Tracon, Inc.

TRACON, INC Tracon, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 654, af- filiated with the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Help- ers of America. Case 9-CA-5373 June 30, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On April 23, 1970, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In agreeing with the Trial Examiner's finding that Respondent did not violate Section 8 (a)(3) and (I) of the Act by its discharge of employees Fred Stayton, Dale Cassell , and Bruce Cassell, we place no reliance on the Trial Examiner's finding , based on excluded testimony, that sometime after said discharges Respondent terminated another employee for refusing to work overtime TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: In this proceeding, the General Counsel of the National 184 NLRB No. 18 147 Labor Relations Board (herein called the General Counsel and the Board, respectively) issued a com- plaint' alleging that Tracon, Inc. (herein referred to as Respondent and/or Company), had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act). In relevant part the answer to the complaint admitted some of its allegations, denied others, and pleaded affirma- tively. In effect it denied the commission of any un- fair labor practices. Pursuant to notice, a hearing was held before me at Springfield, Ohio, on March 10, 1970. All parties were afforded full opportunity to call, examine, and cross-examine witnesses, to argue orally, and thereafter to submit briefs. Help- ful briefs were filed by the parties, which have been carefully considered. Upon the entire record' in the case, including my evaluation of the reliability of the witnesses based on my observation of their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is an Indiana corporation engaged in the business of a gear packaging and warehouse dis- tribution operation located in Fort Wayne, Indiana, and a rail loading operation in Springfield, Ohio. Respondent's main offices are located at 2323 Bowser Avenue, Fort Wayne, Indiana, as are also the main offices of Wayne Warehousing & Cartage, Inc., hereinafter referred to as Wayne. Wayne is an Indiana corporation engaged in the business of commercial and residential intrastate and interstate cartage and in the operation of a rail service, similar to the one operated by Respondent Tracon, located in Fort Wayne, Indiana. Wayne and Respondent share the same main offices in Fort Wayne. The two companies have the same corporate offices and the same majority stockhold- ers. Both firms have the same treasurers and ac- countants. Mr. Willard King, is the vice president of both firms charged with the responsibility insofar as ' The complaint was issued on December 2, 1969 The charge initiating the proceeding was filed on October 14, 1969 An amended charge was filed on November 21, 1969 At the hearing the General Counsel moved to amend sec 2(c) and (d) of the complaint The Respondent objected to the amendments of 2(c ) and 2 ( d) because Respondent claimed he was not notified of the proposed amendment until less than a week before the com- mencement of the hearing Respondent claimed that the alleged amend- ments constitute a substantial change in the nature of the charge and the evidence required in order to establish lack of jurisdiction Jurisdiction is an important issue in this case Respondent 's objection to the amendment was overruled The motion to amend was granted 2 On April 1, 1970, the General Counsel filed a motion to correct the record The said motion is directed to certain obvious changes in dates in conformity with the complaint The General Counsel's motion to make typographical corrections in the record is hereby granted , including changes in the spelling of the names of the alleged discrimmatees 148 DECISIONS OF NATIONAL the Respondent is concerned to cover Respondent's entire operation including the Springfield rail operation. His duties as to Wayne include the purchasing of equipment, acting as corporate secre- tary, and overseeing the operations of the rail, cartage, and household moving divisions. Mr. R. D. Pickerill, president of both firms, ac- cording to the testimony of King, is in charge of the general overall operation of both firms. Mr Hol- lopeter is treasurer of both firms. Thus, although both firms are separate corporate entities as far as the State of Indiana is concerned, they are not two separate corporations for the jurisdictional pur- poses of the Act. Both firms operate a rail division and Mr King is in charge of labor relations of both divisions, with Pickerill overseeing the operations of both compa- nies. The operations are integrated to the extent that Respondent uses Wayne's warehouse in Fort Wayne, and Wayne operates a rail service similar to the Respondent's which is located in Springfield. It is clear from Willard King's testimony that all deci- sions of Larry King are reached with the guidance and counsel of the officers of Respondent, who are also Wayne's officers. It would therefore seem that Wayne and Respondent are under one common control and are affiliated businesses, and they con- stitute a single integrated operation. These facts are gone into in this detail because the Respondent de- nied certain allegations in the complaint which are fashioned in such a manner as to indicate that the General Counsel regards the businesses described, supra, as affiliated businesses and as a single in- tegrated enterprise. However, irrespective of the testimony in the record with respect to the over- lapping and integrated operations of the two com- panies, it is clear that the Respondent alone meets the jurisdictional standards of the Board. All revenues received by Respondent from the Spring- field, Ohio, rail operation are paid by International Harvester Company and the Erie Lackawanna Rail- way. Respondent received gross revenues from these two firms for the period from August 8, 1969, to December 27, 1969, of $31, 634.65. For the months of January and February 1970, Respondent received gross revenues from the same above- named firms of $11,414.12 and $20,419.01, respectively. Thus Respondent for its period of operation from August 8, 1969, to the end of February 1970, has received gross revenues of $63,467.78. In view of the fact that Respondent operates as a link in commerce for International Harvester and Erie Lackawanna Railway it has received gross revenues in excess of $50,000 from said firms, both of which would meet the jurisdic- LABOR RELATIONS BOARD tional standards of the Board and thus Respondent, by its operations, meets the jurisdictional require- ments of the Act and is properly before the Board. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNIONS Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 654, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and the International Association of Machinists, AFL- CIO, are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Chronology Respondent began its operations in Springfield, Ohio, on or about August 8. Two days prior to the Company's commencing operations in Springfield the Respondent's agent, Pickerill, and Willard King visited the offices of the Teamsters Union. This visit was initiated by the Respondent. Pickerill and King met with Teamsters agents Williams and Feltes and informed the union representatives that Tracon expected to operate a cartage business similar in nature to the one they operate at Fort Wayne It was explained that the new company, Tracon,"would begin operations on or about August 8, 1969.3 It was further explained to the Union that Wayne had been functioning for a number of years under a contract with the Team- sters Union in Fort Wayne. Relations between Wayne and the Union have always been amicable. The meeting lasted about 1-1/2 hours and the parties broke off their discussion after some generalized conversation concerning the kind of contract that the parties might eventually agree on. Tracon's officials left the Teamsters office with the remark that Tracon would be in touch with the Union. Sometime later, on or about August 15, Willard King called a meeting of the four employees who were working for Tracon, Sanders (an employee described by the General Counsel as a supervisor but by the Respondent as a sort of leadman) and Willard King's son, Larry. King explained to the men that it was expected they would join a union and he further went on to say that in his opinion the best union the men would be able to join would be the Machinist's Union. It is clear in the record that King employed no coercive language and that he ' All dates refer to 1969 unless otherwise indicated TRACON, made it clear to his employees that whatever deci- sions they finally reached with respect to unioniza- tion was for them to decide. Willard king further stated that he felt in his opinion the Machinist's Union would be better for the Company from the standpoint of building more business in the future. Apparently, in a conversation that Willard King had with an official of the International Harvester Com- pany on business matters, the subject of union came up. In the course of this conversation, Baker, the company official, made some comments to the effect that it would probably be better business for both Tracon and International Harvester if the em- ployees at Tracon joined the Machinist's Union since that was the union which represented the In- ternational Harvester employees. It should be emphasized at this point that Willard King made it clear to the employees that the choice as to which union they finally decided to join was up to them to decide. Subsequently, the four employees con- tracted the Machinist's Union and all of them signed cards designating the International Associa- tion of Machinists as their bargaining agent. James M. Feltes, who is the secretary-treasurer of the Teamsters Union, corroborated substantially the testimony given by Willard King with respect to the meeting that took place among King, Pickerill, Williams, and Feltes. Feltes amplified the informa- tion provided by Willard King and stated that the parties present at this meeting also discussed con- tracts, wages, hours of work, and fringe benefits. Feltes further explained that he understood the pur- pose of the visit that was made by Willard King and Pickerill was an attempt to negotiate an agreement. After the initial contract, which took place on Au- gust 6, no further meetings were held by Tracon and the Teamster Union. Sometime thereafter on September 17 the Teamster Union filed a petition for representation with the NLRB, Case 9-RC-8299, in which they requested bargaining rights for a unit consisting of production, main- tenance and general yard employees, truck drivers and loaders excluding office employees, guards, su- pervisors and all others excluded under the Act. Parenthetically, it should be stated that action on the Teamsters petition appears to have been held in abeyance pending the issuance of the decision in the instant case. The General Counsel in his brief states, inter alia, as follows: At this meeting, King explained to the men that they had to have a union, and that he had looked around and found the best union for them. He went on to say that the Machinist's Union was the best bet for men and the com- pany and that all men should join up with this INC. 149 union, especially since it also represented In- ternational Harvester. Thereafter, King inter- rogated each of the employees as to how they felt about the Machinist's Union and the Teamster Union. He again told the employees that he felt that the Machinist's was the best union from the company point of view and that the Teamster's weren't for them. King then handed out badges, pins and insignia of the Machinist's Union, and distributed Machinist literature. It is to be noted that when one of the alleged 8(a)(3)'s Dale Cassell, was testifying the record shows the following questions and answers concern- ing the above described meeting: A. We were called into the office of Mr. Larry King's office-they had a driver side of the trailer and business side of the trailer. We weren't allowed in the business side un- less we were called in for some reason. So we were called in, and Larry and Mr. Rex King (Willard) were sitting in the office. Q. Who is this you refer to? A. Oh, that is Fred Staton, Charlie McCoy, Bruce Castle, myself and Howard wasn't hired yet. Q. And what happened? A. And we sat down there and we just started talking about different unions. And nobody really said much of anything. Mr. King sort of directed the business, Larry sort of sat in the background and listened, like everybody else sort of listened. Mr. King, Mr. Rex King never really said we had to join the Machinists, be he said it was a good idea. Said, If we had more ties with International Harvester, we might get more trucks. Mr. Baker is president of IAM, he runs the lot over at International Harvester, so we might have more ties that way to get more trucks. Then after that, there was an open discus- sion, really. And Sanders, I think, he didn't really care, he is a Company-minded man. He didn't care about nothing, just hisself. As long as he was all right, he didn't care about the other guy. He thought unions were com- munistic ways. And Charlie, he was all IAM man, you know, he got-he said he got screwed by the Teamsters before and he didn't want it to happen again. That is why he kept blowing around about that all the time. And the rest of the guys, Fred, he wanted to go to the Teamsters, but he was outnumbered really, because Bruce and I didn't know anything about union. I guess our civics 427-835 0 - 74 - 11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teacher sort of failed on us there in high school. Q. Do you remember anything else that happened at this meeting; do you remember Mr. King having any conversations with Mr. Sanders? A. No, I don 't believe there was anything else said. Q. In regard to the IAM Machinists ' Union, IAM you refer to it , what if anything happened after this meeting with Mr. King? A. We had a meeting on the drivers' side, and we were asked to sign some Machinists' cards. TRIAL EXAMINER : Who asked you to sign them? THE WITNESS : Jack Sanders. And he handed out the cards and we signed them and gave them back to him . And he gave them to Baker, and then after that it was around that time, I don't know , give or take a few days and we had an election for Union steward. And there were three guys running, there was Charlie McCoy and Jack-not Jack Staton , Howard Self and Fred Staton. And Charlie McCoy voted for himself and Jack Sanders voted for Self-not for Self , I mean for McCoy. Then Bruce and I and Fred voted for Howard , and Howard voted for Fred. Q. (By Mr. Muir ) What happened after this with the Machinists' Union? A. Well, we went down to-we were sup- posed to go down one night before, but Bruce and I coundn 't make it. Then a couple of weeks later we went down to the Machinists hall and we met with this Mr. Boggs, who was representative of the Machinists' Union. And he just sort of-he said he was going on vaca- tion, I don 't know, didn 't have much time to talk to us about it, and just sort of ran over the thing, you know. Nobody was satisfied about anything, so we just left. TRIAL EXAMINER : Ran over what things; a piece of paper or a book , or what? THE WITNESS : That is about what it is, I mean how much we were paid and your benefits , your retirement , your retirement plans. Q. (By Mr Muir) What happened after that ; what happened during this discussion with Mr. Boggs? A. Well, I can't exactly recall, except he just talked about the thing-the contract we were drawing up with the Company between the Union and the Company Q. What then happened? A. Oh, we went down to see the Teamsters, Teamsters ' Union , and signed Teamsters' cards. 0. Do you remember about when that was? A. It was about , oh, a week or so later, I can't really remember when. Q. Do you remember what day you signed the card for the Teamsters? A. Not exactly, no. But I know on the same day that we were going down there to see them , Mr. Rex King came in the driver's side and had insurance bonds in his hand, and he said , " I am trying to pick out the best in- surance plan for you and everything that would best suit you." We didn 't really pay much attention to him anyway, because we were going down to the Teamsters that night to talk to the Teamster's representative. On cross-examination conducted by the Team- sters attorney the following colloquy took place: Q. (By Mr . Logothetis ) You testified that you Rex King had a meeting some time in Au- gust with the employees . Now was the IAM the only union that was discussed in that meeting? A. No. Q. What other unions were discussed? A. The IAM and the Teamsters , principally. Q. Why is it only those two unions came up, the names of those two unions? A. Because that is it. Q. Had you at any time had any contact with the Machinists , prior to that meeting? A. Not to my knowledge. Q. Well, did you testify on direct examina- tion , Mr. King, that you told the employees that your recommendation would have been the IAM in that meeting; that they would have been better off with the IAM in this locality? A. Not my recommendation , my viewpoint. Q. If you had no contact with the [AM prior to that meeting , what did you base your view- point on? A. Our knowledge of, I should say basically in my own viewpoint, and what knowledge I had of the unions involved. Q. On the local in this locality, or generally? A. In this locality; I am sorry. Q. But you say you had had no contact with the local unions here, at least with the IAM') A. Well, no direct contact . But I am perhaps knowledgeable about the different unions and what they represented. Q. Like what ? I mean what do you mean by that ; can you elaborate at all') A Well, I think my only elaboration there TRACON, would be the fact that checking with the Team- sters' local, our early visit to them, they were on a national level. And the Machinists were more or less on a local level. Q. What do you mean by that, by the rate that they were- A. Pay scale. Q. So really your basis for that recommen- dation was that the Teamsters were asking and you anticipated they would be asking a higher rate than the Machinists would, isn't that true? A. No, I thought the local representation might be more advantageous to them. And as the Employer, dealing directly with Interna- tional Harvester, the viewpoint is somewhat appreciated in this period of my own of as- sociation for a group who are representing In- ternational Harvester people. This might help our new business to grow. 0. And you told the employees that, didn't you, in that meeting? A. In generalities, yes Q You did mention International Har- vester, didn't you, in that meeting? A. I believe so, yes. Q. You did mention that it might be more helpful to the Company with regard to their business , didn't you? A. Yes. Q. Now is it also your testimony that when Boggs called you at a subsequent time and made the demand for recognition, that you had never gotten a demand before, before that telephone conversation? A. If I remember correctly, the telephone conversation was not with Mr. Boggs. Q. Oh. A. It was with Mr. Baker. Q. Oh. A. This came about as a contact with Inter- national Harvester, in the course of a normal day's business. Q. As a contact through International Har- vester. Who made the contact; International Harvester? A. Yes, we were talking on the phone about International Harvester business. Q. Who was, you and who? A. Myself and Mr. Baker. Q. Did you call Baker, or did he call you? A. I don't recall. Q. Well, how did you happen to be talking to Baker? A. Mr. Baker is in charge of shipping trucks out of the International Harvester truck sales processing center. And this was in the course INC. 151 of the call regarding some trucks he had to ship, and I can't recall the exact circumstances. Q. The discussion of a union came up between you and Mr. Baker? A. If I recall correctly, after the discussion of the trucks was finished, it was mentioned to me they would like to talk to our people re- garding the Machinists' Union I said, "I have no objection to this Q. Is the man who called you and identified himself as being an individual named Boggs-he told you he was a representative of the Interna- tional Association of Machinists, is that cor- rect? A. Right. Q. And he at that time told you that he represented the majority of your employees over the telephone? A. No. I am not-the call from Mr. Boggs, if I remember correctly, was after the men had signed the cards and they had been turned in to the Machinists' Union. Q. How did you know they had been turned in to the Machinists' Union) Q. Did you testify on direct examination that you received a call from a representative of the Machinists named Boggs, and that it was after that telephone call that you recognized them as the bargaining agent? A. I would answer that as being correct, yes. Q. Correct. Now, would you please tell us what was said in that telephone conversation? A. That they had the men signed up, we recognized them as the bargaining agent, could he come out and get a form signed agreeing to this, would I be there. And I said, "Yes." Q. When did you tell him that you would recognize him? A. At the time Mr. Boggs brought the form out to be signed. Thereafter, Rex King, while he was not certain, said he could not recall whether he had ever looked at the signed application cards himself in order to check the majority representation of the Machin- ists B The Alleged Discriminatory Layoffs The layoff of Self, Stayton, Bruce, and Dale Cas- sell will be treated together because, for the most part, the facts and circumstances concerning their layoff had many elements in common. The record shows that until September 11 the 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company presumed that its employees were represented by the International Association of Machinists. On that date the Company had been in business in Springfield for about 6 weeks and had been losing money. In view of the fact that business had been getting steadily worse Larry King, on Sep- tember 10, decided that it would be necessary to layoff two employees. Howard Self was the last man hired and the next employee with the least seniority to Self was Bruce Cassell. King prepared notices on the morning of September 11 for these two in- dividuals advising them that they would be laid off effective September 15 During the same day, September 11, sometime in the afternoon King received a telephone call from a man named Carson Williams, a representative of Teamsters Local 654. According to the testimony in the record King said that Williams spoke so rapidly that he, King, had difficulty understanding what Williams was saying. However, he did hear Williams say he was talking about the Teamsters and making some kind of a demand but beyond this King said he could not make out what Williams was talking about Thereafter, when the call to Williams had been completed, Larry King called Howard Self into the office and inquired of him as to why the Teamsters Union would have occasion to call him. As ex- plained by King, Self had been selected as the em- ployee to whom such a question should be ad- dressed because Self had been chosen by the em- ployees as their union steward for negotiating pur- poses in connection with the Machinists Union. Ac- cording to Self he told King that some of the men had decided they would rather be represented by the Teamsters than the Machinists . Self testified that he told King the names of the employees who had signed Teamsters cards At the end of that work day, September 11, King gave the layoff notices to Self and to Cassell. Approximately a week later Tracon's business picked up and as a consequence King telephoned Bruce Cassell and invited him to return to work. Bruce Cassell did come back to work, worked one day, missed the next day, and then returned and worked full time for approximately 3 weeks until he was discharged on October 2. When Self came in to pick up his check, after being laid off, he was told that the Company did not have any work for him at that time but that he would be called if work became available. King testified that Self told him that he (Self) could be reached at the telephone number shown on the Company's records which number happened to be that of Self's mother-in-law. Larry King testified that when Bruce Cassell was recalled to work because of the Company's increased business King tried also to reach Self at the telephone number given him but there was no answer to his call. He thereafter tried again at that number during the first part of October and was advised by the telephone operator that the telephone number was no longer in service. As has been stated, supra, the Teamsters Union Local 654 filed a petition with the NLRB for cer- tification as the representative of the employees of Tracon. Tracon received the usual notification of the filing of this petition from the NLRB but never received any written demand for recognition from the Teamsters. It should be noted that the record contains a copy of a letter received by Tracon and sent to it by the Machinists Union advising the Company that the Union had turned over their cards to the Teamsters Union and stating unequivo- cally that the Machinists did not represent the em- ployees of Tracon any longer. On or about October 1 Respondent found itself behind schedule on a large amount of work, a development which came about as the result of the fact that at that time there was a possibility of a railroad strike. Respondent did not hire on any ad- ditional employees until about October 1. After Tracon made its second unsuccessful attempt to reach Self on the telephone King hired on two other workers on a temporary basis named James Westbend and Tim Thompson each of whom worked at various times for the Company on the 1st, 2d, and 3d of October. It is significant that Westbend was not only a member of the Teamsters Union but this fact was known to King at the time he hired Westbend. On the afternoon of October 1 Larry King and his father, Rex King, discussed the fact that it would be necessary to work overtime on the follow- ing day because of the accumulation of a rush of business that developed as the result of the possi- bility of a threatened railroad strike. Larry King went out into the yard to advise the men that over- time would be require the next day. According to King he not only advised the Cassell brothers and Stayton that they would be needed for overtime work on the followwing day but King further stated that they, along with certain other employees agreed that they would stay and perform the neces- sary work. There is a conflict in the testimony on this point but it is not significant in the light of the further developments which will be described infra. About 4 o'clock , which was the normal quitting time, on October 2, the employees were all con- tinuing to work with the exception of Stayton and the two Cassell brothers who went into the office to punch out. Larry King testified that he had a con- TRACON, INC. 153 versation with them and told them that he expected them to work . While there is some information in the record that is not altogether clear as to what was said during the course of this conversation it does seem clear , and all the witnesses testified, that Larry King told these employees that he needed them to work overtime . It is equally clear that they refused to work overtime whereupon King told them they were discharged. The record shows that at the time of the discharges King was unaware as to whom among Respondent 's employees were active on behalf of the Teamsters Union and King did testify that the knowledge or ignorance of this fact had nothing to do with the reason for the discharge of the men. King testified unequivocally that the sole reason for firing them was due to their refusal to work over- time. Larry King further testified that after these employees left the premises , about 4 o'clock, the remaining work force including King found it necessary to continue working until after dark and stopped only then because the light had failed. On the following day the entire work crew including Larry King put in 14 hours of work in an effort to get caught up with what had accumulated. As the result of the very long hours expended on October 2 and October 3, by the end of the day on October 3, most of the extra work had been done. After their discharge the three employees in- volved left the company premises on October 2 and repaired to the home of Howard Self. They told him that they had been fired for refusing to work overtime . It is significant to note that the testimony on the record does not show that in the course of this conversation with Self or with any other em- ployee that the three dischargees made any state- ments that they considered they had been fired because of their Teamsters activities . On the fol- lowing night , Self called Larry King and told him that he knew that some men had been discharged and asked if he could come back to work . King said he had no work for him . King also testified somewhat incredibly that after watching the two newly hired employees perform on the job he felt that they were much better workers than Self. This was one of the reasons why he did not call Self back to work at a later date . The fact that Self worked almost 6 weeks and the new employees only 2 days makes it a little difficult to understand how Larry King could say that he had observed in 2 days that the new men were more efficient than Self. Whatever significance this may have it should be remarked that at the time King spoke to Self there was no work for him to do . It is also signifi- cant that Self did not give King his address or any new telephone number or any other means by which he could be reached . Thereafter when the Company made an attempt to call Self on two occa- sions they were unable to reach him on the telephone . When they mailed him his W-2 forms to the last known address of which the Company had a record this letter was returned by the post office as not being deliverable. The General Counsel seeks to make much of the fact that on September 12 an argument arose among Supervisor Sanders and employees Self, Stayton, and the Cassell brothers. Allegedly this dispute arose because Sanders was constantly "bugging" the men for becoming members of the Teamsters Union. The contention of the General Counsel that Sanders was constantly harassing the men appears to be true from the evidence in the record but it is not at all clear that he was keeping after them because they had joined the Teamsters Union . To the contrary the record seems to in- dicate that Sanders was sharply disliked by the three employees and he reciprocated the feelings of the men . Nowhere in the record is there support for the conclusion that the motivation for his distaste for these employees arose because of the fact that they had decided to join the Teamsters Union. San- ders personally had no use for the Teamsters. His remarks, if they had been motivated by animus against the Teamsters, might represent a violation of Section 8(a)(1) of the Act. However, it seems clear to me that Sanders got along badly with the men who worked under him, that he did not in fact like labor unions in general , but that his difficulties with the men came about as a matter of personality conflicts and were not related to the fact that the men were members of a union which he disliked. It should be further remarked that in this small plant situation where only a handful of employees were working under the tutelage of Sanders there was admittedly a certain amount of friction among the men. However the record does not support the con- tention advanced by the General Counsel that the reason for Sanders' friction with the men had its genesis from Sanders' admitted hostility directed against the Teamsters Union. Elsewhere in the record there appears information which supports the conclusion that Sanders entertained his poor opinion of the Teamsters , not because the members of the Teamsters Union employed by Respondent were themselves members of the Union but because Sanders had had a bad personal experience with the Teamsters in another context and while he was em- ployed elsewhere. The record contains another reference to a con- versation allegedly held by Larry King with Dale Cassell . There is testimony in the record that Larry King asked Cassell if he had heard anything about the Teamsters. Cassell said, "No" and in response to this negative answer Larry King said, "Well what is the problem-do you need more money7" Cassell said, "Yes," he needed more money but that in ad- 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dition to money there were other benefits which could be secured through representation by the Teamsters. In my opinion this remark by Larry King represents small talk and in the context in which it developed it seems clear that Larry King was not speaking in a derogatory way about the Teamsters nor was he interrogating Cassell on this point in an effort to ascertain special information peculiarly within the possession of Cassell because of his membership in the Union. C. Supervisory Status of Jack Sanders It is contended by the General Counsel that the record shows that Jack Sanders had authority to give orders, to direct the work of others, and to discipline the employees. Furthermore, he was paid at a higher rate than the other employees, he was responsible for the training of new employees, and he spent much of his time in an office away from the work of the employees. From these facts it seems clear that Sanders had the authority to speak for the Respondent, to issue orders and instructions to the employees, to check on the kind of job being performed by the employees, and thus responsibly to direct them. It was not disputed by the Respon- dent that Sanders was exercising the conventional kind of authority which, under Section 2(1 1) of the Act, constitutes him a supervisor within the mean- ing of the Act. D. Credibility of the Witnesses While there are some variances in the testimony of the several witnesses none of these minor con- flicts are sufficiently serious to warrant extended discussion or analysis. For the most part the wit- nesses impressed me favorably and their demeanor was such as to convince me that they were testify- ing truthfully. More importantly, the fact became clear from the evidence that in its essentials the testimony of all the witnesses ran pretty much along parallel lines. E. Concluded Findings and Analysis One of the contentions advanced by the General Counsel to which he seemed to attach particular significance was the fact that prior to the date when the employees who are the subject matter of the 8(a)(3) allegations in the complaint were discharged for their refusal to work overtime the Company had never had previous occasion to require people to work overtime. On subsequent occasions after October 2 the Company did require people to work overtime, and all employees com- plied with this request with the exception of Charles McCoy. During the early part of January 1970, Charles McCoy, who was known to Larry King to be opposed to the Teamsters Union, was requested to work overtime, refused to do so, and was discharged by King. There had been no other occasions when employees have refused to work overtime after being requested so to do. In this con- nection it is important to note that at the outset of the commencement of the Company's activities in Springfield, Ohio, they started with only four em- ployees. In the beginning business was not particu- larly good and consequently there was no need to request employees to work overtime . It is not disputed in the record that when the employees were discharged for refusing to work overtime this was the first occasion that such a request had ever been made of them. The composite of these facts negates any inference that the Company requested overtime in order to lay a ground work for the discharge of any employees who refuse to comply with such an order. The essential basic issue in this case boils down to the question as to whether or not Larry King fired the three employees on October 2 because of their activities on behalf of the Teamsters Union or because they refused to work overtime. If the discharges were bottomed on their refusal to do the work they were instructed to perform then it is clear that the Company is not guilty of a violation of the National Labor Relations Act. The prohibi- tion of Section 8(a)(3) is limited to discrimination which is intended to "encourage or discourage membership in any labor organization." See Her- man Mohland v. N.L.R.B., 422 F.2d 1258 (C.A. 9); as stated by the court in the case cited, supra, this circuit court also stated in N.L.R.B. v. Isis Plumbing & Heating Co., 322 F.2d 913, 922 (C. A. 9): [A]n employer may discharge an employee for good cause, for bad cause, or no cause at all, unless the real motivating purpose is to do that which Section 8(a)(3) of the Act forbids. Thus it becomes important to evaluate what oc- curred in the instant case to ascertain if there is either direct evidence of an illegal motive on the part of Respondent or if one is to be based on an inference of hostility to the Union, or if there was no real, substantial, or reasonable basis for Respon- dent's actions. Respondent argues persuasively that entirely con- trary to a showing of hostility or antagonism to the Teamsters Union the Company had itself made an initial contact with that Union and suggested that its representatives contact future employees for the purpose of representing the Company's employees It should be further noted that the same individuals TRACON, who own and operate Tracon also own and operate Wayne Warehousing, Inc., a Fort Wayne, Indiana, company where they have voluntarily recognized the Teamsters Union and have had good bargaining relations with that Union for some years. The Respondent argues in his brief that the fact and circumstances surrounding the actual discharge of the three employees came about as follows: Larry King testified that he advised each em- ployee on October 1 that they would have to work the next day. This testimony was sup- ported by Rex King, but is denied by the three employees who were fired . Nevertheless, there is no dispute that on October 2, Larry King asked each employee to continue working, that they refused to do so, and that it was for this reason that he fired them. The testimony of Dale Cassell very strongly favors the Respon- dent: Q. Mr. Cassell, were you employed on Oc- tober 2, 1969? A. Yes, sir. Q. What happened that day? A. We were out loading railroad cars all day, and Jack Sanders came in about 10 o'- clock that day and it came time to quit, and we went in and punched out and washed our hands. And then Larry come [sic] in and asked us if we wanted to work overtime. We said no, we did not, we had other plans made already. 0. What were those plans? A. Myself and my brother, we had to go pick up a car for my day and take his truck back to the place where he works so he could get home. And we had plans-we were in high school, we had some kind of a meeting there to take care of Q. What then happened? A. Well, we refused to work overtime because it hadn't been scheduled. And we told him we were going to leave. And he said, "Now you are hurting Tracon, you are hurting me." And we said, "Well, we got to leave." So we left-I mean before we left he said, well, wait a minute, you are fired. And he fired us right there on the spot. The Company further contends that the reasons given by the three employees to explain their refusal to work do not appear substantial. The two Cassell brothers said that they had "personal business " and that they "had to get a truck" and for that reason could not stay and work. Fred Stayton complained that he did not feel good and could not work for that reason. Still, although these three men had such pressing business and infirmi- ties, they nevertheless proceeded from the Em- INC. 155 ployer's place of business to the home of Howard Self where they engaged in a conference. If the reasons given for refusing to work were not con- trived, they were at best frivolous, and this must must have been apparent to Larry King. Under such circumstances his firing of them is un- derstandable . It is further argued in support of the Respondent's position that the testimony substan- tiates the Company's need for the employees on the day in question and this is manifested by the fact that the rest of the work crew , including the opera- tions manager , Larry King, were compelled to work until after dark and for 14 hours on the following day in order to catch up with the accumulated work. In opposition to the argument advanced by the General Counsel that Howard Self and Bruce Cas- sell were laid off on Septemper 1 1 because of their activities on behalf of the Teamster Union the Com- pany points out that Bruce Cassell was recalled to work as soon as work was available and that he continued to work until the day that he was fired. It is urged by Respondent that the fact that the Com- pany recalled him and put him back to work con- tradicts the contention that the Company was hostile to him because of his activities on behalf of the Union, or for any other reason . Similarly, Larry King tried to call Howard Self to come back to work when he needed workers but he was unable to reach him. It is also argued by Respondent that it was only after the need for overtime and a heavy work schedule for 2 or 3 days and the inability of the Respondent to reach Howard Self that the Company then hired additional people. Another ar- gument is advanced by the Respondent that there is an additional factor which contradicts the charges in that one of the workers hired on October 1 or October 2 was James Westbend, who is known to Larry King to be a member of the Teamsters Union. It is not logical that the Company would hire a member of that Union if it was trying to discourage membership in the Teamsters or inter- fere with the choice of that Union by its other workers. In conclusion the Company argues that it was a new company, with a handful of employees, work- ing on a day-to-day hand-to-mouth basis, and hiring any able bodied people they could find who were willing to work for it. If Larry King wanted to fire the three individuals in question because of their union activities, he most certainly would have chosen some other time to do it, rather than the one period when the Company had more work than it could handle and was in desperate need of people to get the work completed before a then impending railroad strike. Respondent also contends that ap- 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proximately 3 months after the incident which precipitated the discharge of the three employees concerned in the instant case a similar situation arose where an employee, Charles McCoy, refused to work overtime and was fired. The significance of this incident lies in the fact that the employee in question had told the Company that he was very strongly against the Teamsters Union. Respondent also points to the fact that Howard Self, in his testimony and also in the testimony of the other three employees, all stated that they felt the Company broke the law by firing them for refusing to work overtime and by refusing to rehire Self. The Company argues not without some merit that from a reading of the testimony it did not occur to any of these employees that their layoffs or discharges were connected with any union activi- ties until after they had visited the Teamsters headquarters and been advised that the real grounds for the discharges had as their underlying motive an attempt by Respondent to discourage, coerce , and discriminate against the three em- ployees in question because they had joined and had become members of the Teamsters Union. Ac- cording to the testimony of all the complaining wit- nesses they did not get along with Sanders or Larry King from the time they began working and that there was constant friction among them long before the Teamsters were interested in them or the Com- pany. From all of the above the Respondent takes the position that the company actions in the instant case were not motivated by any illegal purpose and it therefore argues that there has been no violation of the Act and that in consequence the complaint in the instant case should be dismissed. The General Counsel alleges that at the time the three men were discharged they were given slips which stated that they were being let go due to a layoff because the Company did not have sufficient work to keep them on the job. General Counsel further urges that the reason given in writing for the discharge and/or the layoff of the employees in question was obviously false because the Company had a great deal of work even though only for a few days and in fact did need the help of the men work- ing for them. The General Counsel continues with the argument that certainly the Company being a new one had need for experienced employees in order to help them get through with the work that they were doing and upon which there was a rather high priority Furthermore the General Counsel points to the fact that one of the employees found among his separation papers a statement that he was being discharged because he caused damage to certain cars being loaded by the Company on be- half of its principal customers, the International Harvester Company. With respect to this incident employee Dale Cas- sell testified that the employees had to pull a 1700 Lodestar on the top deck of a bilevel railroad car. It did not have any brakes or motor and the empty truck body had to be pulled up on the top deck of the bilevel with a truck which had a 6 or 8 foot chain on it . As the truck went up the ramp Dale Cassell got over a little bit too far to one side, went into one rail at about a 45 degree angle , and half- way bent another one. There is no dispute in the record about the incident described supra. It is further pointed out by the GenerahCounsel that at the time of the occurrence of this incident nothing was said to Cassell, he was not criticized, and no one from the Company seemed to regard the occur- rence of this event as something of any great con- sequence. Cassell said that both Larry and Rex King went out to the railroad siding and looked at it. After examining the damage to the side rails of the car neither the Plant Manager Larry King nor the Vice President Rex King took any action for ap- proximately 6 weeks before the date that Dale Cas- sell was discharged. After the examination was made of the damage neither Larry nor Rex King made any issue over this incident. One of them did make a comment that "You sure bent that." And Cassell replied, "Sure did." The Teamsters counsel brought out in his cross-examination on the record that Cassell was never told at the time this incident occurred that he would be disciplined or suspended or in fact that he had ever done anything wrong. Unfortunately for the smooth flow of the Respon- dent's argument as set forth in its brief based on the fact of record I arrive at a different conclusion from that of the Respondent. While a telling argument can be advanced by Respondent that even though Larry King interrogated some of the employees in an attempt to find out who among them were mem- bers of the Union the Company had already in fact received from the IAM a letter to the effect that they had relinquished their interests in the four em- ployees who had signed cards for the IAM and had in fact turned these cards over to the Teamsters Union. While the record is not entirely clear it ap- pears that enclosed with this letter were the four cards signed by the met who had initially joined the IAM and therefore Larry King knew the names of the men who had joined the Union from the cards which were inclosed in the letter which he had received from the IAM. However, despite this fact it is not disputed on the record that Larry King did in fact interrogate some of the three employees in an effort to discover who among them had joined the Team- TRACON, INC. 157 sters Union. This undisputed fact constitutes an ad- mission by the Respondent that it engaged in un- lawful interrogation under the Act and con- sequently violated Section 8(a)(1) of the said Act. Respondent 's argument that the reasons ad- vanced by the three employees who refused to work overtime were either frivolous or contrived does not seem reasonable to me. First of all it should be remembered that the record is clear that prior to the ocassion when the Company first requested its employees to work overtime , approxi- mately October 2, none of the employees had ever been requested to perform overtime work. Despite the above facts it is clear from the record that Respondent harbored no union animus. It is not disputed that in the talk Willard King held with his then full complement of employees , four in number at the time the Company commenced operations in Springfield , Ohio, he told them, inter alia, that he expected and wanted his employees to join a labor union . It was further corroborated by the General Counsel's witnesses that in this meeting King explained that the home operations of the Respondent in Fort Wayne, Indiana, were being amicably conducted with the Teamsters Union at this location . Additionally King told his employees that it was up to them to choose their union representative based on their own free selection without any pressure or coercion imposed on them by the Company. At this same meeting King frankly expressed his preference that the men join the IAM. He ex- plained his preference by saying that the Com- pany's principal customer in Springfield was the In- ternational Harvester Company. The men em- ployed by Harvester were represented by the lAM and King said that if the men at Tracon were also represented by the same union this would probably be good for Tracon's business . Parenthetically, and understandably , since the starting rate at Harvester under its contract with the IAM was considerably less than the Teamsters rate, King had this further consideration in mind when he urged his employees to cast their lot with the IAM. The employees at first all signed IAM cards. The IAM representative came out to the plant and showed King his four signed applications for membership cards, after which King signed a recognition agreement with the said IAM. Thereafter the men elected Howard Self (one of the alleged discriminatees ) as their spokesman or steward and called on the IAM representative to discuss with him the kind of collective-bargaining agreement they might hope to negotiate with Respondent . This union representative showed "218F2d409(CA 5) them a rough draft contract he said he would try to consummate with Respondent on their behalf. When asked how long it would take to conclude a contract with the Company, the IAM, man, Boggs, said it would take about 5 months. This representa- tive seemed in a hurry to get the men out of his of- fice because he explained he was about to leave to go to California The men felt Boggs was kind of short with them After they left the IAM office they discussed their meeting with Boggs and were deter- mined to get out of the IAM and switch their allegi- ance to the Teamsters Union . The paramount con- sideration motivating them was to join the union that paid the highest rate and granted the maximum fringe benefits Shortly thereafter they resigned from the IAM and joined the Teamsters Union The IAM, for its part , wrote Tracon a letter informing it that Respondent 's employees had opted out of the IAM and into the Teamsters Included in this letter the IAM returned the union cards signed by the men, disclaimed any further interest in representing them , and declared that it , the IAM , was turning over its representative status to the Teamsters. After the above-described events took place what later transpired and ultimately ripened into four discharges requires close and further scrutiny. Under a somewhat similar state of facts the Board affirmed a Trial Examiner's Decision in Leprino Cheese Company, d/b/a Leprino Cheese Mfg. Co., 170 NLRB 601. In that case a group of em- ployees were told by that Company that they would be allowed to leave their jobs early on Christmas day to celebrate the holiday with their families. As it later turned out their supervisor changed his mind and ordered the men to continue working throughout the day. The employees in question regarded this change in working assignment as a promise broken by the Company. Six of the em- ployees walked off the job and went home. Respond- ent in Leprino thereupon discharged them. Trial Examiner Herman Marx, in a well-reasoned opinion , found on these facts that the men were justified in walking off the job and concluded that when Respondent discharged them it violated the Section 7 rights of the employees to engage in concerted action. It was further found that by dis- charging the said employees respondent violated Section 8(a)(1) and ordered them reinstated with backpay. In the course of his opinion Trial Exam- iner Marx distinguished and differentiated the situation presented by Leprino from N.L.B.R. v. Marshall Car Wheel and Foundry Co., which case was heavily relied on by the Respondent.4 His opinion states in pertinent part: There a strike was deliberately timed , without prior notice , to coincide with the pouring of molten metal , which if performed with insuffi- cient help, could have caused "substantial 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD property damage and pecuniary loss" to the employer, and the Court held the walkout to be unprotected because the employees had delib- erately created a hazard of substantial damage to the plant. The doctrine of the case has been limited to situations involving a danger of "aggravated injury to persons or premises." 5 The Leprino Cheese Company case was reviewed and affirmed by the United States Court of Ap- peals for the Tenth Circuit (424 F.2d 184). The court dealt with two aspects of Leprino only one of which need concern us. The court answered the issue germane to the case at bar by affirming the Board 's findings that the employees were engaging in protected concerted activity. Applying the teaching set forth in both the Board 's and court 's decisions to the instant case all that remains for consideration is the determination as to whether the four employees here involved were engaging in protected concerted activity. In my opinion the four employees refused to work overtime solely as a matter of their own per- sonal convenience. They had a perfect right to refuse to work overtime and Respondent had the corollary right to discharge them for their failure to obey Larry King's order. This order was predicated on the economic requirements of the Respondent to have this work promptly performed. There is no element of spoilage involved in this case. Nor is there any evidence in the record that the four em- ployees concertedly refused to follow King's orders in order to protect or advance their right to engage in concerted activities. Based on the facts of record it is clear that Leprino, which was an unorganized plant, is distinguishable on its facts from the instant 'Central Oklahoma Milk Producers Association , 125 NLRB 419, 435 (expressly noting that a hazard of milk spoilation is not within the reach of matter. Accordingly, I recommend that the 8(a)(3) allegations of the complaint be dismissed. With respect to Larry King's undenied interroga- tion of an employee as to whether or not he had joined the Teamsters Union this question appears on its face to violative of Section 8(a)(1) of the Act. However the question could not in logic have been propounded by King to ascertain if the in- dividual had joined the union in furtherance of il- legal motivation of an antiunion nature. The record is abundantly clear that the Company was affirma- tively in favor of their employees joining a union. The fact that the Respondent did shop around to try to get as good a deal as possible from either of the unions involved in this proceeding is not viola- tive of the Act. I regard the interrogation as being de minimus and not requiring a remedy. Therefore, on the basis of the entire record I recommend that the complaint be dismissed. Upon the foregoing findings I make the follow- ing: CONCLUSIONS OF LAW Respondent, by discharging the four employees encompassed in the complaint did not violate Sec- tion 8(a)(3) and (1) of the Act. Similarly Respon- dent's technical violation of 8(a)(1) by its inter- rogation is de minimus and does not require remedial action on its part. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. the Marshall holding ), N L R B v Morris Fishman and Sons, Inc , 278 F 2d 792,796 (CA 3)