Thomas Cartage, Inc.

THOMAS CARTAGE, INC. Thomas Cartage, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local 577. Cases 16-CA-3828 and 16-RC-5328 October 28, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 25, 1970, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that other allega- tions of the complaint be dismissed. The Trial Examiner also found no merit in certain objections, filed by the Employer, to the rerun election conducted on February 19, 1970, and recommended that the objections be overruled. With respect to the 9 challenged ballots, the Trial Examiner recommended that 7 of the challenges be overruled and 2 sustained, and that the former be opened and counted. Thereaf - ter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel did not file exceptions or a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. Case 16-RC-5328 While we concur in the Trial Examiner's recommen- dation that the Employer's Objection 2 be overruled, we do so on the ground that the evidence adduced by the Employer failed to show conversations between union officials and employees after the opening of the polls or conduct which otherwise constituted interfer- ence with the election. The Employer's motion to reopen the hearing to adduce newly discovered evidence is denied. Howev- er, in light of the Employer's contention that discrimi- natee Charlie Miller had secured permanent employ- ment prior to the rerun election, we shall direct the Regional Director to open and count only the ballots 157 of Crandall, Slater, Stephens, Crawford, Bradley, and Moss, and issue a revised tally of the ballots and appropriate certification. However, if Miller's ballot is determinative, the Regional Director shall conduct an investigation or hearing to ascertain the facts and issue a report thereon. Case 16-CA-3828 As the parties stipulated that Miller was offered reinstatement at the same time as the other discrimi- natees, we shall modify the Trial Examiner's Remedy, Recommended Order, and Notice accordingly. We shall leave the extent of Miller's entitlement to backpay to the compliance stage of the proceedings. We shall also modify the Trial Examiner's Remedy by limiting the computation of interest on the backpay ordered therein to the customary 6 percent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Thomas Cartage, Inc., Amarillo, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete the second sentence from paragraph 2(a) of the Recommended Order and substitute the following: "Pay to Charlie A. Miller the wages he lost by reason of his discharge on December 11, 1969, until the date of the offer of reinstatement as more fully described in this Decision under `IThe Remedy,' as modified." 2. Delete the last substantive paragraph from the Appendix to the Trial Examiner's Decision and substitute the following: "WE WILL pay Charlie A. Miller the wages he lost from the date of his discharge in December 11, 1969, to the date of our offer of reinstatement in March 1970." It is also ordered that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. It is further ordered that Case 16-RC-5328 be, and it hereby is, remanded to the Regional Director for Region 16 to open and count the ballots of James A. Crandall, Milton E. Slater, Bobby Glenn Stephens, Lloyd N. Crawford, Ralph Bradley, and William W. Moss, and to issue a revised tally of ballots and an appropriate certification. In the event the ballot of Charlie A. Miller becomes determinative of the election, the Regional Director shall conduct an investigation or hearing to determine his employment status at the time of the rerun election. 186 NLRB No. 30 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner: Upon a charge and amended charge filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 577, herein the Union, on December 11, and 19, 1969, and January 22, 1970, respectively, the General Counsel issued a complaint (Case 16-CA-3828) on January 30, 1969, against Thomas Cartage, Inc., herein the Company or Respondent. The complaint alleged violations of Section 8(a)(1) and (3) of the Act. Respondent's answer denied the commission of the alleged unfair labor practices. In Case 16-RC-5328, involving the Company and its employees and the Union, an election had been held on February 19, 1970.1 Thereafter, the Company, on February 25, 1970, had filed timely objections to the conduct of the election. On March 20, 1970, the Regional Director for Region 16, issued a Report on Objections and Challenged Ballots, order consolidating cases, and notice of hearing. The instant hearing, held in Amarillo, Texas, on March 25, 1970, therefore, encompassed both the complaint allega- tions and the objections and challenges in the election. FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Texas corporation with its principal office in Amarillo, Texas. At all times material, Respondent has been engaged in Oklahoma and in Texas in the business of an interstate common carrier, maintaining truck terminals in Dumas and Amarillo, Texas. In a representative 12 month period, Respondent, in the course of its trucking operations, derived gross income in excess of $50,000 for services performed outside the State of Texas. During the same period, Respondent derived income in excess of $50,000 from transporting and delivering, to enterprises within Texas, freight and cargo which had been purchased and shipped from States of the United States other than Texas. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the fall of 1969, the Union was engaged in an organizational campaign among Respondent's employees; meetings were held and employees signed union authoriza- tion cards. The Union filed a petition for certification on October 23, 1969 and, pursuant to a stipulation for a consent election, an election was held on November 21, 1969. Respondent filed objections to the election and the parties thereafter entered into a stipulation providing that the election be set aside and that a second election be conducted. This stipulation was executed by the Union on December 4, 1969 and by Respondent on December 9, 1969. The Regional Director of the Board approved the stipulation in December 9, 1969. Thereafter, the Board I An election on November 21, 1969 had been set aside and the second election was held on February 19, 1970. 2 Prior to becoming dock foreman, Webb, a full-time driver, received $3.35 per hour. Slater, one of the firemen, estimated that he had averaged issued a Direction of Second Election. B. Events During the'. Organizational and Election Period Crandall, Crawford, Slater, and Stephens are regular employees of the Amarillo Fire Department. Their work schedule as firemen is 24 hours on duty, then 48 hours off duty, then 24 hours on, and so forth, in a continuous cycle. Since 1968 they have also worked as regular part-time employees for Respondent. They worked in pairs which meant that when two of them were on their fire department jobs the other two were working for Respondent, and the latter two, upon returning to fire department duty, would be replaced by the former two. For Respondent, these men loaded and unloaded trucks at the company terminal and they also drove trucks on Respondent's routes. Their pay is $3 per hour which is less than that received by full-time drivers.2 They do not receive any fringe benefits such as paid hospitalization, life insurance, paid vacations, profit sharing, and six or more paid holidays, which are provided for full-time employees. In the latter part of October 1969, Webb, Respondent's dock foreman, asked Crandall, who impressed us as a credible witness, while the latter was unloading a box car, if he had heard anything concerning "this business about the Union." 3 Crandall replied that he had heard about it but that he and the other part-time employees considered themselves not to be involved because they believed that they were not eligible to vote on the matter. Webb then said that Thomas, Sr., the president and general manager of Respondent, had informed him that the part- time men would "very definitely" be eligible voters since they were regular part-time employees. Not long after this conversa- tion, Crandall signed a union authorization card. Around the first week in November 1969, Thomas, Sr., came on the terminal dock and asked Crandall if he had heard "anything about the union drive that was going on and the possibility of an election being held." Crandall said that he had heard about it. During the conversation or toward the end of it, Thomas said that ". . . I heard that you fellows went down and signed up in the union last night...." Crandall replied that it was not true because two of the part-time men were on duty at the fire department and there was no way the four part-time men could have gone down to sign union cards. Thomas had also said, "I'd like to have you boys vote for the company " in the election, and he confirmed that the part-time men would be eligible to vote. Thomas said that the cost of health and welfare benefits under a union contract would be "prohibitive" and "that he just couldn't afford it and that this was something that he just couldn't live with at all." He went on to tell Crandall that if the Company signed a union contract, the Union would force it to lay off the part-time employees. Crandall replied that he was aware of the possibility and observed that it would be foolish to vote for anything that "would take away my job." Thomas asked how the other part-time "felt about it". Crandall said that he was not sure but he would find out and would let Thomas know. about 30 hours per week for Respondent before he was terminated. With some variations, this is probably representative for the others. 3 Respondent denies that Webb is a supervisor . We will discuss this aspect at a later point. THOMAS CARTAGE, INC. 159 After lunch on the same day, Crandall reported to Thomas, Sr., that he had talked to the other part-time employees and they felt the same as Crandall, "that it would be foolish to vote for something that would cost us our fobs." 4 On the basis of the foregoing conversation with Crandall, it is a fair inference that Thomas, Sr., had reason to believe, and did believe, that the part-time employees would vote against the Union in the coming election on November 21, 1969. Confirmation of the validity of such an inference is found in the fact that on the day of the election, just prior to the voting period, Thomas, Sr. approached Crandall on the terminal dock and said, "Are you boys still with me on this?" Crandall said "We still felt the same way ... as we did when he had first spoken to me about it, that it would be foolish to vote for anything that would cost us our jobs." Further indication that Thomas, Sr. was confident that the part-time men would vote against the Union and that the Union would not win the election is found in Dock Foreman Webb's testimony. Webb asked Thomas about Webb's being eligible to vote in the election. Thomas said, "Well, I've got this election won. I didn't even want to mention it. I don't want to get involved in trying to get you classified as a voter." Webb acquiesced, saying, "Well, if that is the way you feel about it, well, that's the way it is." 5 On November 20, 1969, Thomas, Sr., read a speech to the employees. The gist of the speech was to convince the employees not to vote for the Union. The advantageous fringe benefits provided by the Company were pointed out and other reasons for not having a union were set forth. Although, as we shall see , the Company's business had fallen off, beginning in November, Thomas, on November 20, stated to the employees: I have received a rumor that if the Union wins the election, the part-time employees will no longer work here. I want to state here and now that although the unions try to eliminate part-time jobs, I can assure the 4 When Crandall said to Thomas that Crandall was aware of the possibility that the Union, if it won the election, might require the Company to layoff part-time men, Crandall explained his awareness by saying that he knew that some Teamster contracts had a clause that would make it prohibitive for the employer to employ part-time people since the clause would require the employer to pay time and a half to any employee who had worked more than 40 hours in the week Crandall testified that between the time that Webb had spoken to him about the Union and the time of his conversation with Thomas , he had spoken to the union attorney about the status of part-time employees. The Union attorney said that in Texas , a right to work state , it was not necessary for a man to belong to a union in order to work for an employer with whom the Union had a contract, he also said that regular part-time employees were different from casual employees and that the only thing pertinent to the part-time employees, if the Union came in, was the matter of their seniority, and that, "if there were to be a reduction in force due to slow work," the part- time employees would be the first to go; the attorney told Crandall that the Union would not undertake to negotiate with Thomas a contract provision requiring payment of time and a half to the part-time firemen for hours over 40 a week 5 Another aspect of this conversation has some bearing on Webb's status Although the election was a consent election in which parties agree on the voting unit, the date of election, and the eligibility of voters, Respondent apparently made no claim that Webb was an eligible voter and Webb made no attempt to vote even a challenged ballot The voting unit included all Respondent's drivers but excluded supervisors, guards, professionals, and office clericals Ordinarily, a rank and file employee does not abstain from voting, unless he is in an excluded category or is identified with management, simply because his employer tells him, in effect , that he does not want the employee to vote But this is what part-time employees their jobs will not be eliminated because I will not agree to such a condition. Aside from the fact that the employees were assured that the Company would not agree with the Union to eliminate part-time jobs, the overall inipression conveyed was that part-time jobs were in the Company to stay and that such jobs would not be eliminated. During the election on November 21 and before the ballots were counted, Webb testified that employee Jessup told him what the final count would be and the names of the employees who had voted for the Company (against the Union). About 15 minutes later, Webb went to Thomas, Sr. and gave him the foregoing information. At that point Thomas had received or was aware of the official result of the balloting and when Webb came in with his unofficial intelligence, Thomas told Webb that the employee or Jessup had "sure hit it right on the head" and that the official tally was 14 to 5 for the Union, as predicted by Jessup. Thomas, Sr. testified to the same effect and he testified that none of the five alleged discriminatees were named among the five employees who had voted for the Company. All those named as voting for the Company were regular full-time employees. There had been 19 eligible voters in the election. The Union received 14 votes and 5 votes were cast against the Union. Respondent thereafter filed objections to the conduct of the election. The Regional Director of the Board investigated the objections and the evidence submitted by the parties. As a result of the investigation, the parties entered into a written stipulation providing that the November 21 election be set aside and that the Regional Director conduct a new election. The Union executed the stipulation on December 4, 1969, and the Company signed on December 9, 1969. The Regional Director's approval of the stipulation was appended on December 9.6 On December 8, 1969, the Company issued a typewritten happened in Webb's case and Webb said, in substance, that Thomas' word as to Webb's voting was controlling insofar as Webb was concerned Further, an employer, however confident of how an election may turn out, does not ordinarily tell an eligible employee not to vote, unless he believes that the individual is, or most likely is, an ineligible voter Even a voter whose eligibility might be debatable is ordinarily encouraged to vote at least a challenged ballot Since Webb was clearly not a guard, professional, or office clerical, his eligibility, foreclosed by Thomas himself, was evidently premised on his supervisory status, at least at the time of the November 21 election; and Webb's ready acquiescence apparently stemmed from the same relationship Although not determinative, this vignette of Webb's status with the Company is not to be ignored 6 Although there is no direct evidence on some details of the matter and although a definitive finding thereon is not essential, we would assume that upon receipt of Respondent's objections to the election , the Regional Director investigated the objections and in the course of the investigation was in contact with the attorneys for the Union and the Company and received their evidence and contentions Since it was the responsibility of the Director to issue a Report on the Objections and recommend disposition of the objections to the Board, we assume that as a result of his investigation, he initiated the stipulation whereby the election would be set aside and a new election held It is doubtful that the Union initiated the stipulation since the Union had won the election and the stipulation, in effect, vindicated the Company's objections, and provided that the election be set aside The possibility exists that Company counsel proposed the stipulation but we deem it more likely from the posture of the situation, i e, the filing of objections and the Regional Director's responsibility to conduct an investigation, that it was the latter and not the Company that initiated the proposed stipulation A stipulation, being of its nature voluntary and consensual, would indicate preliminary contact by the (Continued) 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bulletin, with the names of Crandall, Crawford, Stephens, and Slater, stating: At the end of this pay period, which is December 11, 1969, the above will be layed off permanently. (Thomas, president) Crandall was working on the dock unloading freight on Tuesday, December 9, when Webb approached him. Webb mentioned something about trucking service to the helium plant that was being discontinued on Friday.? Crandall replied that he had heard something about it and said, "I guess you also know that the firemen won't be working anymore for Thomas as of Thursday." Webb replied, "Well, I expected that." Crandall asked him what he meant by that remark. Webb said, "Well you shouldn't have lied to Spud8 about how you was going to vote in the last election." Crandall said that he did not understand how anyone knew how he voted and said, "You weren't standing behind me in the ballot box watching me mark my ballot, were you?" Webb replied, "Well, I happen to know how everybody voted." Crandall again challenged this statement, saying that it was a secret ballot election and no one "knows for sure" how a person votes. During the foregoing conversation, another employee, Slater, was nearby, according to Crandall.9 Slater, in his testimony, describes the conversation between Webb and Crandall that he overheard, in substantial corroboration of Crandall. Webb denies having made the statements attributed to him. He states that he told the employees that were laid off that "business was bad, that we were terminating part of our helium activity, and that we wouldn't need them anymore." Based upon observation and in all the circumstances, the Examiner credits Crandall and Slater.10 The part-time employees were terminated as of Decem- Director or his agent with counsel for the Union and the Company to ascertain their disposition toward a stipulation as a means of disposing of the objections. With affirmative or at least no negative response from counsel, the stipulation would then be sent to the attorneys for execution. The Union and the union attorney were located in Amarillo. The offices of the Board and of the Company attorney were in Fort Worth, over 300 miles from Amarillo. The union attorney signed the stipulation on December 4. Since the stipulation had not yet been signed by the Company, it is probable that the Union, before unilaterally agreeing that the election, which it had won, be set aside, had been advised by the Regional Director that both the Company and the Director would join in the stipulation as the method of disposing of the objections. Presumably the agent of the Director had been in contact with the Company's attorney as well as the Union's attorney. 7 The monthly peak of the Respondent's work for the helium plant had entailed 2 men about 4 days a month. 8 The employees referred to Thomas, Sr. as "Spud". 9 Slater, Crawford, Stephens, and Crandall, the firemen who were regular part-time employees of Respondent, had all signed union cards during the organizing period prior to the November 21 election. 10 An aspect of Webb's testimony that we note is that while Respondent denies that Webb is a supervisor, the man himself has claimed that he undertook to tell employees why they were laid off and that "We [the management or the Company] wouldn't need them anymore." It is extremely doubtful that any rank-and-file employee would have claimed and purported to speak in such a manner for the Company. 11 The Union's initial charge regarding the terminations was filed December 11, 1969. 12 When the notice of termination was issued on December 8, 1969, it was foreseeable that such employees would not be eligible voters in the next election, whether the latter was regarded as impending or only as a possibility. After approval of the stipulation on December 9, the next step ber 11, 1969, the end of the weekly payroll period. According to the December 8 termination notice, aforedes- cribed, they were "layed off permanently". Meanwhile, Respondent's objections to the November 21 election having borne fruit, the Union on December 4 had signed a stipulation that the election be set aside and that another election be conducted. Then came the terminations abovementioned.11 At this second election which was held on February 19, 1970, the eligible voters were those in the unit "employed during the payroll period ending immedi- ately preceding January 28, 1970." The four "permanently" terminated employees were, predictably, not on the election eligibility list, and their votes were accordingly challenged.12 However, a few weeks after the election, four of the permanently laid off employees, the firemen, were rehired in about the first week in March 1970, and were so employed at the time of hearing.13 The fifth employee whom the General Counsel alleges was discriminatorily terminated is Miller. Miller com- menced work for Respondent in October 1969, and he worked on the terminal dock and drove an in-town truck. In our opinion Miller was basically a truthful witness and we credit his testimony. During the union organizational campaign, while at work, Webb brought up the union subject with Miller. Miller told Webb that he did not know what to do because his father-in-law disliked the Teamsters Union and Miller's wife "had expressed her father's dislike for the Teamster's Union." But Miller's own father was in favor of the Union. Miller said, however, that nobody would know how he voted. Eventually, Miller apparently reached a decision on the union matter and he attended union meetings and signed a union card. On one occasion, evidently in November 1969, Webb walked into the truck that Miller was loading and asked him if he had been to the union meeting. Miller said yes. Webb then asked if the was for the Regional Director to prepare and issue a Report on Objections. This was done, with the Report describing the objections and the stipulation and recommending that a second election be directed pursuant to the stipulation. The Report was dated December 18 and was sent to the Board in Washington, D.C., as required under the terms and rules applicable to the election procedure. Again, predictably, it would take some period of time for the Board to act thereon . The Board issued its Direction of Second Election on January 7, 1970 and, again predictably, as was customary, those declared eligible to vote were the unit employees "employed during the payroll period immediately preceeding the date of issuance of the Notice of Second Election by the Regional Director +,,." The matter then returned to the Regional Director for the issuance of Notice of Second Election. The notice issued on January 28, 1970. 13 Less than a week after the February 19 election, Respondent wrote to the four terminated part-time employees, on February 25, stating that "Our business has now increased to the extent that we have need once again for a part-time employee. In the event you desire re-employment on a part- time basis, please contact me before March 5, 1970..,.', (signed, Thomas, president). On January 17, 1970, Respondent hired a new employee, Bradley, and on January 16, 1970, another new employee, Moss, was hired . Bradley and Moss started work on January 26. These were full time employees. Bradley works out of the Amarillo terminal and Moss works out of Dumas. Thomas, Sr. testified that Bradley was hired because business had begun to pick up and he needed someone (additional) who would be there "everyday on the job." Also, apparently by way of explanation, Thomas stated that employee Watley had quit on November 20 or 21, 1969. As to Moss, at Dumas, the net explanation came down to the fact that with reassignment of a larger tractor it was economically advantageous and there was enough work to merit hiring an additional employee. The ballots of both Bradley and Moss were challenged by the Union in the second election. THOMAS CARTAGE, INC. "red-headed lawyer" was there. Miller replied that he had not seen such a person. Shortly after the November 21, 1969 election, Miller was working in the forepart of a truck. Webb and another employee, Gatlin, were farther back in the same truck. In an audible voice, heard by Miller, Webb said to Gatlin, "Charlie Miller voted for the Union because he can always get a job at a filling station for a dollar an hour." At this point Webb addressed himself directly to Miller, saying that he knew Miller had voted for the Union "because the vote was 14 to 5" and Webb said he knew "the five that voted for the Company." 14 Later, Miller had learned that the four firemen had been terminated. Since the notice of termination was dated December 8, it was evidently between December 8 and 11 that Miller became aware of what had occurred. That evening, as Miller was working, Webb said to Miller that he would have to go down to the office and tell Thomas, Sr. that Miller did not have enough seniority to work there and "for him to get rid of [Miller]." Miller received a notice of termination on or shortly before December 11, 1969 which stated, "Charles Miller-At the end of this pay period, which is 12/11/69, the above will be layed off permanent- ly", Thomas, Jr., operations manager.15 Apparently Thomas, Jr. had orally informed Miller that his "services would no longer be needed." The written notice was in response to Miller's request for something in writing. Webb testified that on one occasion Miller had told him that he did not know how to vote because his step-father or father-in-law or father was a good friend of Mr. Thomas. Webb states that he advised Miller to ask the Union and the union lawyer. Respondent's counsel called Webb's atten- tion to testimony by Miller that Webb had told Gatlin that Webb "knew that Miller had voted for the Union and that apparently he [Miller] didn't care about his job because he could get a job working at a filling station ... '; and counsel then asked Webb, "... did you ever make a statement such as that?" Webb never answered the question directly and did not controvert Miller's testimony regarding the incident. In fact, Webb's testimony tends to confirm Miller. The extent of Webb's answer was that it was a "kind of running joke down there, that service station deal" and Miller, in the past, had said, "I can always go to work at a service station for a dollar an hour." According to Webb, he first learned that Miller was to be terminated on the "evening that all five of them was laid off [the four firemen and Miller]" when Miller stated "that he had been laid off too." Webb states that it had been his "impression that he [Miller] was going to be retained because he was there everyday", working.16 After his termination, Miller was not recalled. CONCLUSIONS a. The status of Webb The General Counsel contends that Webb is a supervisor 14 This is consistent with Webb's and Thomas' testimony, earlier described, that they knew the names of the five who had voted for the Company against the union and these five did not include any of the five alleged discrimmatees 15 Thomas, Jr was the son of the president 161 of the Respondent. Respondent denies that Webb is a supervisor. In our opinion Webb was a supervisor, albeit a minor supervisor; further, in all the circumstances, we believe that Webb in his employment was identified with management factually and in the eyes of other employees. At the hearing, when asked "what is your job at Thomas Cartage?", Webb replied, "dock foreman." Additionally, the various employee witnesses testified that Webb was the dock foreman or their dock foreman. Thomas Jr., operations manager and dispatcher of Respondent, testified that Webb was called the dock foreman and "he works out there on the dock." Although there is no physical description of the premises in the record, we believe that the reference to Webb's working "out there" on the dock indicates a physically distinct area from the office where Thomas Senior and Junior and office people have their offices. This is confirmed by various other testimony such as Webb's statement to Miller on the dock that Webb was going "down to the office" to tell Thomas to get rid of Miller; Crandall's testimony that from time to time Webb leaves the dock and goes "to the lower office ... the general office," and that many times, when Crandall reported for work, Thomas Jr. would tell him "to go up on the dock and help Junior" 17; and when the employee reported to Webb the latter would assign work to him on the dock. The title "dock foreman" and the fact that the dock area was physically separate and not on the same level as the general office where the two Thomases, the only two admitted supervisors of Respondent, held forth, are not in themselves deternunative factors. However, we are of the opinion that Respondent did not contemplate that the dock, with its tasks of loading and unloading trucks in proper order, the question of priorities in the trucks, proper methods of stacking cargo, and the matter of which employee should do what and who should assist whom, should operate without proximate supervision and be left to the inclinations of employees with their varying degrees of experience and capability. Rather, we believe that Webb was designated dock foreman to supervise the daily operation of the dock and the employees working thereon. Other evidence confirms that such was the fact. Webb had been dock foreman since September 1, 1969. Prior to that he had been a driver for Respondent and before that he had been dock foreman. The vice president of the Company also manages the Company's Dumas terminal . He is the brother of Thomas Sr., president of the Company, and is married to Webb's sister. As a driver, Webb had received $3.35 per hour, with no guarantee as to the number of hours. As dock foreman he is paid $4 per hour and is guaranteed 50 hours per week. Although there is some testimony that, as dock foreman, Webb occasionally will help out by driving a truck, he spends practically all his time on the dock.18 Thomas Sr. testified that Webb "stays on the dock." According to Thomas, there is a different loading pattern for the trucks every day and Thomas Jr., at the beginning of the day, 16 Although a part-time employee, Miller apparently worked every day 11 Everyone addressed Webb as "Junior" and Thomas Sr as "Spud" and Thomas, Jr as "Tommie " 11 Webb may drive if someone is ill or if there is an emergency situation 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prepares a schedule and furnishes a copy to Webb. The schedule designates particular trailers, what freight is to be loaded on them, and the drivers. Webb sees to it that the trailers are loaded properly and that the employees "are informed as to what trailers are loading for what destinations," and that the proper freight goes on the proper trailers. In addition to seeing to it that the other employees load and unload their trailers properly, Webb assists manually in loading and unloading. In the course of the working day, an employee may ask Webb for time off or for permission to leave early. Webb may refer the man to Thomas but, if the Thomases are not present, Webb has given various employees the requested time off. Stephens described an occasion when he brought his truck back to the terminal. Thomas Jr. was standing at the point where Stephens came in and he told Stephens "to go help on the dock." As Stephens started to comply, Webb, who was also standing there, told Stephens that he could go home. Stephens then went and signed his timecard and went home. Both Thomas Jr. and Webb testified that the foregoing occurred and that each was aware of what the other had said.19 Roberts, who has worked for Respondent about 10 years, testified that in the morning he customarily drives a pickup truck. He returns to the dock around 11:30 a.m. and then works on the dock until Webb decides at what point Roberts should go and eat, so that the truck will be loaded when Roberts returns and thus enable Roberts to leave on his next run. Some of the men do not return from their runs until 6:30 or 7 p.m. As far as appears, Webb is the only person in authority still present at the terminal at such time or after 5 p.m. Webb is customarily the last man to leave the terminal. Webb does not have authority to hire or to discharge employees. It is our opinion, however, that it is a fair inference that, if an employee consistently did not follow Webb's assignments and directions in loading and unloading trucks or demonstrated consistent palpable incompetence in such tasks, Webb would probably report the situation to his superiors and he would probably express an opinion or recommendation regarding the employee to his superiors. The latter, we would assume, would either act on the basis of such a report and recommendation or would, at least, investigate the matter.20 Apparently to demonstrate that a dock foreman did not possess authority to make effective recommendations regarding employees, Respondent elicited testimony from Webb regarding an incident in which Sanders, the predecessor dock foreman, was involved. According to Webb, there was an employee who would not follow some 19 No explanation of this occurrence was offered and Thomas did not criticize Webb for his action. It illustrates , we believe, that, while Thomas had overall supervision and made basic assignments, Webb was closer to the actual requirements of work on the dock and made determinations and decisions within that periphery . Webb apparently knew on the particular occasion described by Stephens that he did not need an added man on the dock and he made the determination to allow Stephens to leave. Presumably, if Webb had felt that Stephens was needed, he would have made the determination as to which particular task on the dock he would assign Stephens . It is not uncommon for Thomas to turn an employee over to Webb by telling the employee to go up on the dock to help Webb. When the employee arrives on the dock, Webb, in his discretion , assigns the employee to this or that task in whatever order he, Webb, determines. 20 Webb testified that there was one man, unidentified, whom he did not consider to be a good worker. Webb states that he told Thomas that direction or rule of Sanders' one evening, "of an evening," as Webb phrased it. The employee, "He just wanted to park his truck and go home, and they [Sanders and the employee] got into a discussion over that.121 Sanders, however, told Webb that he had recommended the discharge of the man and Webb testified that the man was not discharged but is still working for the Company. Thomas, Sr. testified that Sanders had recommended discharge of the employee. Thomas told Sanders that he would investigate the matter and Thomas did so. As a result of the investigation Thomas did not discharge the employee. What the investigation revealed we do not know. Perhaps Sanders' recommendation was clearly unjustified and an exercise of personal pique. Perhaps it was not. After investigation, Thomas did not agree to follow the recommendation. Perhaps he would have done so on slightly different facts or less extenuating circumstances. The fact is that Thomas did investigate the matter. The authority to recommend disciplinary action or even to effectively recommend such action is not negated because, on one occasion, the facts of which are obscure, the president does not follow the recommendation of his dock foreman. Thomas did investigate the matter because of Sanders' recommendation. It is doubtful that a rank-and- file employee would have undertaken to make such a recommendation, that Thomas would have countenanced a rank-and-file employee recommending discharge of anoth- er employee because the latter refused to do what the former had told him to do, or that Thomas would have investigated the situation in such circumstances. On all the evidence we affirm our previously stated conclusion that Webb was a supervisor and identified with management. b. The discharges It is Respondent's position that the five discharges on December 11, 1969 were due to economic reasons, namely, a substantial fall off in business in the last 2 months of 1969. Thomas Sr. testified that there was "just a general decline in the freight traffic." He stated that every year "October is almost always a good month" but normally, each year, business decreases in November "and then [decreases ] a little more so in December." Roberts testified that in his 10 years with the Company there was a "slack period every year," starting in November and continuing through the first of the year. Respondent submitted financial data to support its contention that the December 1969 terminations were for business reasons. One exhibit shows monthly gross the particular individual "wasn't a freight man and never would be." According to Webb, this man was later laid off. Respondent's counsel then asked Webb, "Did the man continue to work after you told Mr. Thomas that? A. Yes, sir." Apparently, therefore, nothing happened to the man immediately. Perhaps Thomas had completely disregarded what Webb had told him; perhaps he was not interested in the competency of employees; or perhaps an opposite conclusion is warranted . The episode is inconclusive. 21 What the circumstances were, why the man wanted to go home, whether it was late at night or how long the man had been on the road, we do not know. We do not know why or how important it was that the man not go home. Nor do we know, actually, whether the employee did in fact go home or whether he simply gave Sanders an argument ("they got into a discussion over that"). THOMAS CARTAGE, INC. revenue for each month in 1968 and 1969 and in January and February 1970. Revenue in November 1969 was $35,294, and it declined by about $2,000 to $33,258 in December 1969, when the part-time employees were terminated. The December 1969 revenue of $33,258 was higher than the revenue in any month in 1968 and the figures for November and December, 1968, when the part time employees were not laid off, were $27,058 and $25,799, respectively. The decrease in revenue from October 1968, $30,926, to November 1968, $27,058, was about $3,800, and December 1968, $25,799, was over $5,000 below October 1968. In 1968, November showed $27,058 which was lower than the $35,294 in November 1969. In both years, December was lower than November but revenue in December 1969 was about $7,500 higher than December 1968. The upward turn in January after low Novembers and Decembers was about the same. From December 1968 to January 1969, revenue increased about $3,000. From December 1969 to January 1970, the increase was about $3,200. October 1969 at $45,930 was the second highest month of the year, being only about $800 less than the highest month and the drop from October to November was substantial. However, November 1969 was still higher than any month in 1968 and higher than the first 3 months of 1969. There were only 6 months in 1969 when revenue was higher than in November 1969 (April and November 1969 were approximately the same). Revenue in February and March 1969 had been $26,923 and $25,038, respective- ly, as compared with $35,294 and $33,258 in November and December 1969. Revenue for the entire first quarter of 1969 totaled $83,751 or an average of about $27,900 per month, January through March. The last quarter of 1969 showed total revenue of $114,482 or an average of about $38,000 per month, October through December. We have been discussing Respondent's gross or total revenue since that is what Thomas testified about in explaining the Company's decline in business in November and December 1969 as the reason for the December terminations.22 Although Thomas did not discuss it in his testimony, Respondent introduced into evidence the financial reports that the Company filed with the Interstate Commerce Commission for 1968 and 1969. These reports show operating revenues, expenses, and net operating revenue. Since Thomas testified that he had concluded in November 1969 that he should "reduce our expenses and our main expense is payroll," we have examined the aforementioned ICC reports. Under "Expenses", there are separate figures for the following: Equipment Maintenance; Transporta- tion; Terminal; Traffic; Insurance and safety; Administra- tive and general. We are unable to determine under what heading or headings the payroll of unit employees was allocated. It was probably under several headings in various proportions, but we are unable to assess whether it was, or had become, disproportionate or otherwise. We do know that all expenses except "Traffic" had increased substan- tially when compared with the corresponding quarter in 1968. Total revenues for the last quarter in 1969 and 1968 22 Respondent's Exhibit 2 consists entirely of total gross revenue per month in 1968, 1969, and January and February 1970 23 Miller, the other part time employee, was paid $2 per hour 163 were, respectively, $116,296 and $84,118; total expenses were $104,524 and $72,193; net operating revenue was $39 and $2,932. But in terms of net operating revenue, the first quarter of 1969 was far worse. The Company's net operating revenue was $6,840 in the red in the first quarter 1969 as compared to $2,319 in the black in 1968. The problem in the first quarter was again, apparently, expenses. First quarter revenue in 1969 was $84,235 and for 1968 it was $83,013; but expenses were $91,075 and $80,694, respectively. We are not persuaded on the evidence presented, and in view of the fact that in prior years and in other periods when gross business or net income was low and had decreased and was substantially worse than in November and December 1969, that Respondent, for the first time, was compelled by logic and economics to terminate part- time employees in December 1969, when in prior periods it had simply reduced working hours among its employees to balance a business decline. We do not believe that the evidence shows the November-December 1969 business situation to have been unique in Respondent's operations. In eliminating the part time employees as a cost cutting measure, Respondent was eliminating the least expensive part of his payroll. Respondent had presumably hired the firemen and Miller originally because it was a sound business move. As city firemen, the men, who were also young, were in good physical condition; their educational background and intelligence quotient was probably as good as or better than that of other actual or potential employees; they performed dock work and driving as did the other employees; they were reliable and had roots in the community; and they worked for $3 per hour which was less than, for instance, the $3.35 per hour received by the one witness who testified as to what he received as a full- time employee.23 Further, the Respondent did not provide paid hospitalization, insurance, vacation, paid holidays, and profit sharing to the part-time employees but did provide these benefits for its full-time employees. Respondent endeavored to elicit testimony that the full- time employees resented and complained about the part- time employees. Thus, employee Roberts, a full-time employee, was asked: Q. Mr. Roberts, isn't it true that prior to the Union activity the full-time employees used to complain to Mr. Thomas about part-time employees working because it cut down on their time, particularly during the slack season? 24 Roberts said that he was unaware of such complaints. He said, in fact, "It meant more benefits to us to have the part- time help there." The reason for this point of view, according to Roberts, was that the part-time men, while they generated profits for the Company, from which the Company paid fringe benefits such as profit sharing and other items to the full-time employees, did not share in such fringe benefits themselves. In short, the part timers' work increased the kitty and the full-time employees drew 24 There is no testimony by Thomas that he had received such complaints 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remuneration from work that someone else had performed.25 We now return to the December 1969 terminations. We have examined Respondent's business picture and we will consider some further testimony offered by Respondent. Thomas testified that about the middle of November, 1969, he first detected that his business in November and December "was going to be drastically reduced as compared to last year." He then contacted attorney Parker and told him that he needed to reduce expenses and that payroll was the main expense. Thomas had in mind and he told Parker that he contemplated dealing with the aforementioned matter, reducing payroll expenses, by reducing the working hours of all employees, full-time and part-time, as he had "done in previous years" during slack periods. Thomas states that Parker then suggested that all the part-time employees be laid off instead of reducing the hours of all employees. Parker assertedly gave as a reason for the foregoing the fact all the part-time employees except Miller, who was in college, had other full time jobs and could support their families, whereas the full-time employ- ees, if their hours were reduced, might find the situation to be "quite a hardship." Thomas testified that Parker further advised Thomas "not to do anything" until after the November 21 election. Thomas states that since the Company was already losing money, he decided to "do it for another week [continue to lose money for another week ]" because another week "wouldn't amount to much" The election was then held on November 21, with 14 votes cast for the Union and 5 against. Respondent filed objections to the election on November 28, 1969. The Union, on December 4, 1969, signed a stipulation providing that the election be set aside and a new election held. Thomas testified that after his conversation with Parker on November 15, 1969, about the need to reduce expenses, described above, the next time the two men discussed the matter was "along the first part of December." Attorney Parker then asked, "Does December the 4th ring a bell?" and Thomas said "yes" that was the date of the conversation. At that time, Thomas states, "we decided to lay off all of the part time employees." Thomas testified that he told Parker that the freight business was down and that he could not foresee any upturn that would require any later rehiring. A notice of permanent layoff of the part-time employees issued on December 8, to be effective as of the end of the payroll of December 11. As we consider the foregoing testimony of Thomas, we view it in the following light. Company business had declined from October to November 1969. A decline at such a period was customary and had taken place in the preceding years since the last 2 months of the year were the traditional slack period. In 1969, October gross business had been very high, $45,930, as compared to.$30,926 in October 1968. The decline from October to November 1969 was substantial, but the reduced business in November 1969, of $35,294, was still considerably higher than the November 1968 figure of $27,058 and higher than several other months in 1969. In both 1968 and 1969, December was a poorer month than November and the upturn from December 1969 to January 1970 of about $3,200 was about the same as the approximately $3,000 upturn from December 1968 to January 1969. Thomas, therefore, in November 1969, did not have an unprecedented type of business situation on hand. As in other years when faced with the slack period, Thomas turned his mind to reducing payroll expense. And the way he had successfully reduced payroll expense in prior years during such periods was to reduce the hours of all employees, both the full-time and part-time men. This method not only was a proved means of meeting the Company's need to reduce expenses, but it had not given rise to protest or resentment among the employees. It was not surprising therefore that Thomas, on November 15, contemplated reducing the hours of all its employees and did not contemplate making any layoffs. Further, we have seen that Thomas was concerned about the impending election. About November 5 he had spoken to Crandall about the Union and had indicated that if the Union won the election it would compel the Company to lay off the part-time employees. The implication was clear that if the Union was not successful, the part-time men would not be laid off. Crandall assured Thomas that he and the other part-time men felt that it would be foolish to vote for anything that would take away their jobs. We believe that from about the time of the foregoing and until November 21, Thomas confidently believed that the part- time firemen would vote against the Union. He was confident of the outcome of the election and told Webb, his dock foreman, not to bother to vote because "I've [I, Thomas ] got this election won." On the day of the election, prior to the voting, Thomas checked with Crandall and said, "Are you boys still with me on this?" Crandall answered affirmatively. It is our opinion that on November 15 and through November 21, Thomas had not contemplated and had made no decision to permanently lay off the part-time employees. There were several reasons why this was so. The part-time employees had never been laid off before during the annual slack period and neither in the past nor in 1969 was it necessary to lay off part-time employees in order to reduce payroll. Payroll expense had been, and could be, reduced as effectively by decreasing all working hours as by layoffs. Secondly, in our opinion, the evidence is clear that Thomas did not want the Union to win the election; and it is equally clear that before the election Thomas endeavored to win and thought he had won the votes of the part-time firemen against the Union; he, therefore, was not going to make the firemen ineligible to vote by laying them off permanently, i.e. terminating them before the election. Thirdly, in a written speech addressed to all employees on November 20, 1969, Thomas put himself on record as follows: I have received a rumor that if the union wins the election, the part time employees will no longer work here. I want to state here and now that although the unions try to eliminate part time jobs, I can assure the 25 Respondent asked dock foreman Webb substantially the same time men after they were rehired in March 1970. They were working less question as had been put to Roberts about complaints concerning the part- hours than before their terminations and Webb states "they don't like it." time employees . The only complaint Webb had heard was from the part- THOMAS CARTAGE, INC. 165 part time employees their jobs will not be eliminated because I will not agree to such condition.26 Fourthly, Thomas testified that when, on November 15, Parker allegedly suggested that the part-time employees be laid off "after the election," he Thomas, said that although he was "already losing money," he would, in effect, keep the part-timers "for another week" (November 15 to November 21), until after the election as Parker suggested. Despite the purported critical situation and the implication that even retaining the part-timers until November 21 was an effort, the notice of termination did not issue until December 8 and the terminations were on December 11, almost 4 weeks after the alleged termination advice by Parker on November 15. Fifthly, on November 15, when Parker allegedly suggested terminations instead of a reduction in hours, the implication of Thomas' testimony is that the reason given by Parker why there should be terminations instead of a reduction in hours was novel and impressive to Thomas. The reason advanced by Parker was that the part-time firemen had other jobs and therefore their terminations would not affect them very much, whereas if Thomas simply reduced the hours of its part- time and full-time employees, the latter would be affected. In our opinion, it is clear that at the time he hired the firemen, Thomas knew that they had full-time jobs and that the hours they worked for him were hours that would otherwise have gone to the full-time employees or even to additional full-time employees who needed a job. Thomas hired the part time firemen because it was good business. As we have shown, they worked for $3 an hour and entailed no expense to Thomas for fringe benefits such as hospitalization, profit sharing, paid vacations, paid holi- days, and insurance. And in prior years, when business was down, although Thomas knew that the part-time men had other jobs, he reduced the hours of all employees although he also knew that his full-time employees did not have other jobs. He therefore, admittedly, contemplated taking the same action when he spoke to Parker on November 15. In our opinion, Thomas, who owned and headed his company, probably knew more about how to reduce payroll expenses and deal with a business slack than anyone else. We believe that he consulted Parker, a prominent labor law attorney, on November 15, primarily because there was an impend- ing Board election and Thomas prudently believed that any management move affecting employees before an election should not be taken without expert legal counsel. As in the past, Thomas contemplated making a reduction in the hours of all employees to reduce payroll expense and he was consulting Parker regarding the legal aspects of such a move at that time. From the business standpoint, in which Thomas was preeminently qualified in his own business, he had contemplated the reduction in hours as the best method for reducing payroll. We believe that Parker, in substance, advised that no step affecting employees' pay or 26 Our appraisal of Thomas as a witness was that he was not such a person, who, on November 20, made this statement although he already had decided that he was going to permanently terminate all part-time employees as soon as the election was over regardless of the outcome. We believe that Thomas did not contemplate a layoff or termination when he made the speech. 21 We have set forth additional reasons for this conclusion at an earlier point. status be taken until after the election. If Parker also made a suggestion that an alternative to hours reduction was a layoff, he was not telling Thomas anything Thomas did not know. The method of reducing business costs before an election by reducing hours entailed no particular labor law aspect at that juncture. The important labor law aspect was to take no action affecting the employees just before the election. We believe that Parker advised Thomas along such lines. It is our opinion that Thomas did not make a decision on November 15 to terminate the part-time employees 27 but that the gist of Parker's advice was to make no move regarding employees in reducing payroll costs before the election. As we have seen, Respondent, on the eve of the November 21 election, had considerable confidence that the outcome would be adverse to the Union. Included as a source of such confidence was the not unreasonable belief that the part-time firemen28 would vote against the Union because they had indicated awareness of what Thomas had told them, to wit, the Union would require the elimination of part-time help, and the firemen had indicated that they were not prepared to vote for something that would cost them their jobs. However, the vote in the election was 14 for the Union and 5 against. We do not know if anyone knew who the five employees were who voted against the Union or, "for the Company," as the "no" vote against the Union was colloquially described. We are satisfied, however, that Dock Foreman Webb believed that his informant, who had accurately predicted the numerical count in the election before the ballots were tallied, knew not only the number of men who had voted against the Union but knew their identity, which he revealed to Webb. The latter was so impressed by the information that he had received that he promptly relayed it to Thomas on November 21. Thomas was equally impressed since the official tally did jibe with Webb's pretally information. None of the five employees named to Webb and Thomas as having voted for the Company and against the Union included the names of the part-time employees. It would therefore require little reflection to conclude that the part-time employees and others had voted for the Union. Thereafter, Respondent filed objections to the election. The purpose and the objective of election objections is to have the election set aside and have a rerun election. The objections achieved their objective or were well on their way to fruition, when, on December 4, the Union signed a stipulation agreeing that the election be set aside and a rerun be held.29 There is no indication in the record that the Union or the Company had any reason to believe that if conditions remained the same and if a rerun election was held among the same electorate as that of November 21, the result of the second election would be different from that in the first election. On December 8, however, the part-time 28 Full-time firemen who worked part time for Respondent. 29 Thomas testified that in "the first part of December" he conferred with his attorney and they decided to lay off the part-time employees. His attorney then asked, "Does December the 4th ring a bell?" Thomas said yes, it was on December 4 that they made the decision. Exactly why December 4 rang a bell the witness did not say. Respondent signed the stipulation for a rerun election on December 9 and the Regional Director approved the stipulation on that date. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were notified of their "permanent" layoff, effective December 11. This permanent layoff was, in effect, a termination and as such would make the part-time employees ineligible to vote in the rerun or a potential rerun election. Although Respondent, as in the past, could have reduced its payroll costs as effectively by reducing all working hours as by terminating part-time employees, it chose the latter course in 1969 for the first time. Respondent could have reduced the hours of all employees by the same percentage or it could have made a proportionately heavier reduction in the hours of part-time employees as compared to full- time employees. If for some business reasons, not readily apparent, Respondent was convinced that there had to be a layoff of part-time employees and not a reduction of hours, it could have laid off the part-timers with the rather normal understanding that they would be recalled if, and when, business picked up. Business slackened every year in November and December and thereafter began to improve. The year 1969 was no exception. From December 1968 to January 1969, the improvement in business was about $3,000; from December 1969 to January 1970, the improvement was $3,200.30 However, if the part-time employees were simply temporarily laid off as we have described, they would have been eligible voters in the rerun election. This possibility was eliminated, therefore, by telling the part timers that they were "permanently layed off" (sic). Respondent, in its brief, states that by laying off the part- time employees, the employer simply did what Crandall had been told by the union attorney would happen under a union contract. There was of course no union contract at the time of the layoff. Also, Thomas had assured the employees in a November 20 speech, in an appeal to reject the Union, that "I can assure the part-time employees their jobs will not be eliminated because I will not agree to such a [union] condition." Moreover, the union attorney had told Crandall that "if there were to be a reduction in force due to slow work," the part-time employees would be laid off first but would be recalled when work picked up. This would be a temporary, not a permanent layoff. As we see it, Crandall evidently believed and, correctly from past history, that since Respondent had always reduced hours when work was slow and had not had a reduction in force, the condition for the layoff of part-timers would not exist. It was only "if there were to be a reduction in force" that the layoff would occur under the union. There was no indication that if work was slow, the Union would require a reduction in force rather than a reduction in hours. And as we pointed out, Thomas said that there would be no layoff of part-time help, regardless of rumors as to what the union might demand. Upon all the evidence, including Respondent's business statistics and evidence of the circumstances preceding the terminations, and the remarks of Webb to Crandall that .. you shouldn't have lied to Spud [Thomas] about how you was going to vote" and Webb's remark that "Charlie Miller voted for the Union because he can always get a job in a filling station for a dollar an hour ," the Examiner finds that the five part-time employees were terminated on December 11, 1969, because of their union or suspected union activity. We believe that Respondent believed that these employees had voted for the Union in the November 21 election and that it terminated them in order to eliminate their prounion votes in the prospective rerun election. Absent the union situation, we believe that the part-time employees would not have been terminated but that working hours would have been reduced, as in the past, in order to deal with the business decline; or, if there was a layoff, it would have been temporary in nature and not "permanent." Accordingly, we find the permanent layoff or terminations of Crandall, Crawford, Miller, Slater, and Stephens on December 11, 1969 to have constituted violations of Section 8(aX3) and (1) of the Act. The Section 8(a)(1) Conduct In our opinion, the conversation between Webb and Miller around October 1969, in which the former asked if Miller had "heard anything about this business about the Union" and Miller said he had heard about it but that he and other part-time employees considered themselves ineligible to vote; and Webb assured him that as a regular part-time employee he was eligible to vote, was not illegal under Section 8(a)(1). The initial inquiry and what followed, in our opinion, was of a very tenuous inquisitorial nature and was not coercive overall. The conversation between Thomas and Crandall on November 5, 1969, described earlier in our decision, does, in our opinion, contain some illegal aspects. Among such aspects was the statement by Thomas that he had heard that "You fellows went down and signed up in the union last night." In context and in the circumstances this, in our view, was, in effect, accusatory and an interrogation as to whether Crandall and the other firemen had in fact signed up in the Union. We are also of the opinion that Thomas' question, after Crandall expressed his own views regarding voting for or against the Union, as to "how some of the other boys felt about it [the union]," constituted illegal interrogation in violation of Section 8(a)(1) of the Act. It is alleged that Thomas, on November 5, 1969, threatened to discharge employees if a majority voted for the Union. The evidence, described previously, is that Thomas, in substance, told Crandall that if the Company was obliged to sign a contract with the Union, the Union would force the Company to terminate part-time employees by reason of certain union contract provisions. Crandall was aware of such provisions in union contracts and said so. Later, in a speech to all employees, Thomas said the Company would not agree to any union demand for the termination of part-time employees. Overall, we do not sustain the complaint allegation aforedescribed. Even initially, Thomas did not state that the Company, as a reprisal, would discharge part time employees if the Union secured a contract. Any termination would be due to 30 About the middle of January 1960, Respondent hired two new working every day when they had been in Respondent's employ, they employees. This at least indicates that there was more work available in alternated in twos, so that at least two men were working substantially a January. As to one of these men, Thomas testified that he wanted a full- full day every day. time employee in Amarillo . Although the four firemen were not each THOMAS CARTAGE, INC purported union contract requirements regarding part-time employees. Crandall, in effect, acknowledged awareness of such union contract clauses. And, later, as we have seen, the Company said it would not agree to such union demands. We find that Webb, as more fully described previously, gave an impression of surveillance to employees Crandall and Miller when he told them that he knew how they had voted in the election. We find that this constituted a violation of Section 8(a)(1) of the Act. Election Objections and Challenged Ballots The second election was held on February 19, 1970. Briefly summarized, there were six votes cast for the Union, six votes against the Union, and nine challenged ballots. Objection 1. Board Field Examiner Brown, who had investigated the unfair labor practice charge against the Employer and who took affidavits in the course of the investigation, was also the Board agent who conducted the election.31 Employer contends that since Brown got to know supporters of the Union in the course of the investigation, "it is impossible to convey to nonunion supporters the fact that the Board Agent is an impartial observer to assure a fair election" and that "the mere presence of Board agent Brown at the polling place destroyed the laboratory conditions and the high standards the Board relies upon... . Since both the Union and the Employer had official observers present with Brown during the election and since no improper conduct occurred, we are of the opinion that the rationale or theory of the objection is not a convincing reason for sustaining the objection and that Brown's prior role, and the fact that he had met and knew some employees, did not destroy the conditions for a fair election. The objection also states that the Employer will show that Brown was greeted by the known union leader on the dock immediately after the closing of the first voting period, in view of other employees, and in such a manner, that it would add to employee suspicion that Brown was not an impartial observer at the poll but was there as a friend of the Union. No evidence was introduced before the Trial Examiner that there was any greeting by an unidentified or other known union leader at any time. The only evidence presented to us was that Brown left the polling area with the union observer and the employer observer together. Objection 2.32 "The Employer objects to the conduct of union attorney, Tom Upchurch, and Union Representative, B. Cherryhomes, by campaigning with a group of employees who were waiting outside of the polling place to vote when the polls were open. Such action occurred in full view of other employees who were working around the warehouse. Star Expansion, 67 LRRM 1420; Mitchem, 67 LRRM 1395." No evidence with respect to the foregoing objection was introduced before the Trial Examiner. Regarding objections 1 and 2, on the evidence presented 31 We are not setting forth the objections verbatim The objections are to be found in GC Exhibit I(g) 32 Set forth verbatim 33 Factually, January 28, Wednesday, was the end of one of the Employer's payroll periods The preceding payroll period ended January 167 to the Trial Examiner, the latter recommends that the objections be overruled. The challenged ballots Employees Crandall, Slater, Stephens, Miller, and Crawford were challenged as voters by the Board agent since their names were not on the eligibility list for the second election. These were the 5 employees discharged on December 11, 1969. Since we have found that they were illegally discharged, it is recommended that the challenges be overruled and the ballots counted. Webb was challenged as a voter by the Union observer on the ground that Webb was a supervisor. Since we have found that Webb was a supervisor, we recommend that the challenge be sustained. Bradley and Moss were challenged as voters by the Union observer on the ground that they had been hired after the cutoff date for eligible voters. The Board in its Direction of Second Election ordered that the eligible voters were "those in the unit who are employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election by the Regional Director." The Notice of Second Election was issued by the Regional Director on January 28, 1970.33 Bradley was hired January 17, 1970, but since he had to give notice to his employer, he did not commence work until January 26. Moss was hired January 16 and commenced work on January 26. The Notice of Second Election was sent to the parties with a letter from the Regional Director, dated January 28, 1970. The letter stated: Attached is one copy of the notice of Second Election. ... According to Board policy in a rerun election, the eligibility date is the payroll period immediately proceeding the date of issuance of the Notice of Election by the Regional Director. Therefore, since the Notice of Election is issuing today, eligible to vote will be those employees who were employed during the payroll period immediately preceding January 28, 1970. The Notice of Election (i.e. the Notice of Second Election),34 which was sent to the parties on January 28 and copies of which were eventually posted prior to the election, stated, inter alia, Those Eligible To Vote: All drivers of the employer at its Amarillo and Dumas, Texas, locations, who were employed during the payroll period ending immediately preceeding January 28, 1970. The wording used by the Board in its Order and Direction of Second Election of January 7, 1970 in declaring who was eligible to vote, and the wording used by the Regional Director in his January 28, 1970, letter above, in describing those eligible to vote, are substantially the same, to wit, (in the Board's order), "those in the unit who 21 The payroll period following the period ending on January 28 would end on February 4. 34 The actual notice was headed "Notice of Election" although it was the notice of Second Election 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are employed during the payroll period immediately preceeding the date of issuance of the Notice of Second Election by the Regional Director"; and (in the Regional Director's letter), "the eligibility date is the payroll period immediately preceeding the date of issuance of the Notice of Election by the Regional Director". However, in the Notice of Election itself, there is a difference in wording in the statement as to who is eligible to vote, to wit, drivers "who were employed during the payroll period ending immediately preceeding January 28, 1970 (underscoring ours)". It is the Examiner's opinion that the Board's Order and Direction of Second Election is the controlling determina- tion of voter eligibility. The Regional Director is to issue thereafter a Notice of Second Election. In our opinion, in the instant case, the actual Notice of Election issued by the Director on January 28 is not only different in wording from the Board's description of eligible voters but the difference in wording resulted in an eligibility standard different from that set forth by the Board. The Notice of Election by the insertion of the word "ending" eliminates Bradley and Moss, employees on the payroll and currently employed before January 28. They were employed and working on January 26, but the payroll period ended at the close of the day on January 28 and therefore they were not employed during the payroll period ending immediately preceding January 28, the latter being the date of the issuance of the Notice of Election.35 The Board, of course, in establishing eligibility, could have inserted the word "ending" in its description; or the Board could have said that the eligibles are "those employed in the payroll period immediately preceding the payroll period in which the Notice of Second Election is issued; or, those employed during the payroll period completed immediately proceeding the date of issuance of the Notice of Election. But the Board has not used any of the foregoing language and, in our opinion, if the Board intended to establish eligibility along the foregoing lines it would have, and should have, used the appropriate language. It is our opinion that as an original proposition, which it no longer is, it could be argued that in directing a rerun or second election, the two most tenable dates for eligibility would be either the eligibility date of the first election or the current payroll, the latter embracing all those working before the date of direction of the second election. Eligibility determined as of any intermediate point or one intermediate point rather than another has little or nothing to commend it, in logic or otherwise. The Board, except under possibly some highly unusual circumstances, has long since decided not to use the original (or first election) eligibility date. For many years now, the Board has used the language used in the instant case in describing eligibility i.e. those employed during the payroll period. immediately preceding the date of issuance of the Notice of Second 35 Presumably, their ballots would not have been challenged if the Notice of Election had issued on January 29 because then they would have been employed during the payroll period "ending immediately preceding January 29." Although we believe that the Notice of Election in the instant case was issued in the ordinary course of business and was not influenced by extraneous factors, the interpretation that eligibility as defined by the Board means the payroll ending before the Notice of Election issues Election by the Regional Director. The date of issuance of the Notice of Second Election has, in our opinion, only one function. It is a cutoff date to disqualify those hired and employed on the payroll after the date of the notice, the cutoff date. Such a cutoff date is necessary to prevent padding and accretion to the payroll right up to the day of polling, with evident problems of inadequate lists for checking eligible voters, and problems whereby no reasonable access to the voters would be possible during a preelection period. In our opinion, the cutoff date, the Notice of Second Election, is not intended to, and does not, cut off employees in the unit who are employed and on the payroll before the cutoff date. What logic would there be to declare eligible only those employed at least 2 or 3 weeks before the Notice of Second Election; why not 4 or 5 weeks or 1 week; or, in terms of payroll, why those on the payroll just before the payroll in which the Notice of Second Election issues; or those on the payroll ending before the date of issuance of the notice; why not limit it to a payroll 3 or 4 weeks before the Notice of Second Election or some other period. On its face, in our opinion, the Board' s language, "those ... employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election", means that anyone on the current payroll, who is employed before the Notice issues, is eligible since he is employed during the payroll period immediately preceding the Notice. The language does not say the payroll period immediately preceding the payroll period in which the Notice issues; nor does it say those employed during the completed payroll period immediately preceding the date of the Notice and, as indicated above, we perceive no reason why it should. In addition to what we believe is the plain meaning of the Board's language and the logic of the situation, the Board has made it clear that its language, in describing eligibility for a rerun election, refers to a current payroll. Thus, in Socony-Vacuum Oil Company, Inc., 84 NLRB 969, the Board in its Second Direction of Election declared those eligible were employees "employed during the payroll period immediately preceding the date of this Second Direction of Election. ..." In its decision, the Board stated: "In directing a new election after setting aside the results of a previous election, it is the Board's practice to specify a current payroll . . . to determine eligibility to vote ...."36 We perceive nothing that can more aptly be described as "a", or "the", current payroll, or as the payroll during which employees "are employed during the payroll period immediately preceding the date of the issuance of the Notice of Second Election," than the existing and current payroll on which employees are working and are employed before the Notice issues. Accordingly, we introduces an element of possible fine tuning into the situation . We believe that the simpler and more accurate interpretation of the Board 's eligibility definition is: those who are employed during the then current payroll at the time the Notice of Election issues are eligible. 36 There was a second election in International Shoe Co., 87 NLRB 479, and the Board commented that "... the selection of a current payroll was consistent with Board practice and custom...." THOMAS CARTAGE, INC. 169 recommend that the challenges to the ballots of Bradley and Moss be overruled and the ballots be counted.37 In the consent agreement for the first election, it was agreed that the election "will be a combination mail- manual balloting election." The election embraced unit employees at the Company's Amarillo and Dumas, Texas, locations. The Notice of Election, inter alia, stated that it was a mail-manual election and set forth the time and place of election, the latter being the Company's office-ware- house in Amarillo on November 21, at specified hours. It was stated further, in the Notice, that employees at Dumas, Texas, will receive ballots through the mail. Instructions about marking and mailing the ballots in envelopes provided, so the ballots would reach the Board office not later than November 18, were set forth. Voters were advised that "mail ballots will be mixed with the manual elections ballots and counted on November 21 at the close of the manual election in Amarillo, Texas." It was then stated that "all other employees [except those at Dumas] will vote at the time and place shown above [Amarillo, on November 21 ]. The Notice of the Second Election for February 19, 1970 was the same as the original notice except as to the difference in dates, e.g. the date of election was February 19, and mail ballots were to be received in the Board office in Fort Worth, Texas, not later than February 17. Campbell was a unit employee in the Employer's Dumas, Texas, office and, according to the Regional Director's Report on Objections and Challenges, Campbell was one of the employees who was sent a mail ballot from the Regional Office on February 10, 1970, "but did not return the mail ballot to the Regional Office, but instead appeared at the physical polling place [in Amarillo] on the date of the election and cast a challenged ballot at that time." There is no evidence that Campbell had not received his mail ballot and no evidence was introduced as to why he did not vote by mail.38 In the Trial Examiner's opinion, it was the understanding and contemplation of the parties, including the Employer, the Union, and the Regional Director of the Board, that, as provided in the original consent election and the Notice of Election thereof and in the second election, and the Notice thereof, the election was to be a combination mail-manual election. The Dumas employees were to vote by mail and such mail ballots were to be returned to and received by the Board no later than a specified date, several days before the date of the manual election. Other than the Dumas employees, all other employees were to vote manually in Amarillo.39 There was no provision to the effect that Dumas voters had the option of voting by mail or by appearing in person at Amarillo and voting manually. The Examiner recommends that the challenge to Campbell's ballot be sustained. Although we believe that adherence to the terms and conditions of the election is sufficient reason for sustaining the challenge, we will consider the matter from a different perspective. First of all, no reason has been advanced why Campbell did not vote by mail, so the ingredients for an approach along a situational ethics line are missing. If it be said that there is no harm done if he votes manually and that the casting of a vote is more important than any rules or regulations, we will consider several factors. We do not know the actual situation but, conceivably, there could be 2 voters at Dumas. One mails his ballot to the Board on February 15 or 16 so that it reaches the Board on February 17, as required. The other, through indiffer- ence or negligence, does not mail his ballot at any time. At the end of the day on February 17, the Board and the parties should reasonably be able to assume that one Dumas voter has not voted. But, conceivably, one party or friends of the non-voter, can, on February 17 and 18, be in contact with the voter and urge him to vote a particular way and advise him to come to Amarillo on February 19 and vote manually. It is highly unlikely that both parties on either side of the election issue would have campaigned to this voter on February 17 and 18 on the theory that they all allegedly knew that the Dumas voters had the option to vote either by mail or manually. Perhaps, if there are two eligible voters at Dumas and neither votes by mail because of negligence or indifference, one thereafter votes manually in Amarillo because he had transportation, whereas the other voter lacks transportation, or has family obligations that prevent him from going to Amarillo on February 19. The foregoing situations as to campaigning and transporta- tion would also be conceivable if there was only one eligible voter at Dumas. The Employer, in his brief, has submitted the following regarding the Campbell ballot: The only way the Company can have an effective observer for a mail ballot election is to observe the date stamp on the back of the mail ballot envelopes to assure they were received in the Regional Office before the deadline and to observe the opening of the envelopes. In the instant matter, it would be impossible for the employer to assure himself that Campbell did not send in a mail ballot and later have someone from the Regional Office to destroy the ballot. There is no evidence that this happened nor is the employer accusing anyone of the Regional Office of being in collusion with the Union in this respect. The employer does insist, however, that he has the right to be assured that such a possibility could not occur and the sanctity of the ballots and voting is upheld. As stated, we recommend that the challenge to Campbell's ballot be sustained. 37 In view of the position we have taken, we find it unnecessary to resolve the disputed contention of the attorney for the Employer that he had an understanding with the Board agent that employees employed at the end of the January 28 payroll period would be eligible voters However, since the Examiner realizes that the view he has expressed on the eligibility matter, above, is not an infallible position and is subject to review, we will state our position regarding the testimony of employer attorney Parker and field examiner Marks Notwithstanding what we consider to be the good faith of both individuals and Parker's belief that he did have an understanding with Marks regarding the eligibility of two employees, we are not persuaded that there was in fact a full meeting of the minds We believe that there was an honest misunderstanding and that neither individual was responsible for the misunderstanding or for the absence of a full meeting of the minds 38 The Notices of Election, in addition to contents that we have previously described, stated If you are employed at Dumas, Texas and believe you are eligible to vote and do not receive a ballot in the mail by 4 45 p in February 12, 1970, please communicate by telephone collect with [the NLRB, Fort Worth, code, and telephone number] 39 Dumas is about 48 miles from Amarillo In the first election there were 19 eligible voters and 19 votes were cast As far as appears, the Dumas voters cast their ballots by mail There were no challenged ballots 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW Respondent is an employer engaged in commerce within the meaning of the Act. By discriminatorily terminating employees Crandall, Crawford, Miller, Slater, and Stephens on December 11, 1969, Respondent violated Section 8(a)(3) and (1) of the Act. By conveying to employees the impression that Respon- dent was engaging in surveillance of their union activities and by illegally interrogating employees regarding union activities, Respondent violated Section 8(a)(1) of the Act. THE REMEDY It will be recommended that Respondent cease and desist from engaging in the aforementioned illegal conduct. The conventional remedy is also recommended with respect to the four discriminatees who were terminated in December, 1969, and rehired in March 1970; namely, that Respondent pay them the wages that they would have earned from the date of their termination in December 1969, to the date of their reinstatement in March 1970, with interest at the prevailing rate in the area, and less intermediate earnings, with computations on a quarterly basis. As to Miller, it is recommended that he be offered reinstatement to his former or a substantially equivalent job without prejudice to his seniority and other rights and with back pay from the date of his termination in December 1969 to the date of the offer of reinstatement and with interest, and less intermedi- ate earnings, with computations on a quarterly basis. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, it is recommended that Respondent and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership and activity in Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 577, or in any other labor organization by discriminatorily discharging any of its employees. (b) Illegally interrogating its employees regarding union sentiments or activities or giving the impression that it was engaging in surveillance of employees' union sentiments or activities. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Pay James A. Crandall, Lloyd M. Crawford, Milton E. Slater, and Bobby M. Stephens the wages they lost by reason of their discharge on December 11, 1969, until the date of their rehire in March 1970, in accordance with the recommendation as set forth in this Decision under the heading, "The Remedy." Offer Charlie A. Miller reinstate- ment to his former or a substantially equivalent job, with all his seniority and other rights and pay him the wages lost from the date of his discharge in December 1969 to the date of the offer of reinstatement as more fully described in this Decision under "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its Amarillo, Texas, and other terminals, copies of the attached notice marked "Appendix."40 Copies of said notice, on forms provided by the Regional Director, Region 16, after being signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.41 40 In the event no exceptions be filed as provided by Section 102.46 of the Rules and Regulations of the Board, the findings , conclusions, recommendations, and Recommended Order herein, shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order be enforced by a judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELA- TIONS BOARD." 41 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which the Company and the General Counsel of the National Labor Relations Board participat- ed through their attorneys and examined and cross- examined witnesses and presented evidence, it has been recommended by the Trial Examiner who heard the evidence and the witnesses that we inform you that: WE WILL not discourage membership and activity in the Teamsters Union, Local 577, or in any other labor organization by discriminatorily discharging or laying off any of our employees. WE WILL NOT illegally question our employees regarding their or other employees' union sentiments or activities, nor will we give the impression that we are engaging in surveillance of our employees' union sentiments or activities. WE WILL pay James A. Crandall, Lloyd N. Crawford, Milton E. Slater, and Bobby G. Stephens the wages they lost by reason of their layoff and discharge on December 11, 1969, until the date of their rehire in March 1970. ,WE WILL offer Charlie A. Miller reinstatement to his former or a substantially equivalent job, with all his THOMAS CARTAGE, INC. 171 seniority, rights and privileges, and WE WILL pay him This is an official notice and must not be defaced by the wages he lost from the date of his discharge in anyone. December 1969, to the date of our offer of reinstate- This Notice must remain posted for 60 consecutive days ment. from the date of posting and must not be altered, defaced, THOMAS CARTAGE, INC. or covered by any other material. (Employer) Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, 8A24 Dated By Federal Office Building, 819 Taylor Street, Fort Worth, (Representative) (Title)' Texas 76102, Telephone 817-334-2921.