Adams showed himself to be not disapproving of actual violence and, it would fol- low, threats of violence. As Hughes was in Adams' eye a turncoat on the union issue, who had refused to come to Adams' office to dis- cuss the Union, as Hughes had attended the union meeting Adams and Snell had under surveillance, and as Hughes was therefore in the group Adams obviously had ear- marked in his mind for "house cleaning," I believe and find on the preponderance of the evidence in the entire record that Adams accepted the accuracy of Dye's report of the September 20 incident and gave Hughes no open- minded hearing on the issue , in order to get rid of Hughes because of his actual and suspected union activities and sympathies. Thus Adams used the Dye report as a pre- text to discharge Hughes in order to discourage further employee activity and sympathy on behalf of the Union. By this discharge Respondent further violated Section 8(a)(3) and (1) of the Act. 5. The discharge of John H. McKay McKay worked for Respondent for 8-1/2 years prior to his summary discharge on August 27, 1967. At the July 24 meeting he received a 7 years' safe-driving award. ployees in the drivers ' room at Respondent's Atlanta terminal that he had threatened the Markel man that he was "going to use that pig tail he had in his hand." Lee described a pig tail as a piece of insulated cord with a fitting on the end of it. If believed, this would be yet a third version of Hughes' alleged threat. G.F.A. TRANSPORTATION CO. 407 McKay and Thomas Traylor are step-brothers. McKay signed a union card at Traylor's home on June 19. McKay attended the two union meetings on July 9 and 19, the latter of which was under surveillance by Re- spondent. McKay credibly testified that he talked up the Union more than any of the other drivers. On July 25 President Adams asked McKay how the Union was going, and asked him why he was for the Union. McKay replied he was for the Union because on February 8 Central Dispatcher Snell had refused to let him off from work when his wife was ill and that to McKay's knowledge President Adams had approved that action by Snell. During the conversation Adams asked McKay to try to talk the boys out of the Union, McKay replying that he could not do it all by himself. By these in- terrogations, and this interference into the employees' union affairs, Respondent further violated Section 8(a)(1) of the Act. On August 14 President Adams, in the presence of Snell, rebuked McKay for letting one of the dock workers at Respondent's Atlanta terminal back McKay's truck up to the dock. On this occasion they had a discussion, "a pretty good argument," concerning the Union, during which McKay told President Adams that if there was only one vote for the Union at the election, Adams could assume it was McKay's ballot. Adams replied there might not be an election and asked what McKay would do then. McKay replied he did not know. McKay was discharged on Saturday, August 27, al- legedly because he had refused to obey a company order on Tuesday, August' 23. McKay was in a house trailer maintained by Respondent at Respondent's Pensacola, Florida,, terminal on Tuesday afternoon and evening rest- ing and awaiting assignment. Around 7 to 7:30 p.m. Respondent's dispatcher 'at Pensacola, Hubert Murray, came to the house trailer, handed manifests to two other drivers, Collins and Jones, and assigned them to runs to Atlanta. It was customary to hand manifests to drivers in making assignments to them. At the same time Dispatcher Murray told McKay he was to go to the St. Regis Paper Company, some 20 miles northwest of Pen- sacola, wait 4 hours while a load was being transferred from one trailer to another, and then pull the trailer from there. McKay would not have been paid for this waiting time, as over-the-road drivers were paid on a mileage ba- sis. Murray did not give McKay a manifest. McKay replied that he was not going out to St. Regis to sit 4 hours. On the witness stand Dispatcher Murray admitted that in this first conversation he gave McKay the alterna- tive of remaining at the Pensacola terminal until the load was transferred. Murray contradicted himself concerning the nature of this alternative. First he testified McKay's alternative was to remain at the Pensacola terminal until the trailer was loaded and then go out to St. Regis and pick it up. On cross-examination he'testified the alterna- tive was for McKay to remain at Pensacola until the city driver brought the loaded trailer there. On redirect he testified, that if McKay had waited in Pensacola until the load was transferred he then would have "bobtailed" out to St. Regis and pulled the loaded trailer from there to At- lanta. Drivers Collins and Jones had heard the colloquy between Murray and McKay. Sensing that this might be a trap for McKay, Collins went back to McKay, advised him that Jones and Collins thought it might be a trap, and advised McKay to go to the paper mill and sit all night if it was necessary. McKay replied that he would discuss it with Murray. Within a half hour of his first visit, according to McKay's credible and credited testimony, Dispatcher Murray returned to the house trailer and McKay told Murray that he did not want to go out to the paper mill but that he would. McKay added that this was the first time in his 8-1/2 years with the Company that he ever heard of anybody being asked to go to the paper mill and wait 4 hours. According to McKay's credible and credited testimony, Murray related that he, Murray, had made a mistake and sent the wrong trailer to St. Regis, and that he had to send four men out there to transfer the load onto another trailer and he would let one of them bring the newly loaded trailer back. He did not say that he had al- ready sent the four men out to St. Regis. Late that night the newly loaded trailer arrived at the Pensacola terminal, Murray gave McKay a manifest at 11:30 p.m., and McKay pulled the trailer to Atlanta, ar- riving on time the following morning, Wednesday. He ar- rived back in Dothan on Thursday and on Friday was dispatched again to Atlanta, from which he rearrived in Dothan about 3 o'clock Saturday morning. About 9 o'clock Saturday morning he was summoned to report to Adams and President Adams summarily discharged him, allegedly for disobeying a company order. When McKay asked him what order, President Adams refused to divulge, stating, according to McKay's credited testimony, that he did not have to tell him anything else and that that was all he had to tell him. McKay refused his proffered final check, saying that the union man had told them not to accept a check if they were discharged. Adams replied he had better take the check because McKay would be forbidden to come onto company property "tomorrow." Respondent contended that McKay was discharged for refusing to pick up the trailer at St. Regis, that President Adams learned on Friday of this refusal by rumor from some unidentified drivers, verified it ,by telephone call to the Pensacola terminal manager, Mr. Ritchie, and discharged McKay for refusing a direct order Adams had given by teletype on Tuesday: that the next driver out of Pensacola should pick up a load at St. Regis, rather than at the Pensacola terminal. The record established that although McKay initially refused to go out to St. Regis and wait 4 hours, he changed his mind and expressed willingness in the second conversation with Murray to go out there. Murray un- derstood in the second conversation that McKay was changing his position and was now willing to make the pickup. In effect at this time Murray excused McKay from making the pickup at St. Regis and permitted him to pull the trailer from Pensacola. At the latest this conver- sation' occurred at 9 to 9:30 o'clock that night. As McKay received the manifest and left the terminal with the trailer at 11:30 that,night, and as Dispatcher Murray knew the trailer was due in Atlanta the following morning, an 8- hour drive, away, I conclude that Murray did not permit the trailer to linger in Pensacola and that it arrived at Pen- sacola just a few minutes before 11:30 p.m. Thus if at 9 or 9:30 p.m. Murray still wanted McKay to pull that trailer out of the paper mill; there was plenty of time for McKay to "bobtail" the 15 miles out there before it was brought in and to haul it from there. Instead Murray decided to let the city driver bring it in and to let McKay take it from Pensacola. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That Murray took no personal or official offense at McKay's initial refusal, did not consider it insubordinate, and in effect condoned it, was shown by the fact that Murray made no report of the incident and did not intend to unless and until he was asked, as he testified. There is some doubt on the record as to whether the teletype order from the Atlanta terminal to the Pensacola terminal directing that the load be transferred also or- dered that an over-the-road driver pick it up at St. Regis. The teletype message itself was not put in evidence and was not shown to be unavailable. Dispatcher Murray testified that the order was to transfer the load "and put it on a GFA trailer and they will come out that night in- stead waiting for the next day." The italicized words ap- pear to relate to the merchandise on the trailer and to its getting on the way to Atlanta that night rather than the next day as planned by Murray until Dothan overruled him. If Murray had considered the teletype an order that the over-the-road driver make the pickup at St. Regis, no reason appeared why Murray would not have told McKay in the second conversation to go out to St. Regis and make the pickup there. Certainly if Murray had con- sidered the teletype message an order to pick up at St. Regis whose disobedience could cost McKay his job, no reason appeared as to why Murray would not have sent him out there in the second conversation. Murray was not shown to be antidriver or antiunion or anti-McKay. Further, Adams summarily discharged McKay without ever discussing what had happened with Murray and without having all the facts. Adams testified that on Friday he heard "rumors" from drivers that a driver had refused to go out from Pensacola to the St. Regis paper mill and haul the load from there. Adams incredibly testified that he did not remember the names of his in- formants, and that he was not told the identity of the driver involved. It is inconceivable that on September 21, about 2 weeks before the election where 17 drivers voted against the Union, that the "rumor" spreaders were not antiunion drivers and that they failed to identify the strongly prounion McKay as the driver involved. According to Adams, he then telephoned the manager of the Pensacola terminal, told him he had heard "one of the drivers" had disobeyed an order to pick up a load at St. Regis, and asked the manager, Ritchie, to check on it "and he said that is correct." Murray credibly testified that he had no conversation with Ritchie on this subject except that Ritchie asked Murray if McKay refused and Murray replied in the affirmative. The fact that Ritchie mentioned McKay's name is added proof that Adams knew McKay was the driver and asked Ritchie specifi- cally if McKay refused. Ritchie did not testify and was not shown to be unavailable. Thus when Adams discharged McKay he did not know that after first refusing McKay had changed his mind and expressed willingness to go, and that at this point Murray had permitted McKay to remain in Pensacola and to pull the trailer from there. In any case Adams must have known and certainly had access to records which would have shown, that in fact McKay pulled the load to Atlanta and that it arrived on time. The fact that President Adams made a big point that this was a direct order from him and that McKay had refused to obey it, when before the situation tightened between the Company and the prounion drivers a relaxed relationship had prevailed, is added proof that Adams was out to eliminate McKay and seeking a pretext to ac- complish it, because of McKay's union sympathy and to discourage further support for the Union and to defeat it at the forthcoming election. No other conclusion explains Adams' statement at the severance interview that McKay would be barred from the property "tomorrow." Upon the preponderance of the evidence in the entire record I conclude that McKay's discharge for these reasons was a further violation by Respondent of Section 8(a)(3) and (1) of the Act. 6. The severance of Buren R. Kirksey Between July 1, 1966, and the hearing herein in early May 1967, Respondent hired six over-the-road drivers, four including Kirksey in July 1966, one on August 29, 1966, and one on February 4, 1967. All were hired as ex- tra, extra drivers. This was a regular classification Respondent had for over-the-road drivers who pulled runs the extra drivers could not handle. Although their work was necessarily irregular, they had a status with Respondent greater than no status at all. It was un- derstood that they would be used when needed. Of these six new hires, all but Kirksey were still work- ing for Respondent in early May 1967. Kirksey was hired, used on only three runs, and was never given any further assignments. Chief Dispatcher Snell testified that the volume of Respondent's work is somewhat seasonal, that the "rush season" is in the summer, beginning in "March, April, May, June, July, August." He said it begins dropping off in August. There was no testimony whatsoever about any alleged busy or rush season in 1966, whether there was one, or when it began or ended. The record raises the question as to why Respondent hired four new drivers in July 1966, one the third week and three the fourth week, if the busy season was to begin dropping off in August. Adams' statement to Kirksey on July 28 suggests the answer. Kirksey credibly testified and Adams denied that in Kirksey's employment interview on July 28 Adams told him that he would "overpower" the Union one way or the other, and that they were "fixing" to hire some more men. (This sentiment was consistent with Adams' August 14 threat to an employee, as has been seen above, that if the Union came into the plant, Respondent would hire more drivers.) The testimony of Kirksey, Adams, and Snell concerning this interview shows beyond question that one of the main subjects on Adams' mind in the interview was Kirksey's attitude towards the Union. Adams raised the question of the Union, asking if Kirksey knew that Respondent was having a union problem, and inter- rogated Kirksey as to his attitude toward the Union. Kirksey replied that he knew of Respondent' s union problem, that he had worked for a union company in Columbus, Georgia, that he had been in the Union for 6- 1/2 years, and that the Union has its good points and its bad points. It was at this time that Adams replied, as he testified, that as far as he was concerned the Union had no good points at all. Kirksey's testimony was undenied that Adams said that he had his doubt about Kirksey. The interview ended with Adams saying that Respondent would use Kirksey when they had some extra runs. As Kirksey left Adams told him he wanted him "to vote him a big ole no" at the election. The following day, July 29, Snell had Kirksey fill out an application blank, asked him for his doctor's cer- tificate, and another company man gave him a driver's test. Then in the next 3 days Kirksey was assigned from G.F.A. TRANSPORTATION CO. Dothan on two trips to Atlanta and one to Florida. He was called back to Dothan from Florida empty, and has never been given an assignment since, although he went back several times seeking further runs. According to Kirksey's credible and credited testimony, Snell told him upon his return from Florida that Adams told Snell they would have to let Kirksey go, that they had too many drivers. Snell gave Kirksey a check. The General Counsel contended and proved that Kirk- sey was hired on a permanent basis, although Respondent contended otherwise. Kirksey had worked a couple of days as a dockworker for Snell a year and a half before and ever since then had been contacting Snell seeking an over-the-road job. Kirksey had been a truckdriver for 14 years. He contacted Snell seeking a driving job numerous times in 1965 and 1966. When Kirksey was finally hired by Respondent in July 1966, it was Snell who took the initiative to get in touch with Kirksey and to offer him a job. Kirksey was in Mis- souri driving for another employer. In view of Kirksey's long efforts to come to Respondent as a driver, Snell ob- viously knew that Kirksey wanted a permanent job with Respondent. Further, clearly Kirksey would not leave his employment in Missouri to return and make only three runs for Respondent. Kirksey's job in Missouri would probably have lasted through August. That Kirksey was given a permanent job was shown further by the fact that he was asked to fill out an applica- tion form, which would appear to have been unnecessary and unlikely if he was being engaged to pull only three runs for Respondent. Presumably this application in- cluded a list of his former employers, including the union company for which he had worked in Columbus, Georgia, which company was clearly easily accessible to Adams by telephone. Further, Adams' request for a "no" vote at the election showed that Adams expected Kirksey to be around at election time. That Kirksey was given a permanent job was further shown by the fact that all the extra, extra drivers hired at or about the same time were kept on and were still work- ing for Respondent at the time of the hearing some 10 months later. At the General Counsel's request Respondent produced a list containing the names and dates of hire of all over-the-road drivers hired by Respondent since July 1, 1966. The parties stipulated that the list correctly set forth the names and dates of hire of all such employees. This list and stipulation showed that Kirksey was hired July 29, and that Ira Varden was hired August 29, 1 month later. Although Respondent was in touch with Varden prior to August 29, there was no clear proof that on July 29 Respondent knew when Varden would report and be hired. Incredibly Snell testified in substance that Kirksey was let go on August 1, because Respondent had no more extra runs for him in view of the fact that Respondent had hired Varden. Varden's date of hire was August 29. There was no evidence that Respondent could plan up to 28 days in advance how many extra runs it would need drivers for during the 28 days. To the contrary extra drivers received their assignments only a matter of hours before they,were expected to start driving their load. President Adams testified that Respondent does not store any freight and that "we know where we are going to have to deliver it (freight) after we get it.... We are a motor common carrier, which handles general freight." 409 In any case Respondent failed to show that its volume of extra, extra runs fell off just after Kirksey was hired; or that Respondent learned just after Kirksey was hired that the volume of extra, extra runs was going to fall off. The fact that after Kirksey was let go, Varden was hired on August 29, and another driver was hired February 4, 1967, proves, to the contrary, that there was enough ex- tra, extra running to keep two additional drivers busy after Kirksey was discharged. President Adams questioned all six of the over-the- road drivers hired after July 1, about their union sym- pathies. Insofar as the record shows, of these six, Kirksey was the only one who said a good word for the Union or who had worked for a "union" company. The only con- clusion permitted by the record is that Kirksey was let go after three runs because President Adams decided in the meantime that Kirksey was in favor of the Union, or at least not a safe risk, and would be a vote for the Union if permitted to remain. As the record established, at this time President Adams was interested in hiring drivers who would vote against the Union, not those who would vote for it. The petition was filed July 22, and between then and the October 10 election, Adams discharged four prounion drivers and hired four drivers of whom Kirksey was the only one shown by the record to have known anything about the Union or to have any sympathy towards it. This conclusion is not nullified by the fact that Adams permitted Kirksey to pull a few runs after he learned of Kirksey's previous employment by a "union" company and of Kirksey's capacity to see something good in the Union. These several days gave Adams time to check into Kirksey's background, if he wished to, and gave him time to think about Kirksey. For Adams to have refused employment to Kirksey in the employment interview im- mediately after learning of his union background would have been too obviously an antiunion move for Adams; despite his threats, in his actual carrying them out he bided his time and waited for seemingly good causes to make his antiunion discharges. Upon the above facts and considerations, and upon the preponderance of the evidence in the entire record con- sidered as a whole, I believe and find that Respondent discharged Kirksey on or about August 1, 1966, because it suspected him of sympathy towards the Union, because it wished to eliminate a prounion vote in the forthcoming election, and in order to discourage further driver sym- pathy and support for the Union, Respondent thereby further violating Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IH, above, occurring in connection with Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the un- fair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirm- 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Thomas Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey because of their actual or suspected union activi- ties and because of the other reasons stated above, and not having offered them reinstatement, I recommend that Respondent offer to these four employees immediate and full reinstatement to their former or substantially equivalent positions8 without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, the date of the discrimination against him, to the date when, pursuant to the recommendations herein, Respondent shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of in- terest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recom- mend further that Respondent make available to the Board on request, payroll and other records in order to facilitate the checking of the amount of the backpay due. Kirksey's earnings shall be considered to be the average earnings of all the extra, extra drivers (including but not limited to James Rice, Willie Hughes, Norman Burgess, Ira Varden, and Elmer Adams, the five who were hired from July 1, 1966, to early May 1967) from August 1, 1966, until the date Respondent shall offer Kirksey rein- statement. In view of Respondent's flagrant violations of the Act, I recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. G.F.A. Transportation Company, of Dothan, Alabama, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 991, affiliate of International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Thomas Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey, thereby discouraging membership in the above-named Union, 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 numerous acts including many threats, warnings, promises, interrogations, advises, engaging in and giving the impression of engaging in surveillance, in- terference, restraint, and coercion, soliciting employees to form a committee to stop the Union and to stop the Union by signing petitions and in other ways, urging em- ployees not to attend union meetings, threats to sell Respondent and to move it out of Dothan, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the preponderance of the evidence in the entire record considered as a whole, I recommend that G.F.A. Transportation Company, of Dothan, Alabama, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters, Chauf- feurs, Warehousemen & Helpers Local Union No. 991, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., or any other labor organization of its employees, by dis- criminating in regard to their hire or tenure of employ- ment or any term or condition of employment. (b) Making any threats, warnings, advises, promises to or interrogations of employees because of their union activities, engaging in or giving the- impression of engag- ing in surveillance, soliciting employees to form a com- mittee to stop the Union or to stop the Union by signing petitions and in other ways, urging employees not to at- tend union meetings, threatening to sell Respondent and to move its place of business, in order to defeat the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-'organization, to form labor organizations, to join or assist Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 991, affiliate of International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer reinstatement to Thomas Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey, in ac- cordance with the recommendations set forth in "The Remedy" herein. (b) Make whole Thomas Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey, for any loss of pay they may have suffered by reason of Respondent's dis- crimination against them, in accordance with the recom- mendations set forth in "The Remedy" herein. (c) 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. (d) Notify the employees herein found discriminated against if presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act 8 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 G.F.A. TRANSPORTATION CO. and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its offices, drivers rooms, and yard in Dothan, Alabama, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (1) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.10 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States 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." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial 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: After a trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Rela- tions Board found that we, G.F.A. Transportation Com- pany, violated the National Labor Relations Act, and or- dered us to post this notice to inform our employees of their rights. The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things 411 The Trial Examiner has also ordered us to assure our employees that: WE WILL NOT do anything that interferes with these rights. You are free to join the Teamsters Union or any of its Locals, or any other union, and, by.majori- ty choice, to select any union to represent you in bargaining with us. WE WILL NOT fire you or look for reasons to fire you or threaten to fire you, or treat you differently in any way, because you join or favor a union or help a union organize our employees. WE WILL NOT spy on your union meetings or union activities or do or say anything which will give you the impression that we are spying. WE WILL NOT threaten if the Teamsters represent you we will go out of business or move our terminal out of Dothan, or threaten any other action contrary to your interest. WE WILL NOT make any threats or warnings to you, or give you any advises, or make any promises to you, in connection with your union activities. WE WILL NOT ask you any questions about your union activities or views. WE WILL NOT ask you to stop the Teamsters or any other union by forming a committee or by signing petitions or by doing anything else. WE WILL NOT urge you not to attend union meetings. The Board Trial Examiner found that when we fired Thomas (Buster) Traylor, John McKay, Arthur Hughes, and Buren R. Kirksey, we did this because these employees were for the Union and to discourage you from being for the Union. The Trial Examiner found that this violated the Act. WE WILL give Traylor, McKay, Hughes, and Kirk- sey their jobs back, and WE WILL make up the pay they lost and also pay them 6 percent interest. G.F.A. TRANSPORTATION COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361.