Al Pfister Truck Service

AL PFISTER TRUCK SERVICE Al Pfister d/b/a Al P ister Truck Service and John Parke and Dennis Knebel and Teamsters, Chauf- feurs, and Helpers Local Union No. 50, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Party in Interest Al Pfister, d/b/a Al Pfister Truck Service, and Bern- ice Pfister, successor employer to and personal rep- resentative of Al Pfister, deceased, d/b/a Al Pfister Truck Service and Chauffeurs, Teamsters, Ware- housemen and Helpers, Local Union No. 525, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Cases 14-CA 8709, 14 CA 8926. and 14 CA 10029 May 19. 1978 DECISION AND ORDER BY CIIaRMAN F ANNIN(; ANI) Ml MBIRS PEtNI .1() ANI) TRIU St)DAI F On November 18. 1977. Administrative L aw\ Judge Hutton S. Brandon issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached I)ecision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative l.aw Judge. to modify his recommended remedv,.2 and to adopt Iis recommended Order except that the attached notice is substituted for that of the Administrative Il.aw Judge. i Respondent ha es excpted to certain credihilit filiing ni ide h; the Administrative I.aw Judge It Is the BoardN eslablished pohcc not toli oer- rule an Administrative Law Judge's resolutions with respect tol credihillit 2 unles, the clear prepondlranie of all of the reloeant ei'dence on.illnces us that the resolutions ire inccoreci Sinandald l)rl ItW/! Pid/ul 1,i, . 91 NILRB 544 11950(11 cnfd 1 -88 '2d 6c 2 (('.A 3. 1951). We have carefull; elalmined the record anld find no hamsis for rc\erMne his findlngs In the third full paragraltph III B.4.a of his )cileon.. the Adiminisilal se Law Judge inaderteintl referred to (CaroiNn \i, s. bookkeeper as, the daughter of Ihe E mploler We correct ihis sttenclerit toi reflecl thal Nitnc' Pfister. mechanic, is the dauLghter of Ihe Fniploer Alsoi. the unit decitrip tion contained in that sanie ection shiould read: "All drisers. helpers. .iid truck ma inteni ince nien 2 lhe dinnllstritc li.su .Rl udge Iladlerlentlk specifiled iilteres 1to he paid lat 7 percent: hloreer. inerest il hbe cailculated aciordinn ti ihe "adjusted prime rate" used hb the United States Internal Revenue Service for interesl on lstx paiTllent fb,iula Sll/ (, r/ir n, 2' '31 NlRB thl 1977) See. generallb. bItl P/liuminc. i, lltlhltr, ( , 138 Nl RB 711 tl9(12 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Al Pfister, d/b'a Al Pfister Truck Service, and Bernice Pfister, successor employer to and personal representative of Al Pfister deceased, dc b /a Al Pfister Truck Service. St. Jacobs. Illinois, his agents, successors, and assigns, shall take the action set forth in said recommended Order, ex- cept that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX No Il( I. To EMIPILOYEEFS POSI .) B\ ORDER OF -ILH NAIIONA\I L XBOR REL.AFlONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and had the opportunity to present testimony, the National labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To organize themselves To join. help, or form unions To bargain as a group through a representa- tive thev choose To act together for collective-bargaining or other mutual aid or protection To refuse to do any or all of these things. V'i hll -N()I do anything which interferes with these rights. \W' \ VII Not question you about your union activities. Wa ll l Nol create the impression that we are keeping your union activities under surveillance. Wi uii Il NoI threaten to discharge you or sus- pend Nou for engaging in union activity on be- half of T'eamsters. Chauffeurs, and Helpers Lo- cal Union No. 525. affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Wi \I1I NO( threaten you that if you seek to \indicate your rights before the National Labor Relations Board it would cause hard feelings. Wi WII. Noir threaten to close the business if 'ou engage in union activities or select a union as your bargaining representative. Wi W\lil N xo( suggest or encourage you to 236 NLRB No. 30 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form your own union or join an independent union. WE Wll.t NOT suggest to you, or assist you in, the circulation or filing of a union shop deau- thorization petition. WE WUi.L NOI assist or support Teamsters, Chauffeurs, and Helpers Local Union No. 50, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation. WE WiiL. NOT give effect to or operate under any agreement with Teamsters, Chauffeurs, and Helpers, Local Union No. 50, affiliated with the International Brotherhood of Teamsters, (hauf- feurs, Warehousemen and Helpers of America, unless or until the National Labor Relations Board shall have certified that union as your collective-bargaining representative. WE WII . NOT recognize Teamsters. Chauf- feurs, and Helpers, Local Union No. 50, affiliat- ed with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as your bargaining representative unless or until such union as been certified by the National Labor Relations Board as your representative. WE Wll. NOI discharge or discriminate in any way against our employees because they have joined or supported Teamsters, Chauffeurs. and Helpers Local Union No. 525, affiliated with the International Brotherhood of Teamsters of America, or any other union. WtE Wli. NOIr discharge or otherwise discrini- nate against our employees because of their ef- forts to enforce their rights under the National Labor Relations Act. W: Wl.lt NOI in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE Wli.I withdraw and withhold recognition from Teamsters, Chauffeurs, and Helpers Local Union No. 50, affiliated with International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America, as your bar- gaining representative. WE Wrii reinstate Dennis Knebel to his for- mer job, or, if that job no longer exists, to a substantially equivalent job, with the same rights, privileges, and benefits he would have had if we had not discharged him and wil xi1l make him whole for all loss of earnings as a re- sult of our discrimination against him, plus in- terest. All of our employees are free to join or support or not join or support Teamsters, Chauffeurs, and Helpers Local Union No. 525, affiliated with the In- ternational Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, or any other union. Al. PFISIIR d/b/a TRUI(-K SE RVI('I ANt BERNI(CE PFIsi IR. EXi(lUIRIX O1: IElt WILl. OF Al. P:ISrI'IR DECISION STAIEMENI OF ITH CASE HtI1-lO S BRANIX)N. Administrative Law Judge: This case came to hearing at St. Louis, Missouri, on June 20-22. 1977. The charge in Case 16 CA 8709 was filed by John Parke. on August 6, 1975, l while the charge in Case 14- CA 8926 was filed by Dennis Knebel hereinafter referred to as Knebel, on November 25, and amended January 6, 1976. An order consolidating cases, complaint, and notice of hearing in Cases 14-CA-8709 and 14 CA-8926 issued on January 13, 1976. The charge in Case 14-CA 10029 was filed by the Chauffeurs, Teamsters. Warehousemen and Helpers. Local Union No. 525, herein called Local 525, on February 16, 1977. and amended on March 10, 1977. An order consolidating Case 14-CA 10029 with Cases 14- CA 8709 and 14-CA 8926 issued on June 9, 1977. The primary issues in the consolidated cases are whether Al Pfister d/b/a Al Pfister Truck Service, hereinafter referred to jointly with Bernice Pfister, executrix of the will of Al Pfister. as Respondent, (a) unlawfully threatened, coerced. and restrained its employees in violation of Section 8(a)( 1) of the Act through various acts and conduct during the period from July 23 to August 8: (b) breached an informal settlement agreement by various acts and conduct occur- ring after September 26 in violation of Section 8(a)(1) of the Act and by discharging Knebel in violation of Section 8(a)(3) and (1) of the Act: (c) unlawfully assisted Team- sters, Chauffers, and Helpers Local Union No. 50. herein called Local 50, by recognizing and executing a collective- bargaining agreement with Local 50 at a time when it did not represent a majority of Respondent's employees in an appropriate unit and by making an unauthorized deduc- tion of dues in violation of Section 8(a)(2) and (I) of the Act; and (d) unlawfully repudiated a collective-bargaining agreement with Local 525 and thereafter refused to bargain collectively with Local 525 in violation of Section 8(a)(5) and (I) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: \II da tes hereIn refeT ii ,'J75 u9ilie I el (hCI I ICI ficd 218 Al. PFIS'TFR TRi ('K SF'RVI('F F[INl)IN(iS o()f FAt I I JR RISI)I( I (}N The complaint alleged and the answer admitted that Al Pfister was, and had been at all times until his death on September 17. 1976, an individual proprietor doing busi- ness under the tradename and stle of Al Pfister I'ruck Service. It was stipulated at the hearing that the Respon- dent at all times material herein maintained its principal office and place of business at Route I. St. Jacobs, Illinois. and has been at all times material herein engaged in fur- nishing interstate transportation of freight. coal, and other commodities. It was further stipulated that during the sear ending December 31. 1976, which period was representa- tive of Respondent's operations at all times material herein. Respondent derived gross annual revenue in excess of $50,000 for the furnishing of interstate transportation of freight and other commodities in interstate commerce. The answer herein stated that Bernice Pfister. wife of Al Pfister, has operated the business since September 17. 1976h. individually and as personal representative of Al Pfister deceased. The record is, nevertheless, clear, and I find. that Bernice Pfister hereinafter referred to as B. Pfister, at all times material herein continued to operate Respondent as executrix of the will of Al Pfister since his death on Sep- tember 17, 1976. under the same tradename and style. In such operations, I find that B. Pfister was ia successor to Al Pfister having assumed the operation upon his death with full knowledge of the pendency of Cases 14 CA 8709 and 14 C('A 8926, and. indeed, participation in those cases and therefore is bound to anv remedy found necessary and ap- propriate. See Perrna I'int,l Corporation et al., 164 NlIRB 968 (1967), enfd. suh nom. United States Pipe and Foundlr Compan},, (Pernma Vinyl Corp., Dade Plastics Co.) v. N.L.R.B., 398 F.2d 544 (C.A. 5. 1968). Based upon the foregoing, I find that Respondent has been, and is, an employer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. II rHE L.ABOR OR(GiAIZlliONS From the record as a whole, I find that both Local 50 and Local 525 are organizations in which employees partic- ipate and which exist for the purpose. in whole or in part, for dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or con- dition of work. The record contains collective-bargaining agreements signed by each of the ULnions with Respondent. I therefore find that both Local 50 and local 525 unions are labor organizations within the meaning of Section 2(5) of the Act. III ItHE LNF.IR IABOR PR, CII(I:S A. Background lacts An informal settlement agreement was entered into by Respondent in Case 14-CA 8709 on September 25, and was approved by the Acting Regional Director for Region 14, on September 26. Subsequently, the charge in Case 14 ('A 8926 was filed by Knebel and, following investigation of the charge. the Regional Director for Region 14 set aside. in part. the aforementioned settlement agreement. A consolidated complaint issued in both cases on January 13, 1976. and a hearing was held before Administrative Law ludge Davis in St. Louis. Missouri, on February 9. 10, and I 1I. 1970. I'hereafter. Administrative Law Judge Davis became un- available to render a decision in the case and the parties consented to the transfer of the cases to the Board in Washington, I).C'., for issuance of a proposed Decision and Order based upon the record made before Administrative l,aw Judge Davis. 'The cases were transferred to the Board for this purpose by the Chief Administrative Law Judge on September 17. 1976. The Board after considering the rec- ord concluded that a hearing de novo would be most appro- priate under the circumstances and issued an order dated Flebrualry 18, 1977. remanding the proceeding to the Re- gional 1)irector for Region 14, to arrange a hearing de novo before a duly designated Administrative Law Judge. Notwithstanding a February 25. 1977, motion for recon- sideration of the Board's order by Respondent based upon its claimni of prejudice by virtue of the death of an indis- pensable witness, Al Pfister. the Board by order denying motion dated June 3. 1977. adhered to its original order requiring a hearing de notwo.2 At the hearing herein. Re- spondent objected to introduction of any evidence regard- ing statements of the deceased Al Pfister on the basis of a "deadman statute." 111. Rev. Stat.. Ch. 51, Sec. 2. The ob- jection was overruled on the basis of the Board's holding in Northcrn ,Mletal (ornparnv. 175 NLRB 896 (1969) and cases decided therein. I reaffirm that ruling. The Illinois statute was designed to vindicate private rights and has no appli- cation to regulatory statutes such as the National Labor Relations Act which was designated to protect public rath- el than private rights. However, I am mindful of the Board's holding in Sam ? 'allick et al., d b a Wallick and Schwalm ('omlpal.', 95 NLRB 1262 (1951), enfd. 198 F.2d 477 (C.A. 3. 1952) that the consideration of the testimony of statements attributed to deceased persons must be "sub- ject to the closest scrutiny before deciding what weight to give it." In addition. at Respondent's request, I have taken administrative notice of the testimony of Al Pfister in the hearing before Administrative Law Judge Davis in Febru- ars 1976. Thus. ms resolution of the factual matters insofar as thev pertain to Al Pfister's conduct and statements is based upon careful consideration of the testimony against him as well as upon Pfister's own testimony in the previous hearing. B. The Evidence I. The agency status of Pfister The complaint alleged that Bernice Pfister was at all Resti.po.dent coniended at the hearing herein that the Board breached an .igreemerit tlo co,nlder ( Cases 14 ( A 8709 and 14 ( A 8926 on the basis of the reclrd hefere .Aldmilqrlrlat.e I.a. JLudgc 1).ss An Adminilrratlse Law Judge his no authories s to r[mlea the Board' atetion rele.anl 1o its decision to Ir these cases de novo Onls the courts have such review authority 219 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD times material herein a supervisor and agent of Respon- dent. Respondent's answer denied the allegation. The record reflects that at all times material herein B. Pfister assisted her husband in the operation of the husi- ness from their home where an office was maintained and from which the employees were dispatched. While Al ffis- ter averaged being away from the office 6 hours of the normal workday, B. Pfister remained on the premises an- swering phone calls and directing truckdrivers to various locations, changing driving assignments wherever neces- sary. B. Pfister. however, testified that her functions in this regard were without any discretion on her part, and she served merely to pass on instructions to the employe es from her husband which he usually issued to her prior to the time that he left the premises or at various times of the day when he telephoned her. In this regard, B. Pfister testi- fied that her husband had a radio "beeper" or callsystem through which she could contact him during the course of the day to ask for instructions which she could relay to the drivers. B. Pfister testified she made no decisions on her own and that she simply carried out the instructions of her husband. It is nevertheless, clear that employees custom- arily followed her instructions without questioning. There was no evidence that employees were ever advised on anv limits of her authority. While B. Pfister claimed she had no supervisory authori- ty, the record is undisputed that she supervised and direct- ed bookkeeper Carolyn Voss in her bookkeeping functions. In addition, B. Pfister admitted that it was one of her func- tions to watch drivers in the early morning prior to the time her husband awoke to see that drivers were checking their trucks properly. Further, she admitted she was expected to report deficiencies to her husband and the record reveals that she did do so. B. Pfister also participated in determina- tions on employee disciplinary actions as will be discussed infra. Finally, the record reveals that B. Pfister had authority to sign her husband's name to checks issued in connection with operation of the business including paychecks. Al Pfister's name was also signed to other forms by B. Pfister including forms forwarded to the Unions with deductions for welfare and pension funds. I find, based on the foregoing and considering the record as a whole, that Bernice Pfister was in fact a supervisor within the meaning of Section 2(11) of the Act. I further find that whether or not B. Pfister was a supervisor, she was nevertheless an agent of Respondent acting in Respon- dent's behalf. Al Pfister regularly used B. Pfister as a con- duit to relay orders and information to the truckdrivers and never at any time, so far as the record reveals. dis- closed to the employees any limitations on her authority' regarding assignments of work. Under these circumstances, Respondent held B. Pfister out as an agent of Respondent. Therefore her conduct at all times material may be proper- ly imputed to Respondent. See Han-Dee Pak. Inc., 232 NLRB 454 (1977): Helena Laboratories Corporation, 225 NLRB 257 (1976) enfd. in pertinent part 557 F.2d 1183 (C.A. 4, 1977); (Clevenger Logging, Inc., 220 NLRB 768 (1975). 2. The breach of the settlement agreement a. Tilhe Jailure to properlyi post the notice to emplovlees I he informal settlement agreement approved by the Re- gional Director on September 26. in Case 14-CA 8709 purported to remedy alleged violations of Section 8(a)(1). (2), and (3) of the Act. The alleged 8(a)( I) violations con- sisted of statements of Al Pfister to certain of his employ- ees which will be treated subsequently in this Decision while the 8(a)(2) allegations were based upon Pfister's exe- cution of a collective-bargaining agreement with Local 50 when that union did not represent a majority of his em- plohees in an appropriate unit. The 8(a)(3) allegations were based upon the discharge of five employees including Den- nis Knebel. Only Knebel was actually reinstated under the settlement agreement although the other alleged discrimi- natees received backpay. That portion of the settlement- agreement relative to the alleged 8(a)(3) violations was not set aside. Knebel returned to work and was reinstated on September 19. The General Counsel argues herein that Respondent vio- lated the settlement-agreement after September 25, in a number of respects. One such respect was Respondent's failure to insure proper posting of the notice to employees provided for under the settlement-agreement. The facts with respect to the posting are not largely in dispute insofar as the adequacy' of the posting is con- cerned. Bookkeeper Carolyn Voss who was presented as a witness by the General Counsel testified that one of the notices was posted on the outside of a closet door in an interior room of the Pfister home which was utilized as an office by Respondent. Employees of Respondent entered the room infrequently and only when they had some ques- tions regarding their paychecks or a load ticket. The door which opened against the wall was left open most of the time according to Voss, in order to have ready access to supplies kept in the closet. Accordingly, the side on which the notice was posted was against the wall and not observ- able most of the time in the room. Another notice was to be posted in the tire shop and behind a "soda" or soft drink machine. Carolyn Voss testi- fied that either Al Pfister or B. Pfister directed either her- self or Nancy Pfister, daughter of Al and B. Pfister who worked as a mechanic for Respondent to put tape on the notice, dirty the tape, and drop it behind the soft drink machine so as to make it appear that it had accidentally fallen behind the machine. When a Board agent from the Board's Regional Office made a routine check of the notice posted Voss as welas sNanc Pfister untruthfully repre- sented to the Board agent that the notice must have acci- dentally fallen behind the soda machine. B. Pfister in her testimony given in instant proceeding denied any instructions to Voss not to properly post the notice. Al Pfister apparently did not testify before Admin- istrative Law Judge Davis regarding the subject. It is Re- spondent's position that Voss was the one who improperly failed to post the notice and that her action in this regard was her own and in keeping with her admitted animosity toward Teamsters Local 525 and alleged discriminatee l)ennis Knebel at the time. 220 AL PFISFER TRUCK SERVICE Nancy Pfister testified that Voss was told bh B. Pfister to post the notice. Nancy added in her testimony. that she knew Voss had not properly posted the notice but she nev- er advised her parents because she knew "they really didn't want it up." I find Carolyn Voss to be a credible and generally in- pressive witness. Her testimony, although vague regardingi her instructions on posting, was consisent with Nanc, Pfister's admission that the Pfisters "really didn't want the notice up" and explains why' Nancy Pfister saws no need to report Voss's improper posting to Al or B. Pfister. It is also consistent with the posting on the office closet door. a loca- tion which can only demonstrate that Respondent was making a not too subtle effort to keep the notice hidden. Finally, Respondent at no time took any steps to ensure during the posting period that the notices were properil maintained. I find it patently incredible that Respondent would not have known that the notices were not properly posted in view of the smallness of Respondent's operations with only about 13 unit employees. The failure to properls post could not have been accomplished without Respon- dent's knowledge or acquiescence. Based on Voss' credit- ed testimony I conclude that the failure to properl\ post was with the express approval of Respondent. b. The alllegd poos settlement 8(a)(2) violaiionl As set forth ahove, the settlement-agreement provided a remedy for the alleged violations of Section 8(a)(2) through Respondent's execution of a contract with Local 50 when that union did not represent a majority of Respondent's employees. That remedy required that Respondent not as- sist or support I.ocal 50 nor operate under or give effect to Respondent's collective-bargaining agreement with l ocal 50 dated August 1. Under the terms of the settlement- agreement Respondent was also required to withhold rec- ognition from Local 50. It was stipulated between counsel on the record that Respondent deducted union dues from four different em- ployees on at least four occasions after August 1, and for- warded those dues to Local 50.' Accordingly, it is clear from then that following approval of the settlement-agree- ment and during the posting period Respondent did deduct dues and forwarded them to Local 50 on several occasions. There is no evidence submitted that Respondent had se- cured from the employees for whom the dues were deduct- ed written authorizations for such deductions. There can be no question but that the deductions and submission of union dues for employees in a collective-bargaining unit to a union %which does not represent those employees consti- (hecks coltminmt 2 duc, cre for, arded to I ocal 5O f., it fhll2,1 lll cmploi ce, in the .tllltl llll .i1 the dI wtis el lippol e tiilC cii l.llc Risks Bcaumoinlt \uIst 22 $ 36 Ricks Bc.iumrnl IDcnemnher 8 54 I). MNiel (Gene Roser (;ene Roxer Art ei iuniint Ocl.hber 7 $70 Niemiber I 1 542 tute a clear and flagrant violation of Section 8(a)(2) and (1) of the Act. Further, the violation of the Act in this regard is compounded by the deduction without written authorization. See Mest ers Bros. of Missouri, Inc. 151 NIlRB 889, 890 (1965). See also Howard Creations, Inc., 212 NLRB 179 (1974). Accordingly. Respondent's action in this regard constituted a clear and unambiguous breach of the settlement agreement. c. The pfos svcttlcnlcnt t 8(a)J(l) conduct According to Bookkeeper CarolNn Voss during the pe- riod after DIennis Knebel was reinstated under the terms of the settlement-agreement both Al and B. Pfister made statements to Voss and other employees who were not identified on the record to the effect that Respondent wras going to get "Denny [Dennis] Knebel out of there" because he was just in there to stir up union trouble. Voss testified that such statements were made on a frequency of about two or three times a das although she admitted that there may have been some days which passed without such state- ments having been made by the Pfisters. On cross-exami- nation. Voss admitted that in her affidavit submitted to the regional office during investigation of the case, she had onls indicated that she had heard the statement three times or "three times or so" each from Al Pfister and B. Pfister. Al Pfister's testimon' given in the previous proceeding before Administrative L aw Judge Davis made no specific denial of the remarks attributed to him by Voss. B. Pfister did, on the other hand. deny making such statements to \oss. Carolyn Voss' testimony, as related above, is consistent vwith her testimon; before Administrative Law Judge Davis aind although it is vague with respect to the dates of the statements, I do not find her credibility to be materially affected. Her credibility is enhanced by her expressed op- position to the Union during the period when the state- ments were made to her bh the Pfisters regarding Knebel. Voss was strongly opposed to both Knebel and the Union, evten to the extent that she suggested to the Pfisters that some dirtl, tricks be played on Knebel such as deflating the air in his automobile tires. As a confidante of the Pfisters and in particular B. Pfister. it would not be unusual for her to fail to recall the specific dates or events when the state- ments were made to her bh the Pfisters regarding Knebel. Voss shared their animosity toward Knebel and would have no special reasons for recording the dates in her mem- ory.4 Voss' testimony is also in keeping with her participa- tion in the preparation and typing of certain reprimand letters issued to Knebel which will be discussed infra herein. On the other hand the denials of B. Pfister were unpersuasive. tier demeanor revealed a nervousness not altogether explainable as resulting from the ordeal of a sec- ond hearing. Accordingl,. I credit Voss' testimony swhere it contradicts that of B. Pfister and find that the Pfisters did make statements to Voss as attributed to them by her regarding getting rid of Knebel. While Voss was not a unit emrployee she was nexertheless an employee and although a ~,i. t.iis nr ii cinphi eid 1h, Riep.ndent at the iintle of the Fehrua.lr 1976 hearing hefore Adminlstratile I au Iudge Dai).s or the hearing hercein 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Pfisters' statements to her may not have impacted on her because of her alignment with Respondent's position at the time, they nevertheless had a tendency to interfere with, restrain, or coerce employees. The)' reasonably con- veyed to the listener that employees' support of Local 525 would result in discharge by Respondent. As such the statements violated Section 8(a)( ) of the Act. General Counsel witness Dale Voss 5 similarly testified that Al Pfister told him subsequent to Dennis Knebel's return to work in late September and on several occasions thereafter that Pfister wanted to get rid of Knebel. that Knebel was a troublemaker, and that everything that hap- pened around the yard and on the job Knebel reported to Tim Burns, business representative of Local 525. Accord- ing to Dale Voss, Al Pfister made such statements to him in the kitchen of the Pfister home where drivers occasionally gathered to turn in their tickets following their day's work. In his testimony in the earlier proceeding. Al Pfister de- nied that he had ever referred to Knebel as a troublemaker in conversation with Dale Voss or that he ever commented about Knebel to Voss. Further, he denied that he ever told Dale Voss that Respondent was going to get rid of Knebel. I have carefully considered Al Pfister's testimony regarding his denials of the statements attributed to him by Dale Voss as well as his testimony as a whole in the prior pro- ceeding. It is quite clear from that testimony that Al Pfister was in fact attempting to document work deficiencies of Knebel as a foundation for discharge. Thus, having in the process of laying the predicate for a discharge of Knebel. it would not be implausible for Al Pfister to make a state- ment attributed to him by Dale Voss to the effect that he was seeking a way to rid himself of Knebel. Dale Voss, on the other hand. was unequivocal in his testimony and was generally impressive. He was not em- ployed by Respondent at the time of his testimony in the previous hearing or in the instant hearing. Dale Voss' tes- timony is consistent with the testimony of Carolyn Voss whom I have previously credited reflecting similar state- ments by Al Pfister and B. Pfister to her. Accordingly. I credit the testimony of Dale Voss over Al Pfister and find that the statements attributed to Al Pfister by Dale Voss were in fact n.ade and that such statements constituted violations of Section 8(a)(1) of the Act as a threat to dis- charge employees for engaging in union activity. Another driver of Respondent presented by the General Counsel, Eugene Royer, who testified without contradic- tion from Respondent that on November 13, Royer. who was a member of Local 50 and two other drivers of Re- spondent, who are members of Local 50, Doug Metz and Rick Beaumont. met with Al Pfister in Respondent's lire shop. This meeting followed by a visit by Royer. Beau- mont, and Metz to the Local 50 hall in an attempt to ascer tain what benefits were being paid for them by Respon- dent. Their inquiry of Local 50 revealed that they had no eligibility for benefits inasmuch as nothing was being paid into the Union by Respondent except their union dues. Pfister in his meeting with the three employees told them to quit going to the Union and advised them not to stir up ' Dale Voss wAs the husband of C arol,n Vo\ss and was crnpliosd truckdri er hs Responident in 1975 any "shit" because he and Barney Trefts, Local business representative at the time, were good friends. Al Pfister, added, according to Royer, that when Trefts was on vaca- tion at that time, returned, he would attempt to settle on an agreement with Trefts so that the employees would get some benefits of some sort. Pfister admonished the em- ployees if they started stirring up anything with the Union that they would be caught in between and would probably get in trouble. Pfister stated, however, that the contract he had signed with Local 50 had been denied or cut out by the National Labor Relations Board. A review of Al Pfister's testimony before Administrative L aw Judge Davis does not reflect an, contradiction of Rover's testimony. Royer's testimony is therefore credited and based thereon I find that by admonishing the employ- ees not to go the Union and stir things up and to come to him instead Respondent violated Section 8(a)(1) of the Act. Pfister's comments amounted to rank interference with em- ployees' access to any union. See B. J. Proi'enzale Compa- nv, Inc. dh /a B.J. P. Painting and Decorating Co.. 206 NLRB 800 (1973), enforcement denied 512 F.2d 599 (C.A. 6, 1975); Colon, Furniture Co., 168 NLRB 725 (1967). On November 14, employee Knebel met with Al Pfister and B. Pfister in the kitchen of their home. The kitchen was utilized by the Pfisters as a place for meeting drivers and assigning work. The meeting with Knebel followed Knebel's receipt of a warning letter dated, November 14, regarding Knebel's work deficiencies. Although another driver was present in the kitchen at the time the meeting began, the driver who was otherwise unidentified on the record was directed to leave. According to Knebel, Al Pfis- ter told Knebel that he wanted Knebel to quit. Knebel responded by asking him why and noting that he was not causing Pfister any problems. Pfister replied that Knebel wats causing him problems, that Knebel had been harassing all of the other drivers trying to talk union to them and they did not want anything to do with Knebel. that they did not want to go union and they wanted to stay awas from the union. Knebel denied to Pfister that he had been talking union to any of the drivers. Further, according to Knebel's testimony, Al Pfister of- fered to pay off an old fine which Knebel had earlier re- ceived, offered to pay Knebel double-time for a holiday that Knebel had worked and further offered to pay Knebel "anything else" Knebel wanted to call it even so that Kne- bel "could get the hell out of there" and not come back. Still according to Knebel, Pfister added that Knebel did not realize what "this" had cost him mentioning thousands of dollars Pfister had spent because of the reinstatement of Knebel and backpay for other drivers involved in the prior settlement. In the same meeting, B. Pfister who wsas present through- out the meeting accused Knebel of running back and tell- ing Tlim Burns of Local 525 everything that was said and what "goes on" around there bh calling Burns every night. B. Pfister sarcastically told Knebel to be sure to go home that night and call Burns and tell him what all was said and likewise tell Marshall McDuffv, secretalrs-treasurer of Lo- cal 525. the same thing. ('ontinuing on the same meeting of November 14. Kne- becl testified that Al Pfistei told him that he was going to 222 AL PFISTER TRUCK SERVICE find a way to get rid of Knebel. Pfister remarked that Kne- bel should see the other drivers' check if Knebel thought that he was making good money under the Union contract and added that the other drivers were doubling Knebel's pay. Knebel responded by stating that Pfister ought to be glad that he was working as cheap as he was. Pfister replied that that was not the point, that Knebel was causing union problems. Neither Al Pfister nor B. Pfister denied the meeting with Knebel on November 14. Al Pfister admitted he had sug- gested to Knebel that he go some place else and work. The statement attributed to B. Pfister regarding Knebel's re- porting to Tim Burns was not specifically denied in either the testimony of Al Pfister in the earlier hearing or Mrs. Pfister in the hearing before me. In view of these partial admissions and failure to deny specific comments. I find Knebel's testimony more reliable and credit the testimony of Knebel regarding the statements made to him in the conversation with the Pfisters on November 14. I find therefore that the statements of Al Pfister to Knebel in the November 14 meeting constituted a threat of discharge to Knebel for his union activities and was thus violative of Section 8(a)(1) of the Act. I further, find, that the statement attributed to B. Pfister regarding Knebel's reporting to the Union conveyed to Knebel the impression that Respon- dent was keeping watch over Knebel's activities on behalf of Local 525 since it suggested to Knebel that Respondent was aware of reports Knebel made to Local 525. As a con- sequence, the impression conveyed constituted a violation of Section 8(a)(l) of the Act. On November 25, a union shop deauthorization petition docketed as Case 14-UD-89 was filed with the Board's St. Louis Regional Office by a petitioner named Robert C. Daniels, an employee of Respondent. The petition was supported by eight signatures of Respondent's employees signed during the period of November 10 through Novem- ber 24. The petition on which the signatures appeared was captioned "We wish to withdraw the requirement that we belong to Teamsters Local 525 in order to work for Al Pfister Trucking Company." The petition was ultimately discussed by the Board's Regional Office. The General Counsel argues that the petition was initiat- ed and supported by Respondent.6 Evidence of such sup- port is found in the testimony of Dale Voss who related that he first saw the petition in the kitchen in the Pfister home in the presence of two other employees, Ron Bellam, DeWayne Pfister, Al Pfister's brother and an employee of Respondent. No names had been signed to the petition at the time Voss first saw it. According to Voss, Al Pfister explained to the employees that they needed a third of the drivers' signatures on the petition to make it go through. Pfister further explained that the petition was to quit pay- ing union dues and get withdrawal cards and the employ- ees would be going nonunion then. Al Pfister according to Voss, added that the employees would have to circulate the petition among themselves and that he was not supposed to know about it or have anything to do with it. Continuing 6The collective-bargaining agreement which Respondent executed with Local 525 on or about August 1. 1975. discussed hereinafter in this L)ecisiion contained a union-securit provision. Pfister advised Voss and the other employees present if they all went nonunion Dennis Knebel would be the only member of the Union there and he would not have any- body to be shop steward over, that nobody would want to work with him since he would be the only union member. and Knebel would get fed up and quit.7 The three employ- ees thereupon signed the petition. Al Pfister did not specifically deny relating to the em- ployees information regarding the signing of the union shop-deauthorization petition. In his testimony, however. he stated that he supplied the employees with this informa- tion in response to some employee question as to why they were paying for the Union when it was not doing them any good. Pfister testified that he told the employees that on some jobs they had to belong to the Union but as far as he was concerned they did not have to belong to the Union or anything anymore because Respondent was strictly haul- ing coal and that did not require that the employees be with the Union.8 Al Pfister said he cautioned the employ- ees that they would have to take care of the petition them- selves from there on out. Dale Voss next testified that a few days after he initially signed the petition B. Pfister gave it to him and asked him if he would see another employee. Bob Wall, and see if Wall would sign it. Voss told B. Pfister to tell Wall to stop by the Voss home if he did not get off from work too late that night and he would show the petition to Wall. Wall came by the Voss house that evening and Dale Voss se- cured Nall's signature on the petition. The date reflected on Wall's signature is November 17, 1975. The following day Voss returned the petition to B. Pfister. In the hearing before me, B. Pfister did not specifically respond to the conduct and statements attributed to her by Dale Voss regarding the petition although she did deny any complicity in the support of the petition or the circulation of it. In the prior hearing, however, before Administrative Law Judge Davis she admitted that she had referred a driver to Dale Voss but this had been done at Voss' request since Voss could not contact the driver. She denied that she had ever had possession of the petition. Again I accept the testimony of Dale Voss over that of Al Pfister and B. Pfister. Al Pfister never identified who initially sought the information as to how employees could cease paying union dues or when. B. Pfister's failure to be more directly responsive to Dale Voss' allegations in the hearing before me hampers her credibility on this point. As previously expressed, I found Dale Voss to be an impres- sive witness who appeared to be more candid, and being no longer an employee, disinterested. In addition, the remarks and conduct attributed to Al Pfister by Dale Voss are con- sistent with other testimony which I previously credited herein with the respect to Respondent's conduct toward Local 525 and its supporters, as well as his conduct in con- nection repudiating the collective-bargaining agreement [Local 525 had attempted to appoint Knebel as a union steward prior to the circulation of the petition, a move opposed by Al Pfister The reference is apparently to the fact that Respondent's emplosees were not engaged in hauling materials in connection with construction jobs and therefore union membership and a "red" union card were not necessar) In order to insure that the deliheries could be made to construction job sites without union problems 223 I)ECISIONS 1OF NA'(IONAL I.ABOR REIATIONS BOARD with local 525 discussed hereinafter. From Voss' credited testimony, I find that Respondent did sponsor and encour- age the circulation of the UD petition among its employees and that by so doing it violated Section 8(a)(l) of the Act. On November 14, Carolyn Voss was given the language of a warning letter by B. Pfister to be issued to Dennis Knebel for typing. According to ('arolyn Voss, B. Pfister told Voss to "get it out todasy, get it typed up. so we can get it to him, because this is the second notice, and we can get him out of here now." Voss did as she was directed. Ihe following day, B. Pfister reported to Voss that the letter was not going to do, that the' had to watch Knebel closer because they had to get him on two counts of the same offense. About a week later. B. Pfister told Carolyn Voss to go through the records and check all of the drivers weight tickets to see if anv of them overloaded, because if Respon- dent reprimanded just Knebel for overloads he and the Union would feel that Respondent was holding a grudge against Knebel. Voss did as she was told and as a result prepared warning letters dated November 25, regarding overloads for employees Dale Voss, Robert Wall, De- Wayne Pfister. Robert Jannett, and Roland Bellam. The letters were distributed by B. Pfister except for Dale Voss' who received his from Carolyn. Carolyn Voss testified that when she was given the letter to give her husband by B. Pfister. B. Pfister told her to tell Dale Voss not to worry about it because "we're just doing this so Dennis [Knebel] doesn't feel we're holding a grudge against him." Dale Voss similarly testified that he was in the Pfister's kitchen the evening that B. Pfister distributed the warning letter to Ron Bellam. B. Pfister, according to the testimony of Dale Voss which was not denied in this regard. told Bellam not to worry about the letter, that Respondent had to give one to all of the drivers so Knebel would not think they were just picking on him. B. Pfister did not specifically deny the conduct attribut- ed to her by Carolyn and Dale Voss with respect to the preparation and distribution of the overload warning let- ters to the drivers. It is noted, however. that in the proceed- ing before Administrative Law Judge Davis. B. Pfister tes- tified that she did tell Carolyn Voss to advise Dale Voss when distributing the warning letter to him, not to worrv about it, although she did deny making similar remarks to other drivers. The admission to this extent makes the al- ready credible testimony of Carolyn and Dale Voss even more credible and I therefore accept these versions of the comments made by B. Pfister regarding the warning letters. In view of Respondent's previously expressed intention to rid itself of Knebel, I find that Respondent implied to its employees through the warning letters its willingness to en- gage in subterfuges in order to discharge adherents to L.o- cal 525. Accordingly, I find that by this action Respondent violated Section 8(a)( 1) of the Act. On the evening after the warning letters regarding over- loads had been issued to the employees, a number of em- ployees met at the home of Dale and Carolyn Voss. Ac- cording to Carolyn Voss, Respondent's employees at this meeting discussed better union benefits, but she did not describe the meeting as a union meeting. There appears to have been no union representatives at the meeting. On the following Monday, when Carolyn Voss reported to work B Pfister approached her and related that she knew all about the fact that the "guys" had been over to Voss' house and remarked that it was going to lead to another strike be- cause the "guys" should have come to Al Pfister first. that they should not have had a union meeting at Voss' house. B. Pfister added according to Voss, that she did not think that Voss was a good employee because Voss did not tell B. Pfister that the employees were omer to her house. With respect to how she was aware of the meeting, B. Pfister reported to Voss that she had driven by the Voss home and had seen the employees' cars there. B. Pfister's testimony regarding the matter was that she had only incidentally observed all of the drivers' cars parked at the Voss' home as she was driving to the post office to mail some letters. B. Pfister admittedly said "some thing" to Voss about "what were all of the drivers doing there." the following workday, but claimed she never really found anything out. B. Pfister denied that she had said anything to Carolyn Voss about a union meeting and de- nied that she accused her of having a union meeting. B. Pfister's admission that she did inquire of Carolyn Voss about what the drivers were doing at her house lends cre- dence to Voss' testimony regarding the incident and I therefore credit Voss. Consequently, I find that B. Pfister's inquiry' of Voss constituted interrogation in violation of Section 8(a)( 1 ) of the Act and further conveyed to Voss the impression that Respondent was keeping the concerted ac- tivities of its employees under surveillance. On December 6. following a meeting of the employees with both Locals 525 and 50 on December 5. which meet- ing was generally announced by the Unions through a no- tice posted on Respondent's premises, Al Pfister called a meeting with the drivers. At this meeting, Al Pfister in- quired of the drivers what had happened at the meeting with the unions and was advised by the drivers that thev had voted to abide by the Local 525 contract. Pfister an- nounced to the employees that the lIocal 525 contract was void and had been signed simply to get the Local 525 pick- et line established in July 1975 at the Pfister premises re- moved. Al Pfister further stated, according to testimony of drivers Eugene Rover and Dale Voss, that he could not pay the wages and all of the benefits under the Local 525 con- tract as he would go broke or sell out. Royer further testified that Pfister suggested that the employees start a union of their own or join the CIU. 9 Al Pfister admitted in his testimony before Judge Davis that he had a meeting with the drivers after the December 5 union meeting but denied that he had asked of them what had happened at the meeting. With respect to the reference to the CIU, Al Pfister stated that Dale Voss was the one who had brought the subject up thinking that maybe the employees could go along with something like that. Al Pfister did not elaborate with respect to his re- sponse regarding this CIU idea. He admitted that he ad- vised the employees that if they went hourly the employees would definitely cut their working time in half "which nor- mally happens on hourly jobs." "I I credit the testimony of '" ()^ Iof IdcpcirCltlltl t 1iiio11 'it at % D, i'i. lit Itllat ,i'llier Aip, of thc opino n Ihacil nplo.,,u e.. de- prli ,d ll/ it[It)1/ I111¢1¢111 ITI t . r llll e\ t'tl bwed uplnw mer clll tg¢ 224 AL PFISTER TRUCK SERVICE Royer and Dale Voss over Al Pfister with respect to the events of the meeting on December 6. Pfister's denial of asking employees what had happened at the previous union meeting strains credulity. Since Pfister had called the meeting himself and since the meeting shortly followed the union meeting it would be logical to conclude that the pur- pose of Pfister's meeting was to ascertain what had hap- pened and what the impact would be upon his operation. Indeed, this appeared to be the entire subject matter of the meeting. I also credit Royer with respect to Pfister's sug- gested support of the CIU inasmuch as Pfister did not specifically deny that he indicated any support of that or- ganization. Accordingly. I find that by such conduct Al Pfister violated Section 8(a)(1) of the Act. I further find that Pfister's remark regarding going out of business if he had to pay the hourly rate, a remark he apparently did not specifically deny, constituted a threat of discharge in viola- tion of Section 8(a)(1) of the Act. The remark was prem- ised, not on an actual calculation or a provable basis for reaching a supportable conclusion that he would be forced out of business, but rather upon his own conclusion that he would be forced out of business because of the employees' failure to continue their performance level under an hourl] pay rate. d. The discriminatory discharige of Dennis Knebel Dennis Knebel began driving for Respondent on a part- time basis in May or June 1974. He worked for approxi- mately a year on a part-time basis hauling coal. During the time that he was working on a part-time basis, Al Pfister solicited Knebel to come to work on a full-time basis, and Knebel did so in the first part of July 1975. Knebel, like the other drivers of Respondent, was paid on a percentage ba- sis receiving 28 percent of his gross revenue from his hauls for Pfister. Knehel had been a member of Local 525 prior to his employment with Respondent even on a part-time basis. Upon beginning employment on a full-time basis he dis- cussed his payment of Local 525 dues with B. Pfister and authorized her to deduct dues from his checks to be for- warded to the Union. In July. subsequent to his full-time employment by Re- spondent Knebel along with six other employee drivers of Respondent went to a Local 525 meeting held at Wood- River High School where the group talked to Tim Burns, business agent of Local 525. The employees complained about their failure to receive an hourly wage rate from Pfister instead of the percentage rate they were receiving. Burns related that he would get in touch with Pfister re- garding a contract. According to the testimony of Tim Burns. the initial meeting with the employees took place on July 20. In his meeting with the employees Burns discussed what the em- ployees wanted in a contract and advised them that he would see what he could come up with. Employees took a strike vote which was unanimously affirmative and on the following day, Burns contacted Al Pfister by phone. Burns of loads, 'ould not ,ork :1a hard under ain hotlr)r pai\ steiin. an11, there- [ore Respndernl n lotuld lose tlootle explained to Pfister that he had had a meeting of his mem- bers, employees of Pfisters, and explained that they wanted a contract along the lines of the Local 50 coal haulers con- tract which provided for an hourly wage. Al Pfister re- sponded that he was familiar with such a contract and agreed to a meeting with Burns to talk about the matter. The record does not reflect the date when the meeting was set but it was to be at the union hall. Al Pfister, according to Burns, did not appear at the appointed time, but the two did meet later as discussed below. In the meantime however. Al Pfister. a day or two after the employees meeting with the Union, called a meeting of his employees and discussed at some length his opposition to the employees' organizational efforts. More about this meeting will be set forth below under the presettlement conduct heading. In late July. Al Pfister met with Tim Burns at the Local 525 hall where the two discussed the contract. Burns testi- fied that the substantial part of the discussion involved Pfister's argument that the employees were making more under a percentage rate than they would be under the hourli rate that the Union was offering. In any event. Pfis- ter took a copy of the proposed union contract home for further consideration. Thereafter., Burns ascertained from Respondent's em- ployees that contrary to the contentions of Al Pfister the employees were working 16 to 18 hours a day to obtain on a percentage basis what they would make on the hourly rate for an 8-hour day that the Union was proposing in its contract offer to Pfister. Burns met with the employees on the morning of July 29, and assured himself that they were aware of the rates being sought bv the Union. The employ- ees decided to strike and after preparing picket signs pro- ceeded to the premises of the Respondent and began pick- eting. Shortly after he began picketing, Knebel was ap- proached by Al Pfister who gave him a suspension letter reflecting his failure to report to work on Saturdays and being late on occasions. The suspension notice was signed bh Harry (iriffin, owner of the leased truck which Knebel had driven for Respondent. While the legality of Knebel's discharge as well as the discharge of certain other employees of Respondent at the same time was not litigated in the instant proceeding since that portion of the settlement agreement having to do with discharges was not set aside, it is sufficient to note that Knebel was reinstated on September 19, pursuant to the settlement agreement. Upon reinstatement Knebel began driving an older gasoline engine powered truck for Re- spondent. Knebel was paid at an hourly rate provided in Respondent's collective-bargaining agreement executed with local 525 on August 1. In late October, Knebel was appointed as a union stew- ard by Business Agent Tim Burns. On October 31, by letter from its attorne.. Tom Hanna. to the Union Respondent objected to the Knebel's designation as shop steward pointing out that under the collective-bargaining agree- ment with l.ocal 525 stewards were required to be elected by either the Local Union or by members of the unit em- ployed by Respondent. Hanna's letter requested that the contract be followed by conducting an election for a stew- 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ard. It does not appear that any election for stewards was conducted at any subsequent time. Prior to his participation in the strike in late July, Kne- bel had no complaints about his work directed to him by Al Pfister. According to Knebel his first criticism regarding his work came from Respondent by letter dated November 3, shortly after he had been named as a steward by Tim Burns. This letter signed by Al Pfister related that it consti- tuted a written warning pursuant to the collective-bargain- ing agreement. The letter noted that the subjects of the written warning had been the subject of previous discus- sions with Knebel which had not been effective. The com- plaints outlined in the November 3 letter regarding Knebel's work will be taken up seratim. The first portion of November 3 letter complained that Knebel had consistently overloaded his truck and specified 3 dates in September and 8 dates in October, the last date being October 27, when Knebel was fined for an overload. Knebel did not deny that he could have been overloaded on the dates specified in the letter. Further, he admitted that he had been fined on October 27 as a result of being 1500 pounds overweight on a load of grain. On this occa- sion, Knebel phoned Al Pfister who paid the fine of ap- proximately $100 to $120 but subsequently deducted it from Knebel's paycheck. This, according to Knebel was standard procedure when other drivers had been caught overloaded. Overloads, according to Knebel, were not un- usual, and other employees also were frequently overload- ed. This contention is well supported by warning letters belatedly issued to other drivers who had as many, some substantially more, overloads than Knebel for the same period. The second complaint regarding Knebel specified in the November 3 letter was his failure on September 26 to "tarp" a load of coal and on October 14 to tarp two loads of grain. Apparently, "tarps" or tarpaulins were necessary to prevent fine mesh coal or grain from blowing from a moving truck. Knebel admitted that he may not have tarped the September 26 load of coal because he had con- cluded that the coal he was carrying was wet and would not blow. With respect to the October 14 load of grains, Knebel specifically denied that he had failed to tarp his loads. He further denied that Al Pfister had said anything to him regarding the failure to tarp any loads prior to his receipt of the November 3 letter. I credit Knebel's testi- mony in this regard. The third item complained of in the November 3 letter was that on October 12, Knebel's truck had been 7-1/2 quarts low on oil and that on October 30 and 31, Knebel had failed to check the oil in his truck. The letter requested that Knebel check his oil every morning before leaving the premises and add oil if necessary. Knebel insisted that he checked his oil in his truck each morning. He never re- called an occasion when his truck was 7-1/2 quarts low on oil, although he admitted that Al Pfister on one occasion asked him about it being 7-1/2 quarts low. Knebel had responded that he had no idea how it could be so low because it was not that low in the mornings. Occasionally, Knebel would have added oil to the truck and would ad- vise B. Pfister who kept a record of the oil added to each truck. The November 3 letter complained that on October 16, Knebel ruined a tire because he had refused to change it. Knebel admitted that he had a tire with a slow leak in it and that since he did not have a jack in the truck at the time, he stopped three different times during the day to put air in the tire to keep from ruining it. He denied that the tire had been ruined and stated that the nipple was still in the rim indicating that the tube was still good when he returned the truck to Respondent's premises on the eve- ning of October 16, and advised Al Pfister and Nancy Pfis- ter regarding the tire problem. Knebel testified that noth- ing further was said to him about the tire until he received the November 3 letter. He was not charged by Respondent for a ruined tire and never shown the tire that he had alleg- edly ruined. Finally, the November 3 warning letter complained that on October 16, Knebel broke the glass plate covering the speedometer in the truck. This matter was not denied by Knebel and he testified that when the speedometer turned over multiple zeros, the speedometer needle would begin bouncing all the way across the scale. Knebel noted that when he hit a bump it would cause the speedometer to return to normal operations so when the situation devel- oped again, he began to tap on the speedometer attempting to correct the situation and prevent the speedometer from racketing, clicking, and possibly twisting the needle off. On one such occasion, the glass covering the speedometer pop- ped out, fell on the floor and broke. On November 14, Knebel received his second warning letter. This letter complained that on November 7, Knebel was directed to load half-inch rock out of the St. Louis Stone Company and deliver it to 4-D Supply Company, Inc.. but that Knebel had picked up and delivered grade 8 stone instead. The letter further complained that Knebel, contrary to instructions, had misdelivered a load of grain from Warden Elevator Company to St. Louis Grain Com- pany instead of Continental Grain Company. The letter noted that Knebel could have made three loads that day had he followed instructions rather than the one load that he had actually carried, and added that the next time he failed to follow specific instructions he would be fired. Further, the November letter stated that Respondent had watched Knebel refuse to check water, oil, and tires and stated that if he refused to do it any longer he would be fired. In conclusion the letter stated Respondent had noticed that Knebel had been using his handbrakes instead of his footbrakes thus requiring an adjustment of the truck brakes every night. Finally, the letter without further expla- nation, warned Knebel to "quit harassing Carolyn Voss." With respect to the load of half-inch stone, Knebel testi- fied that he was directed at East St. Louis Stone Company to a pile of rock from which he was to make the delivery to 4-D Supply Company. The ticket on the stone reflected, however, that Grade 8 stone was picked up by Knebel from East St. Louis Stone rather than I-inch chip rock and that delivery was made and accepted by 4-D Supply on November 7. There is no doubt but that an error was made in the delivery. In this regard General Manager of 4-D Supply at the time. Bonita Hanks, testified that she signed the receipt for the stone without noticing that the delivery 226 AL PFISTER TRUCK SERVICE was of Grade 8 stone instead of the half-inch chips. It was not until subsequently on the same day that B. Pfister phoned Hanks and asked her if she had received the half- inch rock she had ordered inasmuch as Pfister's copy of the ticket reflected Grade 8 stone had been delivered. Knebel testified that he picked up the stone at East St. Louis Stone Company after having been directed to the pile by an employee of that company. Whether he should have known what half-inch chips were as opposed to Grade 8 stone or. as described by Bonita Hanks three- eights minus, is open to question. Knebel could hardly have been faulted anymore for failing to note that the de- livery ticket was marked Grade 8 stone than Hanks' failure to notice it when she received it. There was no evidence that 4-D Supply encountered any loss as a result of this misdelivery. Hanks did testify however that she requested B. Pfister not to assign Knebel on any further deliveries to the 4-D Supply because she did not like Knebel's "attitude." 1B Knebel admitted his mistake with respect to the allega- tion in the November 14 warning letter to Knebel regard- ing an improper delivery of grain to St. Louis Grain Com- pany. He had picked up a load of grain from Worden Elevator Company in Worden. Illinois. with a ticket and direction to deliver the grain to Continental Grain Compa- ny with whom Worden had a contract to provide a certain amount of grain. Knebel proceeded to Continental Grain where he encountered a long line of trucks waiting to un- load grain. Because of the delay in the line, Knebel con- cluded that the grain elevator had broken down and decid- ed that he would deliver the load to St. Louis Grain instead and could thereby better his time since he was being paid a straight hourly rate. Further. Knebel testified that he had previously made deliveries from Worden Elevator to St. Louis Grain and knew Worden would receive credit for whatever grain that was delivered to St. Louis Grain. In this regard, Knebel testified that he had been told by Ed- win Hemann, operator of the Worden Elevator Company, that although the ticket was made out to Continental Grain it did not make much difference whether or not it was delivered to St. Louis Grain because he had grain sold to both concerns.' In view of his failure to return to Worden for another load after a reasonable time, Hemann phoned B. Pfister to inquire as to Knebel's location. An effort was thereafter made to locate Knebel and when he was located he was directed to return to Respondent's place of business. Already somewhat angered by having to return earlier to Respondent premises. Knebel encountered Carolyn Voss who proceeded to chastise him for his failure to follow I Hanks who impressed me as a disinterested and therefore credible wit- ness related that on one previous occasion on the date she could not specif_ a Pfister driver had dehvered some stone to 4-D Suppls which did not conform to the order. Hanks did not specif, whether or not an error had been made in Pfister's office or through the drivers Interpretation of the order. The record reflects nothing further regarding the identits of the driver or whether or not any disciplinary action was taken against him by Respoindent as a result of the error. 1 Hemann, called as a witness by Respondent. denied that he had made such a statement toi Knebel on the day in question but admitted he may have made such a remark to Knebel on previous occasions instructions of Worden Elevator. This encounter reduced itself to an exchange of invectives which apparently prompted the reference in the November 14 letter to har- assment of Carolyn Voss. In connection with the reference of the November 14 letter regarding his refusal to check water, oil, and tires, Knebel denied that he had ever refused to make such checks. On the contrary. he contended he checked oil, wa- ter, and air several times a day. With the regard to use of the handbrakes. rather than the footbrakes on his truck. Knebel testified that Nancy Pfister drove with him on one occasion to show him where to make a particular delivery. Apparently, on this occasion. Knebel used his handbrakes in regular driving as had been his practice up to that time. He justified the practices on the basis that although use of the handbrakes. which oper- ated only brakes on the truck trailer, caused more wear on the trailer brakes, the trailer brakes were much less expen- sive to replace than the tractor brakes. According to Kne- bel. Nancy Pfister said nothing to him about using the handbrakes. After receipt of the November 14 letter, Kne- bel thereafter used his footbrakes only. Knebel's conversation with Al Pfister and B. Pfister on the evening of November 14 has already been set forth above. Knebel received no further work from Respondent after November 14 until about November 19. On or about November 18, Knebel. after observing that the other em- ployees would have assignments and were continuing to work, phoned Pfister and advised him that before Knebel filed any grievance with Local 525 or went to it with any- thing he wanted to talk to Pfister. He complained to Pfister that Pfister was working everybody else around Knebel and Knebel was going to file a grievance unless Pfister paid him backpay and put him to work like the rest of the driv- ers. Pfister, according to Knebel, said he could not do that and insisted that he had no work in Knebel's area. Pfister claimed that everything was out in Local 50's area.' In this conversation which was the only conversation reflected in the record between Knebel and Al Pfister between Novem- ber 14 and Knebel's discharge of November 25. Pfister made no reference at all to oil levels in Knebel's truck. By letter dated November 25, signed by Al Pfister, Kne- bel was advised that he was terminated for failing to follow instructions after receiving two reprimands and warnings because of his failure to check the oil in his truck before leaving Respondent's premises. The letter noted that on November 20, Pfister had failed to check his oil before leaving and upon return of the truck it was found to be 7- 1/2 quarts low and resulted in damage to the truck engine. The letter further noted that notwithstanding a previous l It is abundantly clear from the record as a whole that Pfister consis- tently "played both ends against the middle" contending wherever it suited his purpose to plas off one union against the other Here in his remark to Knebel. which he did not specifically den\. he was referring again to Local 50'S jurisdiction notwithstanding the fact that on September 4. he had been advised hb letter from Bill Bounds. President of Joint Council No. 65. Inter- national Brotherhood of Teamsters. Chauffeurs and Helpers of America that jurisdiction over Respondent belonged to Local 525 and that it was expected that Pfisier would live up to his contractual obligations with Local 525 Further this remark to Knebel wa.s after the settlement agreement which required hilt he not recognize or give anis effect to an agreement with I ocal SO 227 DECISIONS OF NAT IONAL LABOR RELATIONS BOARD warning regarding the use of handbrakes Knebel had con- tinued to use the handbrakes causing unnecessary wear to the trailer brakes. It is Respondent's position that Knebel engaged in the conduct outlined in the November 3. 14. and 25 letters and that his discharge based upon that conduct was justified. According to Al Pfister's testimony before Administrative Law Judge Davis, the matter which precipitated Knehel's discharge was Knebel's being 7 1/'2 quarts low on oil in his truck on November 20. This matter was brought to his attention by Nancy Pfister. After he reviewed the records which reflected that Knebel had not put any oil in his truck for a period of about 4 days, Al Pfister decided to dis- charge Knebel because "you just don't keep throwing monev after bad money." He claimed that Knebel had ruined a $3,000 engine, that Knebel had "rubbed" two- thirds of the brakes off of the trailer and that he was moire or less an "unexperienced" truckdriver. I cannot'accept Respondent's contention as to the basis of the discharge of Knebel. Respondent's post settlement 8(a)( I ) violations including expressed intentions to get rid of Knebel, which I have previously found above, fully w\ar- rant the conclusion that Knebel was discharged because of his union activities. There is, in addition, however. other evidence which undermines Respondent's position in this matter and clearly reveals that the basis for the discharge of Knebel was pretextual in nature. First there is the timing of Knebel's first warning letter only a short time after Respondent objected to his designa- tion as steward. Most of the alleged transgressions of Kne- bel complained of in his first warning letter of November 3 occurred more than 2 weeks prior to the warning letter. Only the overload violations approached the date of the letter. Knebel's overloads are not significant in comparsion to overloads by other drivers for the same period. Ihus, compared to Knebel's overloads for the period September 19 through November 3, driver Robert Wall had 18. driver Robert Janett had 13. and Dewayne Pfister had 11 Yet these drivers did not receive warning letters until 3 weeks later in a clear but futile attempt to avoid the inescapable inference, indeed conclusion, of discrimination against Knebel. The only deficiency with respect to Knebel's work con- duct which was repeated in any of the warning letters was his alleged failure to check the oil. water, and tires on his truck each morning and his use of the handbrakes instead of the footbrakes on his truck. With regard to the latter. however, there was not one hit of evidence in the record to contradict Knebel's assertion that after his first warning on the use of the handbrakes on November 14. he thereafter discontinued the use of them in the manner objected to by Al Pfister. In the absence of such evidence I can only con- clude that Respondent's claim that he was continuing to use the handbrakes had no foundation in fact. With respect to the failure to check his oil, I note that in Knebel's initial warning letter he was accused of failing to check his oil on October 30. Yet, Bernice Pfister testified after reviewing the records of oil usage by the drivers Kne- bel added one quart of oil to his truck that day. Accord- ingly. I do not regard Respondent's oil records particularl? reliable. Nor do I find B. Pfister's testimony regarding her obser- vation from the house the drivers checking their oil, tires, and water each day,. reliable or convincing. Even though the record does not reflect the distances involved it is clear that the alleged observations took place in the darkness of earls morning hours. I am not persuaded by B. Pfister's demeanor in testifying or the circumstances about which she testified that she could have had sufficient yard lighting to observe close enough whether a driver was checking his oil. Further, it is obvious that Al Pfister from his own testi- monv went to the oil book records to conclude that Knebel had not been checking his oil daily.l4 not to B. Pfister. Accordingly. I credit the testimony of Knebel that he did check his oil each day. Whether or not Knebel checked the oil himself before going out on his trips, there is little basis for concluding that ain damage to his truck was due to his failure to; check the oil as implied by Respondent. I his is because Nancy Pfister testified that she checked the oil in Knebel's truck each evening before Knebel took the truck out the follow- ing day. I accept Nancy Pfister's uncontradicted testimony in this regard as accurate and truthful. Thus. I conclude that any shortages in oil were a result of the normal opera- tion of the truck during the course of the day and not due to anv failure of Knebel to check the oil in the mornings. Since the record does not show that Knebel worked an,- time between November 14 and 19, and since Knebel onlv worked about 4 hours on November 20, I find it difficult to understand how he could have used 7 1/2 quarts of oil in such a short period. However. even if he did use that amount of oil it still would not reflect that his failure to check his oil damaged the truck engine. Since Nancy Pfis- ter testified she checked Knebel's oil each evening, and since drivers are not, according to Nlancs Pfister, required to check their oil during the course of the day there was no basis for Respondent to conclude that any damage to Knebel's truck was due to his failure to check his oil. Fur- ther, there is no evidence whatsoever showing Knebel's driving habits were abusive to the truck engine. Under these circumstances, I conclude that no engine damage was attributable to Knebel. and Respondent's claim to the con- trary is demonstrable of its effort to find fault with Knebel and establish a basis for his discharge. The pretextual nature of the discharge is reflected by still other evidence. Knebel was the first man to whom Respon- dent ever issued a written warning concerning his work. While Respondent defended its action on the basis that it was required under the contract with local 525 this posi- tion is contradicted by Respondent's subsequent claim that the L ocal 525 contract was void ah initio and Respondent had not complied with it. Accordingly. I find that Respon- dent was simply attempting to pave the way for Knebel's discharge, a finding that is confirmed through the credited statements of Knebel and Carolyn and [)ale Voss set out 1 I .l his 'i,, IltlIII s I/lr 1 IIn fr`ollI trhe I d c11'd I . , I i fatl lli serxcs i\lnI I ti. 81)1)xN P1t In PfI ri'I d re II 1 finI 1 it xII ILItrf% Ktehel',d l ImchIfe hI h11i, levid AI P'fit ei ,lTl icd It c, on l uidc fhnli I i lt rcll rrd that KI l I cl had n11ot nhe Caha iI[ ,I Iecular]' h . u ,ic .ralal d hc Cen idded thiie ,e~.c1A ,., prctdinr ,rc emhcl 20 II o. [htieh xdenc Is thIat rh KnChe d Io- oilk fil sccrll d \ i l i Noir\lr r ' t Sr 1 ll\ ts l It }1 it h .. Ic ' ,I kedl N CN II}I l 1e I 1I1 .1i tr l }l h Li 1 N I-1 C 'hI eC 1 21 228 AL PFISTER TRUCK SERVICE under the post settlement conduct section above. It cannot be argued that Knebel was an ideal emploNee. That he made mistakes in judgment as revealed by the Worden Elevator episode is clear. But the record is not sufficiently clear to establish that he was at fault in the delivery of the wrong size stone to 4-I) Supply Company. Further, when his deficiencies or errors were noted to him it was his testimony, which I credit, that he corrected them. Finally, the credited evidence does not show that Knebel's transgressions were any greater than other of Respondent's employees. Based on all the foregoing and considering the record as a whole, I find that Respondent's discharge of Dennis Knebel was based upon union considerations in violation of Section 8(a)(3) and (I) of the Act. The General Counsel also argues that the discharge vio- lated Section 8(a)(4) of the Act premising such argument on the testimony of Michael Voss regarding an August 8 conversation with Al Pfister and on Knebel's testimons regarding his discussion w ith Al Pfister and B. Pfister on November 14. This testimony, the General Counsel con- tends shows that the Respondent was upset at those who took their problems with Respondent to the Board and that a substantial portion of the reason behind Respondent's dissatisfaction with Knebel was his cooperation with the Board in the first charge filed with the Board. Michael Voss who had been a driver for Respondent and who had been discharged by Respondent during the course of the July strike testified that following the strike he had returned to Respondent's premises to pick up some person- al handtools and while there he talked to Al Pfister. Pfister told him that had Voss not struck he would have had a job with Respondent, adding that going to the National Labor Relations Board was not going to settle anything. just cause a lot of hard feelings. It does not appear that Al Pfister denied that comment in his testimony before Ad- ministrative Law Judge Davis. I credit Michael Voss and find that the comment was in fact made. Knebel's testimony regarding the November 14 conver- sation with the Pfisters had been previously set forth and has been credited In that lestimon,s Knebel related how Al Pfister sought to persuade Knebel to quit and referred to the fact that Knebel and the other employees involved in the Board settlement had cost Pfister thousands of dollars. I conclude from the testimony of Knebel and Michael Voss that Pfister did indeed harbor a resentment against employees for having been insol',cdl In the Board proceed- ings. i find, in agreement with the position of the General Counsel, that the reference b, Ali Pfister to the cost of Knebel's reinstatement and the backpas to him and other employees not reinstated in the sanie conversation in which Knebel was solicited to quit reflects an animosity on the part of Respondent toward cmplos'ees because the- soiugiht vindication of statutor, rights thluigh the Board, n .:ni- mosity which was ca;ii-ried oer into Knebel's ultimate pre- textual discharge. I therefore conclude and find that Knebel's discharge violated Section 8(1)(4) as well as Sec- tion 8(a)(3) and (I) of the Act 'l Milhach a s , Sa.-i ,,,i '1 (thoe inl itdd :Ld coxcicd h\ th, sub ,c ittllt ielicnlcrlt n ,C, ilrcc1 ll 1 ( ix 14 ( '\ St) h' e. (Concluvion 4with the respe(t to the post settlement conduct In view of my findings with respect to the post settle- ment 8(a)( ) violations and the inadequate posting as well as the 8(a)(4), (3), and (I) violations with regard to the discharge of Knebel, I must necessarily conclude that the Regional l)irector's action in setting aside the settlement agreement in Case 14 CA--8907 was well warranted. Ac- cordingls. the settlement agreement failed its purpose and cannot be held to be a bar to litigation of the alleged pre- settlement violations. See Jacks.on Manufacturing Companr. 129 NL.RB 460 (1960). 3. The presettlement conduct a. 7he 8(a)(/ l) violations The presettlement conduct relating to the 8(a)( I) viola- tions is predicated primarily upon statements of Al Pfister to employees made to those employees at a meeting follow- ing their contact with Local 525 in late July and after the union through its Business Agent Tim Burns had advised Al Pfister of the employees' desire to have Local 525 repre- sent them. The meeting took place about July 23 in the tire shop on Pfister's premises. Respondent's former employee John Parke testified that Pfister opened his remarks with a question of who went to the Union and why. When there was no immediate response. Pfister said he knew who had done it and mentioned a man named Klaus who was not an employee of Respondent and who Pfister said was "pretty well in with the Union" and like to stir up trouble and disturb companies. Both Parke and Knebel who were in the attendance of the meeting acknowledged to Pfister that thes swanted union representation. There followed some discussion on the percentage rate paid drivers by Re- spondent and the drivers' desire to have an hourly rate. IPfister maintained that the drivers on the percentage rate were making more than L'nion scale. He added, according to Parke. that if the Union did come in he would just fold up and just sell out or move out. Finally, Pfister told em- plo ee's. according to Parke, that the first son-of-a-bitch who walked strke on his property would he fired. Parke's testmnions is generalls corroborated by Knebel and .ax rence C hrssty. another driver of Respondent at the time. Al Pfistei admitted to some of the comments attributed to him b'h the employees in his July meeting with him Spccificalls he admitted that he told them that if he had to pai ;an houris ',age it would put him out of business. that he had expel imnced It before. and the same thing would happen again. that the drivers would just "drop down'' in iheir work and not get the loads. He admittedly insisted the d isers were making more mones on a percentage basis han the\ would on a hourly rate. While he remarked in his restimon', that he understood that an individual named Klaus "pepped" the drivers up to get the Union move- menis started he did not "think" hc mentioned Klaus to the enmploxees in the meeting. He denied saying that he would fire an,,one who walked the picket line. After careful consideration of Al Pfister's testimony. I credit the testimon' of Parkc. Knebel. and Chrvsts where 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they contradict Pfister's.'6 I therefore find that Pfister's re- marks to the employees in the meeting at the tire shop constituted interrogation, threats of discharge for engaging in union activity, and a threat to close the business in the event of union organization, all in violation of Section 8(a)(l) of the Act. I further find that by the reference to Klaus as having been the one who contacted the union Pfister conveyed to the employees the impression that he had their union organizational efforts under surveillance, and therefore further violated Section 8(a)(l) of the Act. The fact that Pfister may have been in error does not affect this conclusion since, error or not, the statement tended to demonstrate to the employee listeners that Respondent was actively seeking to ascertain who was seeking out the union and suggested that Respondent had a source of informa- tion in that regard. It is the testimony of John Parke that following the strike which occurred at Respondent on July 29, 30, and 31, he, Knebel, and Lawrence Chrysty all of whom had partici- pated in the strike and had been discharged, returned to the Pfister premises about August 4, and spoke to Al Pfis- ter and B. Pfister and asked to go back to work. According to Parke, Al Pfister remarked that there was no work for them. B. Pfister laughed and told them the union had sold them down the river. Knebel's testimony with respect to the incident was that Al Pfister had said he had told them not to go down to the union and that the union had sold them down the river. Chrysty did not testify concerning these particular re- marks of the Pfisters in the hearing before me, although he was called as a witness. He did testify concerning these remarks in the hearing before Administrative Law Judge Davis and in his prehearing statement to the General Counsel which was introduced into evidence by Respon- dent he referred to such remarks. In his statement he at- tributed the remark about the union selling the employees down the river to Al Pfister. Al Pfister denied making the remarks attributed to him by Knebel and Chrysty regarding their being sold down the river by the union with the flippant answer "No. Fig- ured they would find that out soon or later themselves [sic]." B. Pfister denied making any such remarks. I credit Knebel and Chrysty and find that Al Pfister did make the remark attributed to him by them. In so finding, I conclude that Parke was in error in attributing the remark to B. Pfister. I find that the remark constituted rank inter- ference in the employees support of the union calculated to undermine and disparage the Union in the eyes of the em- ployees in violation of Section 8(a)(1) of the Act. 16 In making this credibility resolution as well as others regarding Plister it is appropriate lo note that Pfister's testimony before Administrative l aw Judge Davis was evasive and at times generally unresponsive. causing Ad- ministrative L aw Judge Davis to remark on the record that "this witness is apt to Just wander with his answers." an observation in which I concur While Pfister had steadfastly maintained to his drivers that the percentage pay system gave the drivers a greater rate of pay than the hourly union rate and notwithstanding that a comparison of the two basis of pay would re- quire knowledge of the average hours worked by the drivers, Pfister ais unresponsive and evasive to questions as to the average hours the truckdriv- ers worked. b. The presettlement 8(a)(2) conduct Any consideration of the presettlement 8(a)(2) conduct involved herein as well as that of the 8(a)(5) conduct dis- cussed infra, requires a discussion of the background and jurisdiction of Local 50 and Local 525 insofar as it related to Respondent's operation. Over the years, Respondent's operation was located in St. Jacobs, Illinois. That location up until 1973 was within the territorial jurisdiction of Teamsters Local Union 729 which was headquartered in East St. Louis, Illinois. The record does not establish that Respondent ever had a col- lective-bargaining agreement with that Union.17 Respon- dent at one time did employ some employees who were members of Local 729. Also, from time to time some of Respondent's employees including Al Pfister himself were members of Local 50 which was headquartered in Belle- ville, Illinois. Respondent did not have a collective-bar- gaining agreement with Local 50, however during the exis- tence of Local 729. About 1973, Local 729 was abolished and its territorial jurisdiction divided between Local 525, the successor to Local 729 and Local 50. Respondent's operation fell within the jurisdiction of Local 525. In August 1974, Marshall McDuffy, secretary-treasurer of Local 525 and Business Agent Tim Burns paid a visit to the Pfister operation and secured union-authorization and dues-checkoff cards from Respondent's employees at that time. According to the tes- timony of McDuffy, who impressed me as a truthful and straightforward witness and whom I credit, the August visit constituted an effort to ensure Respondent was complying with the Southern Illinois Builders Association Agreement and to ensure that employees were paying dues and to sign up employees who were not members. In addition, Mc- Duffy testified that some of the employees had phoned the Union and asked about joining. The visit had to be made in the early morning hours, around 3:30 a.m., in order to catch the employees before they were out on the road. The checkoff cards obtained during the visit were submitted to Pfister and he, at the demand of McDuffy, immediately submitted a check to McDuffy covering the dues of the employees. Having collected the dues the Union inexplica- bly failed to follow through and seek a collective-bargain- ing agreement with Respondent covering its coal hauling or commodity hauling operations, even though such opera- tions constituted the great bulk of Respondent's business. In fact, the record does not reflect any further contact be- tween Local 525 and the employees in Respondent until the following July. In July, seven of the Respondent's truckdrivers, becom- ing dissatisfied with the payment of union dues without having benefits to which they thought they were entitled, met with Local 525 Business Representative Tim Burns at ' The General Counsel contends that Respondent had been a member of the Southern Illinois Builders Association, a inulriemployer group. which had a collective-bargaining agreement with the Ieamsters Council co 5 nering construction work in Local 729 Jurisdiction. Respondent herein, esven though it did little construction work did not admit to being a member of the Assiociation I find it unnecessary to resolve this issue. What is material is that l ocal 525. the successor to Local 729, believed that Respondent was ; member ,of that organization and conducted itself accordingls 230 Al PF'IS'I lR 1 RUCK SFERVICE the WoodRiver High School in Fast Alton, Illinois, as pre- viously related herein. After he had learned through Burns of the emplosecs contact with l ocal 525. Al Pfister met with about six of his employees on Juls 30. and began discussing a coal hauling operation out of [)uQuoin. Illinois. to Springfield, Illinois, within the jurisdiction of I.oca;ll 5. On August I1 Al Pfister. according to his own admission, and notwithstanding that his employees were at that time picketing him in support of L ocal 525. proceeded to Belle- ville. Illinois, where he met with Barne's Irefts, business agent of Local 50. P'fister represented to I refts that he wanted to house his trucks in Local 50's jurisdiction and transfer his employees into that Local. Trefts, who who was not called as a witness in this and the prior hearing before Administrative Ilaw Judge Davis. agreed that this would he satisfactory. When Pfister raised the issue as to what was to be done about the picketing by I.ocal 525, Irefts allegedls phoned Marshall Mcl)uffs. According to the uncorrobo- rated and hearsa, testimionN of Pfister based upon I refts' remarks to Pfister. TIrefts advised MNcl)uffv that Pfister was going to house the trucks in L ocal 50's jiurisdiction and asked how "to get rid of these men on strike." At that point, Pfister's testinionv as to w\hat l'refts reported to Pfis- ter regarding MclDuffs's statecments gets confusing. I ssen- tiall, it appears that N1cl)uffv's response to lTrefts was that they could both sign a contract with Pfister but that the Local 525 contract would be declared void bh, the In- ternational Union. 'Ihe execution of the L ocal 525 contract would. however. be sufficient in the meantime to provide a basis for the removal of the picket line. At that time. Mc- Duffy, as reported bi' Trefts to Pfister, arranged to have Tim Burns meet with Pfister at the Townsend Restaurant near the Pfister home to sign the contract with l.ocal 525. Pfister immediately thereafter signed a coal hauling collec- tive-bargaining agreement with lIocal 50 covering his truckdrivers and maintenance men. T'here is not one iota of evidence in the record estab- lishing that Local 50 represented the mnajloity of Respon- dent's employees at the time that Pfister executed the col- lective-bargaining agreement with I.ocal 50. Indeed. Respondent makes no such argumlent. It is patenitl' clear. from Pfister's own testimony, that he sought out and signed the contract with Local 50 in an attempt to aoid an agreement with Local 525. I'hat Pfister ma ' have intended to move his trucks and emplo'ees into I ocal 50's jurisdic- tion, a move the record does not reflect was eser made, does not privilege his action nor does conmplicitls if ans, o n the part of the union in this regard. There can hardll hbe a clearer case of a violation of Section 8(a) 2) and (I ) of the Act than this case. I am compelled to the conclusion frorm whatever angle the evidence might be sieved that Respon- dent violated Section 8(a)(2) and It of the Act through recognition of. and assistance to. l ocal 5() as established by execution of a collectise-bargaining agreement with Lo- cal 50 on August 1, at a time when Local 5() did not repre- sent a majority of Respondent's emiployees in an appropri- ate unit. Cf. International L.adices' Garment K'orkeri' I nion, AFL-(IO10 /Bernhard-A ltmnpi Tc as (op. v R. R B., 366 U.S. 713 (1961). 4. The alleged violations of Section 8(a)(5) a. ihc appropriate unit W ith the respect to the 8(a)(5) violations based upon the charge filed bv l.ocal 525 in Case 14-CA-10029, on Febru- ars 16. 1977. the General C(ounsel alleges that the appropri- ate unit consists of: All drivers, and truck maintenance men and employed bs Respondent excluding office clerical and profes- sional emplo'ees. guards and supervisors as defined in the Act. Respondent does not seriously dispute this unit descrip- tion inasmuch as it conforms to the unit descriptions in the contract it signed with both Locals 525 and 50 on August I. Respondent does contend, however, that the unit should include Leon Nagle, a garage employee and mechanic and Nancy Pfister, a mechanic. as well as Carolyn Voss employed in the office as bookkeeper. The record does not provide a description of duties or functions of Nagle. Other than his title of garage man or mechanic there is little to assist in the determination of his unit placement. However, since the unit description includes truck maintenance personnel it would not appear inappropriate to include him in the unit. Accord- ingly, I find that Nagle should be included in the unit. \Vsith respect to Nanc' Pfister it appears that she would be statutorils excluded under Section 2(3) of the Act as a daughter of the employer. Even if she were not statutorily excluded her interest as a salaried employee is clearly not aligned with the drivers. I find that she may be properly excluded from the unit. Carols n Voss, bookkeeper, was primarily an office cleri- cal employee. Respondent does not seriously dispute this. Accordingly, I find that she is essentially an office clerical emplosee and may be excluded from the unit. b. 71e mnajoritl status of Local 525 It was stipulated by the parties at the hearing that the unit contained 12 drisers during July 1975. With Nagle included in the unit the total unit complement was 13 em- plosces. Ihe record contains dues checkoff authorization cards effective during Juls executed on behalf of Local 525 b; at least eight of Respondent's unit drivers. These includ- ed DLennis Knebel, Robert Walls, Duane Blakey. Robert Jalnctt, I awrcnce Chrsstv . Dale Voss, Robert Wall, and VWillialm lubhard. From the record testimony of B. Pfister it alppears that dues were deducted for these employees pursuant to these authorizations during the times material herein. I therefore find that the Local 525 represented a majority of Respondent's employees in the appropriate unit all relevant times when Local 525 sought recognition and bargaining with Respondent in July. c. The contract repudiation ()n November 10 and 22. and again on December 1, Dennis Knebel filed a griesance concerning his warning letters and his discharge hb' Respondent. By letter of its 231 DECISIONS OF NATIONAl. ILABOR RELATIONS BOARD counsel Thomas Hanna dated December 3. Respondciit replied to Local 525 representative Tim Burns regarding the grievances and stating that the grievances were not meritorious, that the contract with the L.ocal 525 was insal- id and court action had been initiated to rescind the con- tract, and that even if the contract was valid the grievances were untimelv. With respect to the initiation of the court action the rec- ord reflects that on November 26. Respondent filed a com- plaint in the United States District Court for the 7th Dis- trict of Illinois wherein it sought to have the collective-bargaining agreement adjudged null and void on the basis that it was executed only upon representation of Local 525 that it would be null and void (h inilio. Local 525, through counsel filed in December a motion to dismiss Respondent's complaint contending that the court lacked jurisdiction inasmuch as the Board had exclusive jurisdic- tion. It was not until December 28, 1976, that the motion to dismiss was allowed by the court. Thereafter, by letter dat- ed Februar? 1, 1977, Local 525 through Tim Burns request- ed that Respondent comply with the collective-bargainimng agreement and pay all health, welfare, and pensions pas- ments for the employees back to the period when the con- tract was first executed in August. It does not appear that Respondent complied with that request and Local 525 subh- sequently filed the 8(a)(5) charge litigated herein. d. I1'e (onttentlion of the parties Respondent advances two arguments with respect to the alleged 8(a)(5) violations. The first argument is that the collective-bargaining agreement with Local 525 was, Ias was contended in the Federal District Court action, a sham and void au) inirio. In this respect Respondent relies upon the testimony of Al Pfister concerning his conversations with Barney I refts on August I. outlined above under the presettlement 8(a)(2) conduct section. In addition. Respon- dent relies upon the testimony of Al Pfister and Nalnc Pfister regarding their meeting with Local 525 representa- tive Tim Burns at Townsend Restaurant when Pfister signed the collective-bargaining agreement with Local 525. In connection with the August I meeting with Burn:. Al Pfister testified before Administrative lIaw Judge Davis that when he met with Burns at the Townsend Restauiranit Burns handed him a collective-bargaining agreement anad said, "[N]ow, this is our contract. You want to look it over?" Pfister testified that he responded, "W'ell, what's the use of looking it over." that McDuffy had said it was just to be signed and be "tossed" to start with, and "there ain't much use to really signing it." Burns allegedly replied. "[T]his is the procedure we've got to go through." Pfister thereupon signed the agreement and he and his daughter left. Nancy Pfister testified that Burns told Al Pfister to sign the agreement, but that it did not mean anything. that 'It's just to get your picketers off your picket line" Pfisler signed the agreement. Burns picked it up and left leasing Nancy and Al Pfister at the restaurant. Respondent further contends that the fact that the agrec- ment was not intended to be effective is also reflected hb the Decembher 5 meeting of l.ocal 525 and I.ocal 5() offi- cials with Respondent's employees when the employees vwere again given a choice as to which union thes wanted to go with. As Respondent argues. had the agreement been effective at all times prior to December 6, there would have been no reason for giving the employees such a choice. Respondent's second argunment t is that Respondent's re- pudiation of the cimltract was in late November and thus occurred much more than 6 months prior to the filing of the charges upon which the complaint herein regarding the 8(a)(S) violation is based. Accordingl., Respondent argues that litigation of the 8(a)(5) allegation is barred by Section 10(h) of the Act. It is the position of the General Counsel that the Local 525 representative never indicated to Al Pfister that the agreement proffered to him for execution was in an) re- spect invalid. In support of that position, the General Counsel points to the testimony of Marshall McL)uffy and Tim Burns. McDuff' specifically denied ans contact with Barney I refts regarding Pfister's signing of the con- tract with I.ocal 50 or ever having given l'refts or Pfister .in, indication that any agreement executed with l.ocal 525 would be of no force or effect. With the respect to his meeting with Al Pfister and Nan- cv Pfister at the 'ownsend Restaurant, Tim Burns denied that Pfister said anything to Burns to the effect that he was signing it but that he did not expect it to have ans effect. In connection with the Respondent's 10(b) argument the General ('ounsel contends that the 10(h) period was tolled during the time that the Respondent's suit to rescind the contract was pending and that the charge was timeli filed after the suit was dismissed. e. D)i.scu.ioln an t' conclu io Section 10(b) of the Act precludes issuance of a cOm- plaint "based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the serv ice of a cops thereof upon" the charged parts'. I he lead case on the subject of Section 10(b) is I.,oal 1 odc' Nlo. 1424, In4lernaoir nl ,4so1 ci0ai/on of .lac(hlnit.is. i41' ( 10, et al. /Brvan tlultlturingrn ('o1 v. Ni.l. RB., 362 U.S. 411 (1960). In that case the Supreme ('ourt held that where conduct occurring within the limita- tiorns period can be charged to he an unt;fai labor practice onrl through reliance on an earlier unlair labor practice the use of the earlier unfair labor practice is not merels xevidentiary " but rather, it serves to cloak with illegality that event occurring within the I0l(b) period which is other- wise lawful. Thus. the C'ourt said that where a complaint based upon that earlier event is time barred, to permit the esernt itself to be used in effect results in revising a legafll} defunct unfair labor practice. In the instant case it is clear that all of the operative facts relative to the alleged 8(a)(S) violations occurred outside the IO(b) period. Respondent through the letter of tlanna on I)ecember 3. advised the Union that Respondent did not consider the collective-bargaining agreement valid and binding. There is no dispute that Respondent at no time thereafter abided b, the terms of the agreement. Aside from the dismissal of the court suit to rescind the agree- ment and ILocal 525's 'hebruarY I11, 1977. request to Re- 232 AL PFISTER TRUCK SERVICE spondent "to see that all conditions of the contract .. . are followed and brought up to date," there were no other ac- tions by any party herein relative to the 8(a)(5) allegation within the 10(b) period. There are of course, cases in the 8(a)( 5) area where each demand by a union to negotiate has been held to revive an underlying unfair labor practice on the part of the em- ?loyer who unlawfully refuses to bargain collectively on the premise that there has been a "continuing obligation" See e.g.. N. L. R. B. v. Basic Wire Products. Inc . 516 F.2d 261 (C.A. 6, 1975): VN.L.R.B. v. R. L. Sweelt Lumber (Comparni. 515 F.2d 785 (C.A. 10. 1975). Here, however, the facts do not support such theory nor does General Counsel argue one. Local 525, following dismissal of the court action, did not request renewed bargaining. but rather sought effectu- ation of the repudiated contract through its letter of Febru- ary 11, 1977. Accordingly, there is no basis for finding a continuing violation. The running of the 10(b) period mas be tolled b' fraudu- lent concealment of the facts of the unfair labor practice unless the aggrieved party is guilty of want of diligence. International Ladies Garment W orker.s Union. .4FI. (() J N.L.R.B. 463 F.2d 907 (C.A.D.C.. 1972). The 10(b) period may also be tolled even where there is no fraudulent con- cealment so long as the person adversely affected is not put on notice, actually or constructively, of the act constituting the unfair labor practice. See Wiscon.sin River Ialev Di.is- trict Council of the' United Brotherhood o( (I arpcnwtrll. and Joiners of .4 neri(a, .4 1L (10 IO (Sklipp Enterprises. Inc.1) 21 NLRB 222 (1974). In the instant case, however, there is no contention that the General Counsel and Local 525 were not aware of the facts constituting the unfair labor prac- tices relative to the 8(a)(5) allegation. Certainly all of the facts upon which the alleged unlawful refusal to bargain are based were well known to the General ( ounsel and Local 525 during the hearing of the earlier cases before Administrative Law Judge Davis in Februar' 1976. As a matter of fact. essentiall 3 all of the facts bearing on the present 8(a)(5) contention were put in evidence in the hear- ing before Administrative Law Judge Davis. Accordlingl . there can be no tolling of the 10(b) period on the 8(a)()5 allegations based on the lack of knowledge of the facts upon which the allegation is based.'" The General Counsel argues for a tolling of the 10(b) period here but cites no case actualls in point in support of his argument. Rather he asks that I compare ltai'ne Elc1, tric Inc.. and lElectric Installatiion and Servic e.s 226 NL RB 409 (1976). The case appears inapposite to the instant case. for there the respondent emplo)er had made unilateral changes which the Administrative l aw Judge found he en- forced during the 10(b) period. Thus, while the Administra- tive L.aw Judge referred to the 10(b) period as having been tolled it appears that he was actually referring to a continu- ing type of violation because of the continuing enforce- ment of changes within the lO(b) period. That is not the situation in the instant case. Rather, here, the contract \was repudiated outside of the 10(h) period. Further. the onl' employee the terms of the contract were ever applied to so I (,f J.l'r,. .. ( / m, al,,,, ( ,,i ,a11 In, 2 i NsI Ri3 L)'Q2 I1'71' far as the record shows, Knebel, was discharged in Novem- ber. The General Counsel suggests that the suit by Respon- dent in federal district court for recision of the contract tolled the 10(b) period. I find no merit to this position. It is abundantly clear that during the time the suit was pending Respondent was not abiding by the contract. The Board has previously held that pendency of a suit in a federal district court to enforce a collective-bargaining agreement does not deprive the Board of jurisdiction to consider whether the failure to abide by the collective-bargaining agreement constitutes a violation of the Act. The Crescent Bed Company, Inc.. 157 NLRB 296 (1966), enfd. 63 LRRM 2480 (C.A.D.C., 1966). The Board analyzed the situation in Crescent Bed CompanY, at 298-299 as follows: The Charging Union has pending a suit against Re- spondent [employer] under Section 301 of the Act, in which it seeks enforcement of the arbitration provi- sions of the 1963 contract. Respondent admits that the Board and the Federal district court in which the suit has been brought have concurrent jurisdiction, and that the Union may at the same time seek a statutory remedy from the Board in the form of a bargaining order, and a contractual remedy from the court, in the form of an order to arbitrate. Respondent argues, however, that the issue, basic to both proceedings, is whether there is a binding contract in effect, and that this issue should first be decided by the court, since it is the only forum which can order enforcement of the contract. We believe, on the contrary, that the Board, in remedying the statutory violation of a refusal to bargain through failing to abide by an existing con- tract, in accordance with the obligations imposed by Section 8(d) of the Act, may also order enforcement of the contract by requiring the offending party to honor the contract and assume its obligations thereunder. [footnote omitted]. Whether the Charging Union's course of conduct . . .justified Respondent in repudi- ating the contract or in considering it mutually res- cinded is a question which the Board is as competent to resolve as the court, since it underlies, and is pre- liminary to, the statutory issue of whether Section 8(a)(5) has been violated through Respondent's refusal to honor the contract.... As in (Crescent Bed Comnpatnv, supra, the issue here was, from the beginning, whether there was a binding contract in effect between the parties. T he Board was at all times as competent as the court to resolve that issue. The Charging linion here through its Counsel, immediately recognized that principle by responding to Respondent's court suit with a motion to dismiss the suit based upon the conten- tion that the Board had primarN jurisdiction. Under these circumstances. I find that Respondent's suit did not de- prive the Board of jurisdiction and that the 10(b) period was nHot tolled during the pendency of that suit. Since the Respondent clearls repudiated any obligation to hbargain wvith the tinion more than 6 months prior to the filing of the charge upon which the 8(a)(5) allegation is based, a finding of an 8(a)(5) violation based upon that repudiation is barred bh Section 10(b). N.L.R.B. v. Field & 233 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARI) Sons, Inc., 462 F.2d 748 (C.A. 1, 1972): N.L.R.B. v. I1.L. Washum, an Individual Proprietorship dh'b/a Lo.s Angeles- Yuma Freight Lines and Svennson Freight Lines, Inc., 446 F.2d 210 (C.A. 9, 1971). I so find.'9 IV RESPONDENT'S CESSATION OF BUSINESS Respondent through Counsel in an affidavit of Counsel attached to Counsel's brief stated that B. Pfister has per- mitted the operating authority given to Al Pfister 'lruck Service by the State of Illinois to lapse and the state license plates for the trucks formerly operated by Respondent to expire without having been renewed sometime subsequent to the hearing in this case. The affidavit further states that Respondent is no longer engaged in the trucking industrN and the trucks formerly operated by it have been sold or are up for sale. Respondent's counsel therefore urges that the complaint should be dismissed. The General Counsel has not objected to the affidavit attached to Respondent's brief nor has he sought permis- sion to respond to it in any way. Dismissal of the complaint based upon Respondent's af- fidavit would not appear to be appropriate. It is not open to dispute that mere discontinuance in business does not render moot issues of unfair labor practices alleged against a respondent. This is because "irrespective of the ability of Respondent to comply with the order, a decree of enforce- ment is a vindication of the public policy of the statute..." N.L.R.B. v. Electric Steam Radiator Corporation, et al., 321 F.2d 733, 738 (C.A. 6, 1963). However, the Board "will naturally not require action now impossible for Respondent to perform." N.L.R.B. *. Ephraim Haspel 228 F.2d 155, 156 (C.A. 2, 1955). Never- theless, the extent to which Respondent may not be able to comply with any affirmative remedy required herein has not been clearly established in this proceeding. Accord- ingly, ability to comply is a matter best left to the compli- I'rThis resolution of the 8(a}(5) issue makes it unnecesal'v to con,illll Respondent's other defenses as to the validity of the collectise-harg.allin agreement. Howesel. for the purposes of review. I note that I would re-l.c credibility regarding ,he events of signing of the agreement with I1.,1od $ by Al Pfister against Al Pfister and his daughter Nano. Al Pfister' tern mony as to what Barnes I refts reported to him regarding the Mt I )lft' statements is uncoirohorated hearsasv hich I find unrclablie anl d Iit t, ceptable over the denials of McDuffy whom I found to be a generalls impressive witness. I further accept Tim Burns' testimony as to what oc- curred at the Townsend Restaurant over that of Al Pfister and Nancy Plfis- ter since the testimony of the latter two does not coincide on statemlielts attributed to Burns. Al Pfister's testimony did not attribute any specific comments to Burns regarding the effectiveness of the contract, only Pfister's remarks which Burns allegedly failed to deny or rebut at the time. On the other hand. Nancy Pfister attributed to Burns a specific comment that sign- ing the agreement did not mean anything, that it was just to get the 'picket off your line." She did not testify on the point in hearing before Administra- live Law Judge Davis. Nancy Pfister's testimony regarding the meeting wa: highly selective, only the one statement of Burns was recalled. This testi mony is too selective to be reliable absent corroboration. Based both on demeanor and the selectiveness of her recollection I do not credit Nancs Pfister. Burns in demeanor impressed me as being a sincere witness I ur- thermore, there appears to be no "quid pro quo" which would in any wais serve as an inducement to Local 525 to enter into a void, invalid, T shamn agreement. While Pfister may have "understood" or thought that the I ocal 525 contract was not to be valid or enforced, I find that nothing Burns or McDuffy said to Pfister was a basis for that conclusion. ance stage where all details regarding any discontinuance of business and its effects mas best be ascertained. v I t I. F I('I () I11 I Ni AIR IAHBOR PRA(CI (CES U PON ( (OMMiR( F tIhe activities of Respondent set forth above, occurring in connection with Respondent's operation described in section 1, above, have a close and intimate 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. Si tilt- RI MiFD5 It having been found that Respondent has engaged in and is engaging in certain unfair labor practices. I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. I found that Respondent discharged Dennis Knebel, for reasons which offended Section 8(a)(4), (3), and (1) of the Act. I shall therefore recommend that Respondent offer Knebel immediate and full reinstatement to his former job or. if such job no longer exists to a substantially equivalent job. without prejudice to his seniority or other rights, privi- leges or working conditions, and make him whole for any loss of earnings suffered b5 reason of the discrimination against him as found herein, to the date of Respondent's offers to reinstate him less his net earnings during that pe- riod in accordance with the Board's formula set forth in I IV'. toolwor/th Company, 90 NLRB 289 (1950). with in- tIcrest thereon at the rate of 7 percent per annum as set forth in Floria Steel (Corporation, 231 NlRB 651 (1977). Hasving found that Respondent entered into a collective- hbargaining agreement with Local 50 at a time when that Ilnion did not represent ai majority of the employees in the appropriate unit, Respondent violated Section 8(a)(2} of the Act. I shall recommend that Respondent withdraw and withhold recognition of Ilocal 50 and cease giving any ef- fect to its agreement with that Union. While the deduction of dues amounted to unlawful assistance to Local 50, I do not find that dues reimbursement would be appropriate unlcler the circumtistalces of this c ase. TIhe employees for whom the dues were deducted were longtime members of I.ocal 50, and were not coerced into joining Local 50 through Respondent's action. Further, while there were no wiitten authorizations for such deductions there is evi- dence in the record which indicates that the dues deduc- tions inay have been pursuant to requests by some of those employees from whom dues were deducted. Hlaving found that Respondent independently violated Section 8(a)( I) of the Act through 'arious acts and conduct outlined herein, and since such violations are of a character striking at the root of emplosee rights guaranteed b,, the Act, it would he recommended that Respondent be or- Clerecd to cease and desist from infringing in any manner on the rights guaranteed in Section 7 of the Act. Rrad's Ma- chiine Products. In<., 191 NLR B 274 (1971). IThe extent to which Respondent should be required to conpinl with the affirmiltaise provisions of this recom- nietided order. including the hackpas provisions and the 234 AL PFISTER TRUCK SERVICE backpay period may be determined at subsequent hearings if necessary. See Perma Vin l Corporation. supra. Upon the basis of the foregoing findings of fact and con- clusions and upon the entire record in this case. I hereby make the following: CON(T .I SIONS OF LAW 1. The Respondent, Al Pfister d/b/a Al Pfister Truck Service and Bernice Pfister, successor to Al Pfister and exe- cutrix of the will of Al Pfister, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 525 and Local 50 are labor organizations within the meaning of the Act. 3. Bernice Pfister at all times material was, and is, a supervisor and agent of Respondent within the meaning of Section 2(11) and (13) of the Act. 4. By interfering with, restraining, and coercing employ- ees in exercise of the rights guaranteed in Section 7 of the Act as set forth herein Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(l) of the Act. 5. By recognizing Local 50 and by executing a collec- tive-bargaining agreement with that Union, and by deduct- ing dues from employees for that Union at a time when that labor organization did not represent a majority of its employees in an appropriate unit Respondent has assisted and supported a labor organization, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) and Section 2(6) and (7) of the Act. 6. By discharging Dennis Knebel on November 25, 1975, Respondent violated Section 8(a)(4), (3), and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. 8. Respondent has not refused to bargain with Local 525 in violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law. and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended. I hereby issue the following recommended: ORDER 20 The Respondent, Al Pfister, d/b/a Al Pfister Truck Ser- vice and Bernice Pfister, successor to Al Pfister and execu- trix of the will of Al Pfister, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union interests and activities and those of other employees in a 2) In the event no exceptions are filed as prosided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations. he adopted by the Board and become its findings, conclusions. and order and all objections thereto shall he deemed waived for all purposes. manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (b) Creating among its employees the impression that their union activities are under surveillance. (c) Threatening employees with discharge or other repri- sals for engaging in activities on behalf of Chauffeurs, Teamsters. Warehousemen and Helpers Local Union No. 525. affiliated with the International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America or any other labor organizations, or for exercising their Section 7 rights. (d) Threatening to close or move the business if the em- ployees select Chauffeurs, Teamsters, Warehousemen and Helpers of America. Local No. 525, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America to represent them. (e) Suggesting, encouraging, assisting or supporting the circulation of a union shop deauthorization petition among its employees. (f) Threatening its employees that going to the Board would cause hard feelings. (g) Suggesting to its employees in derogation of their se- lection of Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America that the employees might join a Congress of Independent Unions. (h) Assisting or supporting Teamsters, Chauffeurs. and Helpers Local Union No. 50, affiliated with International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, by recognizing or contracting with that labor organization or any successor thereto as a representative of any of its employees for the purposes of collective bargaining unless such labor organization has been certified by National Labor Relations Board as the exclusive bargaining representative of such employees. (i) Assisting or supporting Chauffeurs, Teamsters, Warehousemen and Helpers, Local 50, by deducting dues from employees for such labor organization without writ- ten authorization from the employees and at a time when that labor organization does not represent the majority of Respondent's employees in an appropriate unit. 0) Giving effect to, operating under, or in any way, en- forcing its collective-bargaining agreement, arrangement or understanding. entered into on August 1, 1975 with Team- sters. Chauffeurs, and Helpers Local Union No. 50, affili- ated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any modifications, extensions or renewals thereof, unless said labor organization shall be certified by the Board as the exclusive representative of Respondent's employees. (k) Discouraging membership in, or activities in behalf of Chauffeurs. Teamsters, Warehousemen and Helpers, Local Union No. 525, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discriminatorily discharging or laying off employees or by discriminating against them in any other manner with re- spect to their hire or tenure of employment or any term or condition of employment. (1) Discharging or otherwise discriminating against em- 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees because they have been involved in charges filed with the Board under the Act. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Dennis Knebel immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the unlawful discrimination against him, in the manner set forth in the section of the Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and reports and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Withdraw and withhold any recognition from Team- sters, Chauffeurs, and Helpers, Local Union No. 50, affili- ated with International Brotherhood of Teamsters, (hauf- feurs, Warehousemen and Helpers of America, as the representative of its employees for the purposes of collec- tive-bargaining, unless and until said labor organization has been duly certified by the Board as the exclusive repre- sentative of its employees. (d) Post at its premises in St. Jacobs, Illinois, place of business, copies of the attached notice marked "Appen- dix." 21 Copies of the notice on forms provided by the Re- gional Director for Region 14. after being duly signed by the Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps hall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is FtIIRIHFR ORI)FRI[ that as to allegations of the com- plaint not specifically found to have been violations of the Act herein be dismissed. 2' In the event that this Order Is enforced hb a Judgnicnr of the I nllcd States (Court of Appeals, the "oerds in the nolice reading "Posled hb Order of the Nationall lhabor Relatllns Board" shall read "Posted Pursualnt it a ludglient of1 the I nited States ( ourl of \ppca.l eniforcing an Order of the National L.abhr Relatins Board" 236