Davis Transport, Inc.

DAVIS TRANSPORT Davis Transport, Inc. and Local Union No. 236, Af- filiated With International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-4100 January 31, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 7, 1967, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed a motion to remand the Decision to the Trial Examiner for further consideration, and also exceptions to the Trial Examiner's 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 and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, Respondent's motion, and exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations as modified herein.2 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, Davis Transport, Inc., Paducah, Kentucky, its officers agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified:3 1. Delete paragraph 1(b) and reletter the remain- ing paragraphs accordingly. 2. Delete from paragragh 2(f) that part thereof which reads "to be furnished" and substitute therefor "on forms provided." 3. Delete from the notice the entire second in- dented paragraph. I Respondent filed a motion to remand the proceeding to the Trial Ex- aminer for a ruling on Respondent's motion to strike certain testimony and for a further statement as to the extent to which the Trial Examiner relied upon the testimony. The motion is denied as lacking in merit. 557 2 The record shows that the Union in a letter to Respondent stated that it represented a majority of Respondent's employees in a bargaining unit of all truckdrivers in the Paducah terminal, and requested recognition as exclusive bargaining representative of such employees. Such letter, ad- dressed to "Davis Transport, Inc , Wade E Davis, Vice-president" was delivered by registered mail to Respondent's premises on November 4 It apparently remained unopened until Vice President Davis, the son of President Davis, on November 7 returned from an absence On this date Vice President Davis showed the Union's letter to President Davis. On November 10, 1966, Respondent advised the Union that Respondent did not believe the Union represented the employees, questioned whether the unit sought was appropriate, questioned the validity of the cards, and sug- gested that the matter be referred to the Board. We do not adopt the Trial Examiner's conclusion that a demand for recognition occurred on November 3, 1966, when President Davis met with the drivers. However, whether the demand was made on November 4, or 7, there was a clear refusal to bargain on November 10, and on all of these dates, based on our adoption of the Trial Examiner's various unit placement findings except as modified below, we find that the Union represented a majority of the employees in the appropriate unit. With respect to Thompson, the record shows that although he was for- merly a regular driver with Respondent, he left Respondent and went to work for his father when his father obtained a large contract for timber. After the discriminatory discharges, Thompson "came in," "offered his services," and "drove for a few days." Under these circumstances, we unequivocally exclude Thompson from the unit and do not count him in determining the majority. We do so for two reasons first, because the record does not establish a reasonable expectancy of his returning to work for Respondent on a permanent basis after he went to work for his father; and, second, because he was employed during the relevant period only as a temporary replacement for a discriminatorily discharged employee. See Tampa Sand & Material Company, 137 NLRB 1549. 3 While the Trial Examiner in his Recommended Order and notice al- luded to unlawful interrogation of employees by Respondent, we note that no such fording was made by the Trial Examiner. In these circumstances, we hereby strike from the Recommended Order and the notice the references to unlawful interrogation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKES, Trial Examiner: The complaint herein was issued on December 30, 1966,1 pursuant to a charge and amended charges filed on November 14, and 23 and December 14 and 19, by Local Union No. 236, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and served on Davis Transport, Inc., herein called the Respondent or Company. The Respondent is alleged to have engaged in unfair labor practices by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, as amended, as well as by the discharge of certain employees because of union or concerted activities and by its refusal to bargain collectively in good faith with the Union, in violation of Section 8(a)(1), (3), and (5) of the Act. By answer duly filed, Respondent admitted the jurisdictional allegations of the complaint and the supervisory status of its pre- sident, Davis, and its general manager, J ody. It denied the alleged supervisory status of its dispatcher, Powell, but at the hearing admitted that allegation of the complaint. It further denied that one James Ward was its agent and de- nied the commission of unfair labor practices. A hearing was held before me at Paducah, Kentucky, on March 7, 8, and 9, 1967, at which all parties were I All dates hereafter are 1966 unless otherwise noted. 169 NLRB No. 80 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented and were afforded full opportunity to par- ticipate, examine witnesses, and adduce relevant evidence. Briefs have been filed by the General Counsel and Respondent and have been given careful considera- tion by me.2 Upon the entire record in this case, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Respondent is a Kentucky corporation engaged in the transportation of gasoline, fuel, lime, cement, and other products from its terminals located at Paducah, Ken- tucky, and Dawson Springs, Kentucky. During the 12 months preceding the issuance of the complaint, Re- spondent in the usual course and conduct of its business operations sold and distributed products the gross value of which exceeded $500,000. During the same period it sold and shipped materials in excess of $50,000 from its terminals in Kentucky directly to points outside the State of Kentucky. The complaint alleges, Respondent's answer admits, and I find that the Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges , Respondent's answer admits, and I find that the Union is now 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. The Issues As noted above, the complaint alleges that the Re- spondent has committed unfair labor practices in viola- tion of Section 8(a)(1), (3), and (5) of the Act. There are therefore three primary issues: 1. Whether the Respondent has interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 of the Act? 2. Whether the Respondent discriminatorily discharged nine employees on or about November 3 and caused one of them, Bobby Griffith, to quit his employ- ment on or about December 9, because of their union ac- tivities? 3. Whether the Respondent unlawfully refused to bar- gain collectively with representatives of its employees? B. 8(a)(1) Most of the Respondent's drivers working out of the Paducah facility testified in this proceeding. From their testimony, which I credit, it appears that some of them signed union-authorization cards on November 2 and others during the early morning hours of November 3. On the morning of November 3 several of the drivers met with Respondent's President Davis. According to Davis, 2 Respondent's unopposed motion to correct the transcript by substitut- ing "November" for "December" at 1 22, p. 24, is hereby granted. he had been at the Dawson Springs facility that morning and had received a telephone call from Paducah inform- ing him of "some trouble" there. Upon his arrival at Paducah, he was informed that there was " union trouble" and that some of the boys were trying to sign up for the Union. He then called the drivers to his office and asked them what the trouble was all about. The drivers told him that they had signed up for the Union. Davis expressed his disappointment but refused to discuss the Union at that time until he could consider the circumstances. The drivers then turned to leave whereupon Davis asked them to turn in their keys, timecards, and credit cards. The drivers, on the other hand, testified that when Davis heard they had signed up with the Union, he told them that he could not pay union wages. Driver Harper then said that Davis would receive a letter from the Union and that if Davis had anything else to say he should say it to the union representatives. At that junc- ture Davis retorted that if the employees felt that way to turn in their keys, timecards, and credit cards. With minor variations, this version of the November 3 meeting was corroborated by the other drivers present; and I credit their testimony after considering not only their demeanor but the implausibility of the version given by Davis. I find it unlikely that Davis would order the drivers to turn in their keys, timecards, and credit cards merely because they were leaving, as he claims, to attend a meeting. It ap- pears that such an order was never issued to the drivers in the past despite occasional, absences. I find it more likely that the order to turn in keys and cards was a manifestation of Davis' disappointment, if not anger, at the news of the unionization of his drivers. A second meeting was held by Davis with the drivers on November 3. At the second meeting the drivers discussed complaints they had concerning working condi- tions as well as their remuneration. According to Davis, he told them that since they worked on a percentage of the tariffs received by the Respondent and since the Respondent was working on raising these tariffs, the drivers' salaries would automatically, go up when the Respondent's rates were raised. The drivers, on the other hand, while confirming that the discussion concerned working conditions and rates, testified that Davis promised to try to get rates raised, rather than such objec- tive being already in process. Moreover, it was unclear as to whether the raise in rates referred to the Respondent's rates or to the drivers' rates of pay. Again I credit the testimony of the drivers in this respect, and, find that the comments of President Davis created an impression that he would try to get the drivers' remuneration increased. Such promises of benefit made so soon after Davis learned of his drivers' union membership must be deemed to have been intended to counter the union drive and con- stitute an interference with the rights of the employees in violation of Section 8(aa(1). This conclusion is fortified by additional testimony of the drivers, which I credit, that during this meeting Davis informed them, that he would have to close up and go out of business if the Union came in. Driver Haley testified that during the second meeting of November 3 mention was made about some of Respondent's employees at Dawson Springs having been fired. After refreshing his recollection by examining an af- fidavit given by him sometime ago, Haley testified that Davis said the Dawson Springs' employees were fired "because they were having wrecks and they were trying to push the Union in real hard." I credit his testimony and DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that such language suggested a similar fate for the Paducah drivers, a threat in violation of Section 8(a)(1). A similarly thinly veiled threat was made to driver Langston at a conversation he had with Dispatcher Powell on November 2. During that evening Powell telephoned him and told him that he had heard Langston's name was on a list of those signed up for the Union. He also asked Langston what "the boys were doing" and told him that the union activity didn't concern a lease operator such as Langston. That same night, Powell also phoned driver Griffith's house and spoke to driver Moffitt there. He told Moffitt he didn't think the Union would benefit the drivers a bit, adding, that they "knew what would hap- pen the next morning when [they] came in to work because [they] had signed a Union card." Several days later Powell approached Langston at the terminal and asked Langston to sign a blank sheet of paper containing only a date. He also showed Langston a draft of a letter which had been prepared by Powell and asked Langston to copy it on the blank sheet of paper. The letter which Powell asked Langston to copy was a letter of resignation from the Union. Langston signed the blank sheet of paper but, being in a hurry, asked Powell to fill it out and mail it. Langston never saw the completed letter, if in fact it was completed, nor did he supply Powell with an envelope or postage. Powell also solicited driver Haley to withdraw from the Union on or about November 7. He showed Haley a letter of resignation which Haley copied. He then told Haley he would send it by registered mail to the Union. Haley, himself, however, never informed the Union of any withdrawal intention. On November 12, Powell called Moffitt to his home. Driver Vaughan was also present. On this occasion, Powell told Moffitt and Vaughan that he wanted them to forget about the Union and sign a withdrawal card or letter, adding that "things would go back to the way ... they had before this Union thing all came up." Other attempts were made to have the drivers abandon their union allegiance. Driver Vaughan testified that he took a load of gas from the Paducah terminal on the morn- ing of November 3 and on his way back telephoned Powell to ask if there was anything else to do. Powell replied that he had a "lot of loads" at Paducah but that the "other drivers don't want to work, they'd rather have a Union down here." When Vaughan returned to the ter- minal, Powell met him and drivers Ward and Angel and sent them to Davis',office telling them, "See if you all can't work something out between the company like a Company Union or something." In the evening of November 3 Powell telephoned Vaughan at his home and, said, "here's someone wants to talk to you ... What he is going to tell you is the God's truth." Then driver Ward got on the phone and told Vaughan that Davis had given him authority to call Vaughan back to work, "to forget thus lTnionTusiness and come back for the company," adding, "You either come back for the company or you're out." The next morning Vaughan saw Powell at the terminal and Powell told him, "You know you can go back to work like nothing ever happened if you'll just forget this Union deal." Similarly, Ward told driver Griffith that he could come back to work if he forgot about the Union. Griffith was also asked on November 3 by Manager Jody to talk to drivers Vaughan, Moffitt, and Williamson to get them to forget about the Union and come back to work for the Company. 559 I credit the testimony of these drivers and find the Respondent's solicitation of these drivers to withdraw from the Union to be coercive and intimidating, in viola- tion of Section 8(a)(1) of the Act. Phil-Modes Inc., and Harold Berlin dibia Berlin Coat Manufacturing Co., 159 NLRB 944. Although driver Ward's utterances would or- dinarily not bind the Respondent since he did not occupy a supervisory status with the Respondent, special circum- stances make a contrary conclusion inevitable. Super- visor Powell altered the ordinary driver status of Ward when he initiated the telephone conversation between Ward and Vaughan and clothed Ward with apparent authority to speak for the Respondent by telling Vaughan that Ward spoke "God's truth." Although Powell testified that he left when Ward took the telephone and therefore was unaware of what Ward is alleged to have said to Vaughan, he failed to deny that he introduced Ward as telling "God's truth." I credit Vaughan's testimony to that'effect and having found that Powell made such a statement to Vaughan, the fact that Powell did not remain to hear what Ward said will not relieve him and the Respondent from the consequences that developed. C. Section 8(a)(3) Reference has been made above to the meeting of November 3 between Davis and some of the drivers. The drivers present at that meeting were Griffith, Williamson, McClain, Moffitt, Weaver, Harper, and Haley. As found previously, Davis ordered them to turn in their keys and cards when he was told that he was to receive a letter from the Union and to talk to the union representatives if he had anything else to say. Respondent argues that these employees were not discharged, citing the fact that Davis did not use the word "fire" or "discharge" at the November 3 meeting. I consider this argument without merit. In view of the fact that similar instructions had never been issued before to the employees, I find that his utterances were tantamount to a discharge. This conclusion is fortified by contemporaneous and subsequent events. Thus, General Manager Jody told Langston on November 3 that the other drivers were no longer associated with the Respondent. On the following day, November 4, when the drivers came to get their regular paychecks, other employees were seen driving the trucks. When driver Lamb told Powell that he was ready for work, Powell replied that he would call him if needed. When Harper turned in his timecard, Davis said, "Sorry to see you boys quit," to which Harper replied, "Quit hell. We're fired." Significantly, Davis made no response. Driver Vaughan was not at the November 3 meeting. That evening, however, Driver Ward, speaking what Powell called "God's truth," told him he was "out" un- less he forgot the Union; and the following morning Powell said virtually the same thing. Driver Lamb had trouble starting his car on the morn- ing of November 3. He telephoned Powell and asked Powell to send the mechanic out. In a few minutes Powell called back. He asked Lamb if Lamb had signed a union card. When Lamb answered that he had, Powell told him "there is no sense in you coming over then." Lamb said he was going to "turn his fittings and things in" and Powell said "all right." There is no doubt _that the Respondent not only knew that an organizational campaign was underway, Davis having admitted that he was called from the Dawson 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Springs terminal because of "union trouble" at Paducah on the morning of November 3, but there is also no doubt that Davis was aware of the union membership of the seven drivers with whom he had a meeting on the morn- ing of November 3, having been told by them that he would receive a letter from the Union shortly and that further conversations should be held with the union representatives. His immediate retort to them to turn in their keys and cards was an effective discharge of these seven drivers as confirmed by the discharges of Lamb and Vaughan who were not present at the meeting but who were discharged immediately after Respondent learned of their union adherence. I find that drivers Grif- fith, Williamson, McClain, Moffitt, Weaver, Harper, Haley, Lamb, and Vaughan were discharged by the Respondent on November 3 because of their union mem- bership, in violation of Section 8(a)(3) of the Act. On November 10, Davis wrote a letter to each of these nine drivers, telling them that they had not been discharged. It is significant that when Davis made his position clear, seven of the nine drivers came back to work, the other two having found other jobs in the mean- time. Dispatcher Powell called driver Griffith back to work on November 8. When Griffith returned on the following day, he found driver Clark driving the truck which he had been driving for several months prior to November 3. Griffith was assigned an older truck which he had driven for a while in the past. The newer truck, which he had been driving for several months prior to November 3, was easier to drive than the one he was assigned on November 9 because of differences in the gear shifting. More importantly, the runs assigned to Griffith after his recall on November 9 were quite different from those given to him prior to November 3. Although he had been pulling several loads of gas from Memphis and occa- sionally running double with another driver on Louisiana trips, these runs were discontinued for Griffith after November 9. Instead, he was given shorter runs hauling lime dust and cement despite the fact that he preferred the other type of runs and had so informed Powell a long time ago. Other drivers were given the runs which Griffith had been given in the past. Although Griffith made approxi- mately as much money on the shorter runs after November 9 as he did on the preferable runs before November 3, there was more work and time expended by him to accomplish that result. At no point did Respondent offer any evidence explaining its failure to return Griffith to the runs he had prior to November 3. On December 9 Powell assigned Griffith a gas run to be delivered to Poplar Bluff, then to Memphis, and finally to Jackson, Tennessee. This run would have taken Grif- fith from 7:30 in the morning until 10:30 the following morning with waiting periods in between, unlike his previ- ous gas runs which went from Poplar Bluff to Memphis and then back to Paducah without waiting periods. Ac- cording to Powell, Griffith said, "I'm tired of you crabbing on me and giving me these loads and I'm not going to haul it," to which Powell replied, "Well, Bobby, I don't have anything else for you." Later that same day Griffith asked Powell if he was fired. To which Powell replied, "Yes, Bobby, you're fired." Griffith went to the office to pick up a check and was told by Davis, "Any time a driver refuses to pull a load for me he automatically quit." Respondent argues that Griffith was not discharged because of his union activity on December 9 but because of his refusal to take a load. It cites the testimony of its dispatcher, Powell, that in June or July 1966 he had similarly discharged another driver for refusing to take a load. As Powell described that incident the driver said, "I don't think I'll take this damn load .... It don't pay." Powell answered, "Well, you can either take that load or • take your can out the door, either one you want to, it don't make me any difference." The driver answered, "Well, I ain't going to take it." Whereupon Powell told him to "haul his freight out the door." It should be noted that in that earlier dismissal incident Powell gave the driver a clear choice between taking the load or being discharged. No such alternatives were suggested to Grif- fith. Indeed, once before Griffith had refused to make a trip ordered by Powell and Powell had simply said OK, he'd get somebody else. Moreover, I deem it significant that during the 30-day period from November 9 to December 9, while Griffith was deprived of his usual and preferable runs of the immediate past and while Griffith wore his union button conspicuously and continuously, Powell once remarked, "Is that thing worth anything?" At another time he walked up and pulled at the union but- ton saying, "Everytime I see that damn thing I want to throw it just as far as I can." These manifestations of union animus directed at Griffith after he was recalled on November 9, taken together with the fact that Griffith complained to Powell about the less desirable runs he was being given, plus the fact that Powell did not indicate that Griffith's acceptance of the assigned run was a condition of his continued employment, lead me to the conclusion that Griffith's refusal to make the run was seized upon by the Respondent as a pretext to rid itself of an open ad- herent after changes in Griffith's working conditions had failed to result in his quitting. It was not unreasonable for Griffith to assume Powell had given him the option of ac- cepting or refusing a run, as he had once before, rather than to realize that his rejection of a run meant his discharge. See Memphis Moldings, Inc., Stairway Div., 164 NLRB 524. Whether Griffith quit or was discharged becomes imm material inasmuch as his refusal to accept the assigned trip was prompted by Respondent's unexplained institu- tion of worse working conditions for Griffith after his re- call on November 9. D. Section 8(a)(5) As noted previously, Respondent has two facilities, one at Paducah, Kentucky, which is the subject of this proceeding, and another at Dawson Springs, Kentucky. Some of the drivers testified that there were 18 drivers working out of the, Paducah facility. Davis testified that he had 42 drivers. The only documentary evidence of the employee roster is a list compiled by the Respondent and received in evidence, containing 54 names of employees, their classifications, their dates of hire, and their dates of separation. Of the employees on said list, 14 are classified as drivers and work out of the Paducah terminal: Moffitt Lamb Vaughan Clark Griffith Flood Weaver Ward Haley Harper McClain Angel Williamson . Irvan DAVIS TRANSPORT Two other drivers, Edmonds and Hutson , have special runs to Calvert City, but work out of the Paducah ter- minal and bring their bills there, too. Of these, all but Irvan, Edmonds, and Hutson signed union authorization cards on or before the morning of November 3, which cards were authenticated by the signers or by others who witnessed the act.3 In addition, the list contains the names of five so -called lease drivers: Langston Mickle Swinford Foster Collins Of these, Langston and Swinford signed union' authorization cards on or before the morning of November 3. In addition, the fist contains the names of three em- ployees classified as drivers, on leaves of absence: Driver Date of Hire Date of Separation Hall 8/29/66 - 9/29/66 Potter 8/29/66 10/28/66 Whitehead 9/ 8/66 10/28/66 In addition, several employees are listed with hyphenatedjob classifications , suggesting dual functions: Buchanan - Driver-mechanic Finnie - Driver-safety director Miles - Driver-serviceman Tapp- Driver-serviceman In addition, the list includes Pickett and Thompson as drivers but with starting dates of November 7, 1966. The list also contains the names of five employees clas- sified as mechanics, four females as secretaries in the of- fice, a parts manager, and a dispatcher at each terminal. Finally, the list contains the names of 12 employees classified as drivers who work out of the Dawson Springs terminal under the immediate supervision of one of the dispatchers. The complaint alleges that all truckdrivers employed by the Respondent at its Paducah, Kentucky, terminal but excluding mechanics, safety men, office clerical em- ployees, guards, and supervisors as defined in the Act constitute an appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(b) of the Act. It appears that Respondent's contention that there were 42 truckdrivers in his employ rests on the inclusion of the 16 drivers in Paducah, the 12 drivers at Dawson Springs, the 5 lease-operators , the 3 drivers- on leaves of absence, the 2 driver-servicemen, the driver-mechanic, the driver-safety director, and the 2 who were hired on November 7. There appears to be no dispute that of the 54 employees listed, 12 employees, the 5 mechanics, the parts room manager, the 2 dispatchers , and the 4 secreta- ries, do not belong in the unit. It further appears to be agreed that 16 employees, the 14 drivers working out of Paducah as well as the 2 having special runs to Calvert S Respondent has moved to strike the card of driver Clark as not being properly authenticated. Driver Harper at first testified that he did not see Clark sign the card, but upon refreshing his recollection by reading a state- 561 City, properly are included in the unit. What must be de- cided is whether any or all of the other 26 employees are properly included in the determination of an appropriate unit. 1. The Dawson Springs drivers Respondent argues that the business of Davis Trans- port, Inc., is "so integrated that all employees whether at the Paducah, Kentucky, location or Dawson Springs lo- cation constitute an appropriate unit." I doubt this state- ment is meant to be taken literally inasmuch as no argu- ment has been presented for the inclusion of the 12 em- ployees, such as mechanics and secretaries , in the unit. Moreover, Respondent's witnesses referred repeatedly to the employment of 42 drivers in the unit which is the number of employees after deducting those 12 from the total of 54 employed. It appears, therefore, that the thrust of Respondent's argument is to include the drivers, work- ing out of its Dawson Springs terminal with those work- ing out of the Paducah terminal. Record evidence supports the conclusion that Pres- ident Davis is in charge of operations at both facilities and that the drivers of both facilities work under the same terms and conditions of employment. President Davis, however, testified that coke was the only product handled regularly at Dawson Springs and that coke is not handled at the Paducah terminal. Further, each terminal has its own dispatcher who assigns the trips to the drivers work- ing regularly out of that terminal. Each terminal has its own mechanic, although for major repairs, trucks working out of Dawson Springs are brought into Paducah. In addi- tion, the terminals are about 60 miles apart. Most impor- tantly, there appears to be little, if any, interchange of drivers between the two terminals. President Davis, who, counsel for the Respondent argues, is the supervisor of both terminals, testified that he had no idea of how many employees from Paducah went to Dawson Springs to work or from Dawson Springs to Paducah. Of the drivers who testified only two of the Paducah drivers appeared to have any runs out of Dawson Springs. Driver Harper stated that, "I would go up maybe and pull one or two loads, maybe three, then come home." When asked, "How frequently?" he answered, "I'd say about once a month, maybe not that many times." Driver Williamson testified that only twice during the last 6 months had he hauled coke from Dawson Springs. I conclude that the single terminal unit of Paducah drivers is presumptively appropriate for the purposes of collective bargaining. Groendyke Transport, Inc., 164 NLRB 1. 1 It appears to be the Board's well-settled rule that a single plant, or similar facility, is presumptively ap- propriate absent the showing of such factors as, for exam- ple, a history of bargaining on a broader basis or the es- sential loss of identity of a facility through its merger into an integrated operation. Dixie Belle Mills, Inc., 139 NLRB 629; Frederickson Motor Express Corporation, 121 NLRB 32. The record does not support the Com- pany's position that only the broader unit is the ap- propriate unit, here. There is no history of bargaining on a broader basis here, nor the loss of identity of either ter- minal facility. Indeed, on November 3, General Manager Jody told some of the drivers they should have first come ment made by him at an earlier date, testified that he did see Clark sign. Respondent's motion must be denied and I credit Harper's testimony as modified after refreshing his recollection of the event. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and talked to him about the Union. Harper replied, "And get fired like those guys did at Dawson Springs." Jody then asked each of the drivers what Dawson Springs had to do with them and said that Dawson Springs didn't have anything to do with them. Respondent relies on Helms Motor Express, Inc., 107 NLRB 132, but I find that reliance misplaced. In that case the Board held a unit consisting of 11 terminals to be appropriate but pointed out specifically "there is in- terchange of employees between terminals." That is prac- tically nonexistent here or so slight as to be considered in- significant. With the elimination of 12 Dawson Springs drivers from the total of 42 drivers claimed by the Respondent, we have at the most only 30 drivers in the unit urged by the Respondent. 2. Drivers on leaves of absence Respondent argues that drivers Hall, Potter, and Whitehead must be included in the unit because they were on leaves of absence on November 3 and that such employees will return to the employment of Respondent during its peak seasonal period of activity. President Davis testified that two of these three drivers were "brand new but a third had worked for the Company be- fore." He was unable to remember which one that was. The employee roster prepared by the Company and of- fered in evidence by it recites that all three of these drivers were hired in August and September 1966 and were separated in September and October of the same year. Since the roster was prepared from payroll records and in view of the uncertainty of Davis' testimony, I con- clude that all three of these drivers were "brand'new" in 1966. Davis further testified that before these drivers left the Company they requested leaves of absence saying that they would be back in the spring. He did not know, however, where they were working at the time of the hearing except that they were working for another firm in another State. I do not consider these three drivers to be on leaves of absence within the ordinary meaning of that term. Their absence was of indefinite duration and their return was within their own discretion. Such a loose arrangement cannot be regarded as a continuing employer -employee relationship. Sullivan Surplus Sales, Inc., 152 NLRB 132, 155. The result is no different considering these three drivers as seasonal employees. Although they worked in the earlier fall season of 1966, they had not been recalled as of November 3 and are not properly includable as of that date which should reflect the actual employment of a representative number of employees, Madsen Wholesale Co., 139 NLRB 863, 864; Sullivan Surplus Sales, Inc., supra. With the exclusion of these three drivers on so-called leaves of absence, the maximum number of drivers ar- guably includable in the unit drops to 27. Union authorization cards signed by 15 of the 27 drivers were received in evidence and constitute a majority for bar- gaining purposes. It would, therefore , appear unnecessa- ry to decide whether more of these 27 drivers should be excluded from the unit. Inasmuch as reviewing authori- ties may differ with my previous conclusions, some com- ment is appropriate nevertheless. 3. Pickett. and Thompson According to the Employer's list of employees received in evidence, both of these drivers were hired by the Respondent on November 7. President Davis testified that Thompson had driven for the Company the previous summer and had left to drive for his father in another State where he was so employed on November 2. When the Company found itself without drivers after November 3, President Davis testified that Thompson came in and offered his services. It would, therefore, appear that Thompson was not properly includable in the bargaining unit as of November 3. Davis made some mention of Thompson being on a "leave of absence" here as in the case of the three drivers mentioned before. There is no evidence to indicate the duration of the leaves of absence nor the certainty of reemployment by the Respondent at any particular time. As in the case of the three other drivers, I find this. relationship not within, the: ordinary meaning of a continuing employee-employer relationship. As respects Pickett, President Davis testified that that driver had been in the Army for 2 years and came back to his job as driver for the Respondent on November 7. As of November 2 and 3 Pickett was on military leave of absence. As such he is not properly includable in the bar- gaining unit. W. W. Holmes, 72 NLRB 3 9. 4. The dual-function employees Respondent urges the inclusion of four employees who had functions in addition to those of a driver. These are driver-mechanic Buchanan, driver-safety director Finnie, and driver-servicemen Miles and Tapp. President Davis testified that Finnie was Respondent's safety director from sometime in the summer of 1966 until November 1966. He further testified that Finnie drove a truck when the drivers were off after November 3 but, until the drivers were off, he was a safety director. As safety director his duties were to check on the Company's equipment and according to Davis, "try to find out what was costing us so much money." As safety director he was paid a salary which was on a different basis than the drivers who were paid by the trip. It is clear that as of November 2 and 3, therefore, he was not properly in- cludable in the unit, having no community of interest with the drivers of the Respondent. Buchanan, Miles, and Tapp were basically and primari- ly servicemen or mechanics working on the trucks but were also qualified to drive for the Respondent under ICC rules. According to Dispatcher Powell, during the first 10 months of 1966, a period of time which amounted to about 2,000 working hours, Miles spent 61 hours driv- ing a truck to customers and Tapp and Buchanan only 36 hours each. Percentage-wise, these men spent less than 3 percent of their time driving Respondent's trucks to customers. In addition, Powell estimated that they spent 25 to 30 percent of their time driving trucks for the Respondent which trucks were to be loaded or unloaded but not driven to customers by them. For this latter ac- tivity they were paid their regular salary as servicemen or mechanics but, for the 3 percent or less driving loads to customers, they were paid, as were the other drivers, by the trip. Although these three employees were qualified to be drivers, the test for inclusion in the unit is not qualifica- tion but the function performed. Respondent argues that these men should be included in the unit citing Berea DAVIS TRANSPORT Publishing Company, 140 NLRB 516, which held that a dual-function employee devoting less than 51 percent of his time to unit work may have sufficient interest in the unit's conditions of employment to be included in the unit. I cannot conclude that these dual-function em- ployees, having 3 percent or less of their time devoted to the type of work done by the drivers in the unit, would have such a community of interest with them. Although their other driving comprised more than 25 percent of their time, it was a type of driving which was different from that of the drivers in the unit and paid on a different basis. Under all the circumstances I conclude that these dual-function employees are not properly includable in the unit. They do not spend a substantial portion of their time performing identical functions. Cf. Transway, Inc., New Orleans, 153 NLRB 885. 5. The lease drivers Although the record is not quite clear on the specific status of the so-called lease drivers, it appears that the two drivers who signed union cards, Langston and Swin- ford, were also owners of trucks which pulled the Respondent's trailers while the other three lease drivers, Mickle, Foster, and Collins, were merely drivers of trucks owned by persons other than the Respondent. Respondent argues that all five lease drivers are indepen- dent contractors and not employees and should, there- fore, not be included in the unit.4 Lease drivers owning their own trucks lease such trucks to the Respondent by a written document which, among other things, provides that the leased equipment shall be operated under the Respondent's direction and control; that the Respondent may discharge, with or without cause, the driver furnished with said leased equipment by the owner; and that the lease agreement runs from year to year but may be canceled by either of the parties upon 30-day written notice. President Davis testified that the lease drivers driving trucks belonging to parties other than the Respondent are subject to the Respondent's rules and regulations and Respondent may fire them, lay them off, or tell the owner to get another driver. In addition, Davis testified that the Respondent could furnish a driver for such truck. Indeed, Langston testified that Dispatcher Powell put driver Irvan on his truck when Langston was on sick leave. President Davis further testified that the Respondent had the right to fire any driver whether he is a lease driver or a company driver and that the Respondent's dispatcher assigns runs to all drivers regardless,of their status as lease drivers or company drivers. Furthermore, while these trucks are on lease to the Respondent they are not used to pick up other loads but operate only under the authority given to the Respondent by ICC. In view of the right of control vested in the Respondent by the1Iease agreement and the practice of the Respond- ent in directing the day-to-day activities of the lease' drivers in the same manner as company drivers are con- trolled, it follows that these lease operators are em- ployes of the Respondent and are appropriately included in the unit. Indiana Refrigerator Lines, Inc., 157 NLRB 539, and cases cited therein. See also The Maxwell Com- pany, 164 NLRB 713. 4 It should be noted that if Respondent's argument is accepted and the lease drivers excluded from the unit, the Union would have 13 card signers of a total complement of 16 drivers in the unit. 563 6. The majority In summary, the unit includes the 16 company drivers at the Paducah terminal and the 5 lease drivers for a total of 21 drivers. As of the morning of November 3, having obtained authorization cards from 15 of these 21 drivers, the Union had a clear majority of the employees in an ap- propriate unit and I so find. Nor would the result change if I consider the demand for recognition to have been made on November 7 when Davis read the union letter (see discussion below). As of that date, Finnie, Thompson, and Pickett would be in- cluded in the unit raising the total to 24, of which the 15 signatories still constituted a majority. Although drivers McClain and Weaver did not return to work on November 14 when Respondent offered to take all drivers back, thus reducing the number of signatories to 13, the total complement of the unit was also reduced to 22, thus maintaining a majority for the Union even as of November 14. Even the inclusion of the dual-function employees would not change this result. Of these dual-function em- ployees, driver-safety director Finnie cannot be included as of November 3 inasmuch as he had not been doing any driving for the Respondent until after the Company lost the services of its regular drivers on November 3. The other three dual-function employees, if included in the unit, would raise its number to 24 as of November 3, and to 27 as of November 7, of which 15 was a majority. As of November 14, the total would be 25, of which the 13 signatories constituted a majority. 7. The alleged good-faith doubt I have found that the group of truckdrivers at Paducah met with President Davis on November 3 and informed him of their union interest. Moreover, he was told ex- plicitly that further conversations should be held with the union representative and a letter was on its way to him from the Union. A letter in fact was sent by the Union to the Respondent addressed to "Davis Transport, Inc., Wade E. Davis Vice-President" and apparently delivered on November 4. It allegedly remained unopened because Vice President Davis, the son of President Davis, was absent and it came to the attention of President Davis on November 7 when his son returned. On November 10 President Davis wrote the Union rejecting its claim of representation and suggesting an NLRB election. Respondent argues that the first legal demand for recogni- tion on behalf of the Union took place on November 7. 1 do not agree. President, Davis knew that there was a union organizational drive at his Paducah plant when he was called at Dawson Springs and asked to come in on the morning of November 3. That same morning he was confronted by a number of his drivers -he himself esti- mated that number to have been as high as 12 -who told him they had signed up for the Union. His only reply was a statement to the effect that he couldn't afford union wages at which point he was told to speak to union representatives. Considered in all of its aspects, this con- frontation by such a large number of his drivers must be deemed to constitute, in effect, a demand for recognition. The letter which he saw on November 7 was only confir- mation of what he had already been told. In any event, as noted earlier, the result is the same even if the demand for recognition be deemed to have been made on November 7 or November 14. It is significant that the Respondent's 350-212 0-70-37 564 L DECISIONS OF NATIONAL LABOR RELATIONS BOARD' defense of a good-faith doubt of the Union's majority was first raised in its letter of November 10, long after the drivers who presented their demand to him on the morn- ing of November 3 had been discharged by him and after he had told his drivers that he would close up if the Union came in. It was also after he had told these employees that his Dawson Springs employees were fired partly because of their union activities . It was also after the ef- forts were made to have some of the drivers execute let- ters of resignation from the Union and other attempts were made to engender disaffection with the Union on the part of the drivers. Where a company has engaged in substantial unfair labor practices calculated to dissipate union support, the Board, with the courts' approval, has concluded that employer insistence on an election was not motivated by a good-faith doubt of the union's majority, but rather by a rejection of the collective- bargaining principle or by a desire to gain time within which to undermine the union. [Aaron Brothers Company of California, 158 NLRB 1077.] Thus, whether Respondent be deemed to have refused to bargain with the Union on November 3 when, in response to the drivers' request that Davis speak to their union representatives, the drivers were summarily discharged, or on November 10 when Davis formally refused to recognize the Union, it is clear that such refusal was not based upon any doubt, good -faith or otherwise, of the Union's majority but upon Respond-' ent's desire to avoid the results of its drivers' successful organizational campaign , a desire which it implemented by flagrant 8(a)(1) and (3) behavior, both before and after November 10. Indeed, such behavior after the Union had secured a majority of the employees in the unit would jus- tify the issuance of an order requiring Respondent to bar- gain with the Union even in the absence of an 8(a)(5) violation. Wausau Steel Corporation, 160 NLRB 635, enfd. 377 F. 2d 369 (C.A. 7); N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6); Editorial "El Imparcial" Inc. v. N.L.R.B., 278 F.2d 184 (C.A. 1); Franks Bros. Company v.'N.L.R.B., 321 U.S. 702. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I shall recommend an order directing it to cease and desist therefrom, and, in view of the flagrant and widespread nature of these practices , that it cease and desist from in any manner infringing on the rights of employees guaranteed by Section 7 of the Act. Inasmuch as it appears that the,nine dischargees have been offered full and unconditional reinstatement and that all but two returned to their former jobs within a few days after November 3, I shall recommend that the Respondent make them whole for any loss of earnings suffered by reason of the discrimination against each of them by pay- ment of a sum of money equal to that which each driver normally would have earned as wages from the date of discharge to the date of Respondent 's offer of reinstate- ment or the date of each employee's return to duty, whichever is earlier,' less any net earnings during said period (Crossett Lumber Company, 8 NLRB 440) and in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together , with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heat- ing Co., 138 NLRB 716. In the case of driver Griffith, I shall also recommend that Respondent offer him rein- statement to his former or substantially equivalent posi- tion without prejudice to his seniority or other rights. Finally, I shall recommend that the Company be directed to bargain with the Union upon request. RECOMMENDED ORDER On the basis of the foregoing findings of fact, I recom- mend that Respondent, Davis Transport, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Offering or granting benefits to discourage union activities; provided, however, that nothing in this Recom- mended Order shalt be construed as requiring Respond- ent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established. (b) Unlawfully interrogating employees concerning their union activities and attitudes. (c) Threatening to go out of business or to discharge employees if the plant were unionized or if the employees joined the Union. (d) Soliciting the withdrawal of its employees from a union organization of their choice. (e) Refusing to bargain with Local Union No. 236, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the fol- lowing appropriate unit: All truckdrivers employed by the Respondent at its Paducah, Kentucky, terminal but excluding mechanics, safety men, office clerical employees , guards, and super- visors as defined in the Act. (f) Discouraging membership and activity on behalf of Local 236, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, or any other labor organization , by discharging or refusing to reinstate employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist the Union or any other 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 other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Bobby Griffith immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Notify the above-named employee 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. (c) Make the following employees or former em- ployees whole for any loss of earnings suffered by reason of the discrimination against each of them in the manner DAVIS TRANSPORT 565 set forth in the section of this Decision entitled "The Remedy": Bobby Griffith Bobby Moffitt J. D. Lamb Donnie L. Weaver Charles Williamson Jewell T. Harper Robert F. McClain Lelon Vaughan Ben T. Haley (d) Upon request bargain collectively with the above- named union as the exclusive representative of all em- ployees in the above-described appropriate unit and em- body in a signed agreement any understanding reached. (e) 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 relevant and necessary for a determination of compliance with paragraphs (a) and (c) above. (f) Post at its terminal in Paducah, Kentucky, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.6 Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our truckdrivers at our Paducah, Kentucky, terminal, but WILL, upon request, bargain collectively with that Union and embody in a signed agreement any un- derstanding reached. WE WILL NOT discourage membership in and ac- tivity on behalf of Local No. 236, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or refusing to reinstate employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form, join, or assist the Union or any other labor organization, to bargain collectively through representatives of your own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion or to refrain from any or all such activities. WE WILL offer Bobby Griffith immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL make the following former employees whole for any loss of earnings suffered by reason of the discrimination against them: Bobby Griffith J. D. Lamb Charles Williamson Robert F. McClain S 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 " 6 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 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: WE WILL NOT offer or grant benefits in order to discourage union activities. WE WILL NOT interrogate you unlawfully concern- ing your union activities and attitudes. WE WILL NOT threaten to go out of business or to discharge you if the plant is unionized or if you join the Union. WE WILL NOT solicit you to withdraw from a union organization of your choice. WE WILL NOT refuse to bargain with Local No. 236, affiliated with International Brotherhood of Bobby Moffitt Donnie L. Weaver Jewell T. Harper Lelon Vaughan Ben T. Haley All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Rela- tions Act. Dated By DAVIS TRANSPORT, INC. (Employer) (Representative ) (Title) Note: Notify the above-named employee 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, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.