The Lynn Pacific Corp.

THE LYNN PACIFIC CORP. The Lynn Pacific Corporation and Line Drivers Local Union No. 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and The Lynn Pacific Corporation Employees' Committee, Party to the Contract. Case 20-CA-5787 December 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 2, 1970, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed limited exceptions and a reply 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, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified below. 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 and hereby orders that Respondent, The Lynn Pacific Corporation, Union City, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Insert the following as paragraph 1(e) of the Recommended Order, and reletter the following paragraphs accordingly: "(e) Giving effect to, performing, or in any way enforcing its contract, or any modifications, exten- sions, or renewals thereof, or any other contract, agreement, arrangement, or understanding entered into with Lynn Drivers Association, or any successor, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of 589 employment; provided, however, that nothing in this Decision shall be construed to require the Respondent to vary or abandon any wages, hours, seniority, or other substantive feature of its relations with its employees which the Respondent has established in the performance of said contract, or to prejudice the assertion by employees of any rights they may have thereunder." 2. Substitute the following as paragraph 2(a): "(a) Offer to Ron Gewecke, Floyd Alexander, Lonnie Hadden, and John Freitas immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled `The Remedy.' " 3. In footnote 24 of the Trial Examiner's Decision substitute "20" for "10" days. 4. Substitute the attached notice for the Trial Examiner's notice. These findings are based , in part, upon credibility determinations of the Trial Examiner to which the Respondent has constructively excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Line Drivers Local Union No. 468, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America, or any other labor organization, by discharging employees or demoting or reducing the pay of employees, or modifying the seniority list because of their activities on behalf of the Union, or by discrimi- nating against employees in any other manner in regard to hire or tenure of employment or any terms or conditions of employment , or by recog- nizing the Lynn Pacific Drivers Association. WE WILL NOT threaten employees with loss of employment or benefits because of their support of the Union or any other labor organization. WE WILL NOT promise benefits or give benefits to employees because of their refusal to support the Union or any other labor organization. WE WILL NOT interrogate our employees with respect to their union activities or the union activities of other employees. WE WILL NOT enforce or give effect to our 187 NLRB No. 66 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement with Lynn Driv- ers Association or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement, but we are not required to vary or abandon any wages, hours, seniority, or other substantive features established in the performance of the contract, and our employees may still assert any rights they may have under the contract. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in their rights to self-organization or collective bargaining. WE WILL offer Ron Gewecke, Floyd Alexander, Lonnie Hadden, and John Freitas immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay they may have suffered by reason of the discrimination against them. WE HEREBY withdraw recognition from the Lynn Pacific Drivers Association. THE LYNN PACIFIC CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415- 556-5017. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: This case was heard in San Francisco, California, on April 14 and 15, 1970.1 The complaint alleges various acts of restraint and interference on the part of Respondent together with the I The initial charge was filed on October 13, 1969, and an amended charge was filed on December 8, 1969 The complaint was issued on alleged discriminatory discharge of four employees under varying circumstances, all in violation of the National Labor Relations Act, as amended, herein the Act. Upon the entire record in the case and the briefs filed by the parties, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE JURISDICTION OF THE BOARD Lynn Pacific Corporation, herein Respondent, a Califor- nia corporation with a place of business in Union City, California, is, and at all times material has been, engaged in the manufacture, warehousing, and sale of school supplies. Respondent annually transports from Washington and Oregon into the State of Calforma products valued in excess of $50,000 per year. Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Line Drivers Local Union No. 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein the Union, or Teamsters Union, is a labor organization within the meaning of the Act. The Lynn Pacific Drivers Association is, and at all times material herein has been, a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES I The Issues There are numerous incidents claimed by the General Counsel to be violations of the Act. Included are acts of interference and restraint and the discharge of four employees, who were truckdrivers for Respondent. The principal area of dispute concerns the reasons for the termination of these four men. They were discharged on different dates and allegedly for different reasons. With respect to the alleged unlawful interferences with employees' rights protected by the Act, a substantial amount of the evidence is undisputed. Included are promises of benefits, threats of loss of jobs depending on the outcome of an NLRB election as well as encouragement and assistance in forming the Lynn Pacific Drivers Association, an employees' association as a rival to the Charging Union. Respondent contends that since the amended charge was filed more than 6 months after the discharge of two of the drivers, that the question of their discharge is barred by the 6-month limitation period in Section 10(b) of the Act. In opposition to this the General Counsel argues that this is a typical case of a charge relating back, since the initial charge recited that the Respondent was being accused of violating Section 8(a)(3) of the Act, and, further, that the original charge recited that Respondent had modified the December 24, 1969 THE LYNN PACIFIC CORP. 591 seniority system, and this was the device used to terminate the two men whom Respondent claims are barred from having their claims considered, and consequently the amended charge merely states more definitely the contents of the initial charge. Respondent also contends that its offer to settle the portions of the case, aside from the ones involving the discharge of employees, should have been accepted and that it was prejudicial to Respondent to be refused this procedure. The General Counsel was agreeable on the condition that Respondent would admit the allegations. This Respondent refused to do. Respondent's motion at the hearing to sever the discharge cases was denied on the basis that the evidence would be parallel to that offered in support of the remaining allegations of unfair labor practices. A review of the transcript has confirmed that the same evidence would have been admissible on the discharges as was introduced for the balance of the allegations in the complaint, and that Respondent was not prejudiced by refusal of its offer to settle the balance of the complaint. Further, Respondent's contentions that litigat- ing the allegations, aside from the ones involving the discharges, would entail a burden with respect to extra time in litigation, were not well founded. 2. Background Lynn Boomershme is the president and majority stockholder of Respondent corporation. He acts as plant manager, salesmanager, office manager, and makes mana- gerial decisions. He was also instrumental in developing his own trucking organization which is the segment of Respondent's operation mainly involved in this proceeding. Respondent, according to Boomershine, owns two or three pieces of trucking equipment, and all the rest is under a 5- year lease with no termination provisions. The significance of this, according to Boomershine, is: "Well, once we have committed ourselves to go into trucking in the beginning of 1967 we were in it until 1972." Respondent's truck fleet operated in the western United States. The trucks are used to bring raw materials to Union City, California, and to deliver the finished products in the form of tablets, notebooks, and similar materials. Boom- ershme, in the course of his testimony, explained that Respondent's business is very seasonal with the bulk of the business between April and September. The slowest season is the winter months of December and January. One of the bases of dissatisfaction of Respondent's 2 This driver was Lonnie Hadden Prior to the election conducted by the National Labor Relations Board on May 3, 1969, Boomershine gave Hadden and two other drivers, Alexander and Gewecke, $125 Prior to this they had never been advised by Boomershine that they would receive this amount of money after the winter months when their workweek was reduced The check stub which accompanied the payment of $125 to these three drivers who were all alleged to have been discharged illegally, contained this entry. "TO MAKE UP FOR PREVIOUS DEDUCTIONS THANK YOU FOR YOUR HELP" 3 The president of the Union is no relation to John Freitas, one of the alleged discrimmatees 4 Unless otherwise indicated, all dates herein are 1969. 5 Boomershine denied telling any drivers he would go out of business This denial is not credited nor is Boomershine's testimony credited where it conflicts with findings based on the testimony of credited witnesses Boomershine's witness chair manner and demeanor, as well as the content drivers grew out of an event occurring approximately in January 1969. At this time, Boomershine instituted a system whereby the drivers would work reduced hours. This system resulted in at least one of the drivers working a full week and receiving a half of a week's pay.2 Respondent had two types of drivers, one being the "line driver" who made the long trips out of town or out of State and usually drove diesel trucks. The other type was a "short haul" driver or local driver who made local trips. The work of this latter type of driver was harder and paid less, according to Boomershine. At the time of the hearing there was one driver classified as the local driver on the seniority list. All four of the alleged discriminatees were line drivers. In February or March 1969, several of the line drivers made their first contact with the Union. The four drivers alleged to have been discriminatorily discharged were Ron Gewecke, Lonnie Hadden, Floyd Alexander, and John Freitas. Hadden first contacted the Union and then in company with Gewecke, Alexander, Freitas, and the local driver, Don Tracy, met with Al Appelbaum, secretary- treasurer of the Teamsters, and Ernie Freitas, president of the Union .3 During this meeting the drivers signed union authorization cards. Following this meeting the union officials were unsuccessful in attempting to speak with Boomershine in person or by telephone. After having left his business card with Boomershine's secretary when Appelbaum sought to contact Boomershine by telephone, he would be asked to identify himself by a secretary and, after so doing, would be informed Boomershine was unavailable. 3. Unlawful Interference; Violations of Section 8(a)(1) and (2) of the Act. Driver Gewecke saw Union Secretary-treasurer Appel- baum and Union President Freitas in Respondent's parking lot in mid-March of 1969.' On the following day, Boomershine called Gewecke into his office and showed him Union Secretary-treasurer Appelbaum's business card. Boomershine asked Gewecke if "these" (sic) were friends of his. Gewecke replied in the negative. Then Boomershine told Gewecke if he were forced to go into the Teamsters Union or sign a contract with them, that he couldn't afford to pay the union wages and benefits for everybody concerned and would have to sell the equipment and lay off the drivers. Boomershine also asked Gewecke "who all" had gone to the Union, and Gewecke did not respond.5 On April 4, petitions for an election to be conducted by the of his testimony, did not establish him as a careful or reliable witness Boomershine testified he had one line driver at the time of the hearing on April 15, 1970 Prior to Boomershine's testimony, Respondent's counsel at the hearing had offered Gewecke reinstatement upon the condition that his California license was reinstated It was also mentioned that consideration was being given to the unconditional offer of reinstatement to the alleged discnminatees , Hadden and Alexander, prior to the close of the hearing. At one point in his testimony, Boomershine claimed he resented Hadden and Alexander not coming back to work and then later testified he could get along well with one line driver. At another point in his testimony Boomershme also stated he expected all his drivers to remain with Respondent; that he was disappointed they didn't ask for theirjobs back. These testimonial twists and turns are magnified by his other statement that he was obligated to be in the trucking business until 1972 because he had leased the equipment with no termination provisions . Much of his (Continued) 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board were filed by the Union and by Respondent. On April 17, a consent-election agreement was approved by the Acting Regional Director of Region 20. The election was conducted on May 3, and a certification of the results was issued by the National Labor Relations Board on May 12. Prior to the election Boomershine interrogated Alexander and Hadden concerning the Union at approximately the same time that Gewecke was asked by Boomershine as to whether he knew Appelbaum. He showed Appelbaum's card to Alexander and asked him if he knew him or if he was a friend of his. Alexander told Boomershine he knew Appelbaum but that he wasn't particularly a friend of his. Boomershine also asked Alexander if he knew who had gone to the Union, and Alexander responded that he did not know everybody who had gone. About the same period, when Mario Gonfiotti6 was present, Boomershine showed Lonnie Hadden a union business card for Local 468, and asked him if he knew these guys. Hadden replied that he did. Boomershine then asked Hadden who contacted the Union, and Hadden told him that he had done so and all the drivers had signed pledge cards.? Boomershine replied to Hadden that he couldn't stand to have the Union in there, he would sell the trucks, close the place down, and fire all the drivers. Boomershme also asked Hadden why they went to the Union. Hadden told him it was for insurance purposes and for the way the drivers were being treated. Hadden also told Boomershine that Osgood, the truck dispatcher, was giving them a bad time. Boomershine asked Hadden if it would help if he got a new dispatcher, and Hadden replied that it might. On March 28, Boomershine gave Gewecke, Hadden, and Alexander each a check for $125. The check stub carried the notation "TO MAKE UP FOR PREVIOUS DEDUC- TIONS.THANK YOU FOR YOURHELP." In the previous winter the drivers had not been told they were ever going to receive any additional money from Boomershine when they were on a shorter week schedule and in the case of Hadden, at least, had performed work for which they were not paid. After the Regional Director had approved an election on April 17, scheduled to be held on May 3, Boomershine held testimony is marked by prolixity and inconsistencies which often appeared calculated to create confusion rather than to lend clarity to the subjects at hand 6 There are two memoranda in the record from Boomershine which, at least for correspondence purposes, place Mario Gonfiotti in the same level of the hierachy of Respondent as Earl Osgood Osgood was a dispatcher along with other functions and was a supervisor within the meaning of the Act. Gonfiotti was concerned, at least in part, with the mechanical maintenance of the trucks, and, if not a supervisor , stood at least in a responsible relationship with Boomershine This relationship of Gonfiotti assumes significance in connection with the discharge of Gewecke allegedly for not having a valid California driver's license 7 Russ Brown, the stepson of dispatcher Earl Osgood, had not signed a card and had not attended the meeting with the union representative along with the other drivers Boomershine denied Hadden had told him he had gone to the Union as well as that the drivers had signed pledge cards, and that he threatened to sell his trucks if the Union came in For the reasons set forth above, Boomershine's denials are not credited 8 Osgood was the warehouse superintendent and dispatcher for Respondent in the discussion previously mentioned that Boomershine had with Hadden in the parking lot, Osgood was the dispatcher to whom Boomershine referred when he asked Hadden if it would help if he got rid of the dispatcher a breakfast meeting on April 19, for his drivers along with a couple of warehousemen. This was the first and last breakfast meeting held by Respondent. Either at the breakfast meeting or in Respondent's parking lot after the meeting, the undenied credible evidence establishes that Boomershine made the following statements to the drivers including Hadden, Gewecke, Alexander, and Freitas. Boomershine suggested it would be a good idea for the drivers to form their own organization within the company instead of going to the Teamsters Union. At this time he also stated if he were forced to go through the Teamsters Union he would have to lay off the drivers, sell the trucks, and send the freight by common carrier. However, if the drivers were to form their own association, Boomershine said there would be no perma- nent layoffs and that a rotation system would be worked out so no one would be permanently out of work. Boomershine also stated to Respondent's drivers that he was sure he and the drivers could work out a health insurance plan. After hearing the above statements of Boomershine about the adverse effects of having the Teamsters Union represent them and the beneficent prospect of having their own association, the drivers agreed to write up contract proposals to present to Boomershine. Within a few days, not exceeding seven, the drivers held a meeting in which they discussed and agreed to the formation of an employee association. Ron Gewecke was appointed spokesman and Lonnie Hadden was appointed alternate spokesman. A list of proposals was formulated for presentation to Boomershine. On the following day Gewecke presented the proposals to Boomershine who read them and agreed to discuss them with Earl Osgood.8 At this time Boomershine stated to Gewecke that the drivers could probably have a better contract by having their own organization than going through the Teamsters Union. These comments were made prior to the election and prior to Boomershine's receipt of the notice of the outcome of the election. Within a few days Gewecke's wife had typed up proposals which were presented to Boomershine.9 Later in the same week and The proposals read LYNN PACIFIC DRIVERS ASSOCIATION WAGES (LINE DRIVERS) $30000 per week as of May I except for the last two months and the Ist two months of each year, then no less than $250.00 per week LOCAL EXPENSES Company will pay all road expenses. food and lodging. VACATION One week after one year Two weeks after two years, up to 5 years, at full pay (300 00) SICK LEAVE Company will allow each driver ten non-cumulative days off with pay each year 5/1 to 4/30 LAYOFF No driver shall be terminated without just cause, which requires one letter for each offense or three letters for each 6 months for termination TIME OFF Each driver shall have a minimum of 48 consecutive hours off every two weeks DISPATCH I .Each driver shall know by 5 p in. Friday evening (sic) for a Sunday dispatch with no alteration from original order, except in the THE LYNN PACIFIC CORP also prior to the National Labor Relations Board election, Boomershine gave Gewecke his counterproposals. The record suggests Respondent's principal counterproposal was an offer to raise the drivers' wages from $250 to $275 a week. When the election was being held on May 3, dispatcher Osgood told Union Representative Appelbaum, who was on Respondent's premises on the parking lot, that if the drivers voted for the Union the Company would get rid of the equipment. Osgood also expressed confidence the Union would lose the election because Boomershine had met with the drivers. On the Sunday following the election, in which the vote was four to two against the Union, the drivers held another meeting at which Boomershine's counterproposals were discussed. On the weekend of May 10-11, Gewecke and Alexander met with Boomershme and Osgood. At this meeting, agreement was reached on the pay raise from $250 to $275 per week retroactive to May 1. Boomershme cautioned the drivers that the negotiations were unlawful under the NLRB rules and because of this the pay raise would be deferred until after "final word" from the National Labor Relations Board. Boomershine was appar- ently awaiting the certification of results of election which was issued on May 12.10 4. The Unlawful Discharges Notwithstanding Boomershme's promise to avoid layoffs among the drivers and notwithstanding the fact that Respondent was at the beginning of its busy season, and notwithstanding the expression of Boomershme that he wanted to keep his "sophisticated and experienced" drivers, John Freitas was laid off on May 23. At this time Freitas was the lowest of the line drivers on the seniority list. In relevant part the seniority list at that time in descending order of seniority was as follows: Ron Gewecke, Floyd Alexander, Lonnie Hadden, Russell Brown, and John Freitas. This was not a written or posted seniority list but it was operative in determining layoffs by Boomershine, as witnessed in the case of John Freitas on this occasion, and also generally operative in connection with such matters as giving drivers choice of equipment. On June 3, a revised seniority list was posted by Boomershine as follows event of sickness 2 -All line equipment will be hooked up and expense checks will be ready by departure time 3 -All out of state runs shall be a two man operation 4 -No truck shall be dispatched out if assigned driver declares mechanically unfit TICKETS Lynn Pacific Corp will send letters to all C H P inspection stations to relieve drivers of any equipment violation INSURANCE Lynn Pacific Corp will pay the first $50 00 per employee and each member of employees (sic) family io The elimination of the drivers who had executed the union authorization cards shortly thereafter prevented them from realizing any significant benefits from the agreement executed with Boomershme, which was but a prelude to their separation from Respondent's employ, and not a precursor of increased employee benefits n Freitas was first employed at Lynn Pacific on May 12, 1967, and worked until May 15, 1968 He was laid off by Osgood's predecessor until SENIORITY LIST LINE DRIVERS RON GEWECKE March 4, 1967 JOHN FREITAS May 12, 1967 ROGER MONROE August 2, 1967 RUSS BROWN September 8, 1967 FLOYD ALEXANDER February 13, 1968 SONNY HADDEN May 4, 1968 LOCAL DRIVERS DON TRACY 593 The significant change in the new seniority list insofar as the issues here are concerned was to put John Freitas and Russ Brown ahead of Floyd Alexander and Lonnie Hadden, two of the drivers more likely to have been regarded by Boomershine as the union "instigators." The events leading to the revised seniority list com- menced with the layoff of John Freitas on May 23. Boomershine had received a certification of the results of the NLRB election on or about May 12. Within a short time after his layoff on May 23, Freitas came to see Boomersh- me. Freitas was incensed that Boomershine should have instituted layoffs after he had given the drivers reason to believe that voting against the Teamsters would avoid any layoffs. Freitas also claimed that his seniority status should be immediately below that of Gewecke.1' Boomershine seized on the claim of Freitas that his seniority should not be affected by the period he did not work in 1968 in order to manipulate the seniority list. He told Freitas that an alteration in the seniority list would give him a chance to get rid of the union "instigators." Boomershine also requested and received a promise from Freitas that the conversation would go no further. Boomershine then wrote a letter which Freitas copied and which was addressed to Boomershine ostensibly in support of Freitas' claim that his seniority should be revised.12 In his testimony Boomershine also claimed that Russell Brown made his complaint about seniority before Freitas did. Whether or not this is correct is open to question, but in any event Boomershine put Brown on the line drivers' seniority list ahead of Hadden or Alexander even though July 22, 1968, when he was rehired and worked until May 23, 1969. He was reinstated on June 9, 1969, and worked until August 22, 1969, when he was terminated allegedly for his union association 12 The letter which Boomershme wrote for Freitas is as follows Mr Lynn Boomershme Lynn Pacific Corporation This is a complaint against you, and the Lynn Pacific Corporation You have laid me off because you have stated, I am at the bottom of the seniority list I was fired from my job without good reason and should have not lost my seniority rights The records show that I came to work May 15, 1967 1 should have my seniority based on this date Ken Lopez was not justified in firing me It was without just cause, based on his personal grudge against me As a loyal employee. I demand that you reinstate me on the payroll in my Proper Position as number 2 Driver Sincerely. John Freitas 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown had been a local driver at the time Alexander and Brown were in the employ of Respondent as line drivers.13 Having rearranged the seniority schedule, Boomershine then addressed himself to the elimination of the union "instigators" Gewecke, Alexander, and Hadden. The complaint as amended alleges that Hadden was discharged on or about June 1 and that Alexander was constructively discharged on or about the same date. Gewecke was discharged on or about June 13, and Freitas was discharged on or about August 22. The last man on the revised seniority list was Lonnie Hadden. Hadden was the driver who had admitted to Boomershine that he had originally contacted the Union. This in all likelihood would make Hadden eligible to be regarded by Boomershine as one of the "instigators" marked for liquidation. In late May, when Hadden returned from a trip, he saw Freitas and Brown who told him about the changes in the seniority list. Hadden then went in to see Boomershine and told him he did not think it was right for Freitas to be put ahead of him and if Brown had been a line driver, for seniority purposes, Boomershine should pay him retroac- tively for line driver wages. Boomershine apparently ignored this latter suggestion but stated Freitas had written him a letter and offered to show it to Hadden. Hadden replied he didn't want to see the letter and it was none of his business and Boomershine told Hadden, "That's the way it is, you're on the bottom of the list." Later that day, Earl Osgood, Respondent's dispatcher, telephoned Hadden at his home and said, as credibly related by Hadden, "He dust told me Lynn Pacific Corporation could not use me any more. I was at the bottom of the list and somebody had to go and that was me." This layoff, as previously noted, was during Respondent's busy season and at a time when Respondent had trucks under lease until 1972 with a no-termination provision. It occurred within a few weeks since Boomershine had held out the prospect of avoiding layoffs except presumably possible in the winter months and on a rotating basis if the drivers would reject the Union. Hadden was never recalled by Respondent. The next target of Boomershine was Floyd Alexander who, along with Gewecke and Hadden, was apparently regarded as one of the union "instigators." These three drivers were the ones Boomershine had quizzed about being friends of the union representative and to whom he had shown Union Representative Appelbaum's business card. They also were apparently the ones whose favor he had attempted to curry by giving them a gratuity of $125 prior to the NLRB election. On or about June 1, about the same time Hadden was laid off, Alexander received a telephone call from Osgood who told him he was reduced to casual local driving. Boomershine admitted in his testimony that local driving was the toughest and paid less. Alexander was told by Osgood that his wages were being cut from $275 to 13 In his testimony Boomershine stated that it was the custom of line drivers to receive line drivers' pay irrespective of whether they were doing local driving. Boomershine admitted in the case of Brown it was a different situation, that he was receiving local drivers' pay during the period that Boomershme used to compute his line drivers' seniority This disparity in treatment is consistent with the fact that Brown was dispatcher Earl Osgood's stepson and the only line driver who did not sign a union $200 per week. To make the job even less desirable, Osgood told Alexander that he would only be used when needed and that if he was not used he would not be paid. Alexander told Osgood that he could not live with that situation. Nevertheless he agreed to take a short line route the following Monday. On that Monday, Alexander went to Respondent's premises to carry out his assignment and look for the truck called the "Black Jimmie." The truck was not on Respondent's premises apparently as part of the design to insure that the working conditions would be so intolerable that it would be impossible for Alexander to do any work for Respondent. Alexander did not work for Respondent after this event.14 Gewecke was the most senior line driver after Hadden and Alexander had been removed from Respondent's payroll. In order to keep Brown while discharging Gewecke, Respondent contrived a reason for his discharge which was demonstrably fictitious. On June 13, Boomershine discharged Gewecke allegedly because he did not have a California driver's license. An examination of the circumstances attending this alleged reason strengthens the finding that as a witness, Boomersh- me was unreliable as well as fortifying the proposition Gewecke was fired because of his union activities. His determination to eliminate union sympathizers and particu- larly the union "instigators" led him to use a thinly veiled pretext in the case of discharging Gewecke. According to Boomershine, when Gewecke was em- ployed prior to his employment with Respondent, he had incurred some fines for vehicle equipment violations on which these prior employers defaulted and the financial burden developed on Gewecke. In early 1969, the outstanding fines approximated $1000 to $1500. Gewecke explained the situation to Boomershine when his California license expired in April and he was laid off temporarily. In order to have his California license reinstated, it was required of Gewecke that these fines be paid. Gewecke discussed the situation with Mario Gonfiotti. As previously noted, judging from correspondence in the record, Gonfiotti occupied a relationship to Boomershine similar to that of Osgood. Gonfiotti, on Gewecke's behalf, made telephone calls to the California Highway Patrol or California Motor Vehicle Department, and Respondent's insurance broker. They all informed Gonfiotti that it would be permissible for a driver to work for Respondent with an out-of-state license. In Gewecke's presence, Gonfiotti informed Boomershine that he had made the calls to the Highway Patrol, the Motor Vehicle Department, and Respondent's insurance broker, and that it would be legal for Gewecke to go out of State and get a license. Thereupon Boomershine and Osgood arranged for Gewecke to go on the next trip to Portland, Oregon, where Gewecke's sister lived. Gewecke rode with Floyd Alexander and on this occasion he obtained a temporary license . He later returned to Oregon with Alexander, obtained a permanent license, authorization card 14 Osgood in his testimony claimed that Alexander's truck was loaded and sitting at the dock all day He admitted he did not call Alexander and did not call anyone else Osgood's testimony in this regard is rejected as inherently incredible and is also rejected based on his witness chair demeanor THE LYNN PACIFIC CORP. and showed this to Boomershine and Osgood . From this time until his discharge Gewecke continued to drive with the Oregon license . This period was from April until June 13, when he was discharged. On that date after Gewecke returned from an out-of-state trip, Boomershine called him into his office and explained he could not keep him on because he didn 't have a valid California license . Boomershine also showed Gewecke a purported letter from his insurance broker. The document contained Gewecke's name but had no letterhead and recited that the insurance would be terminated because of a non-California license . That this letter was fictitious is demonstrated by Boomershine's reluctant concession on cross-examination as follows: Q. Did Mr Vaughn [Boomershine's insurance broker] tell you that you could not be insured if one of your drivers was operating with an out of state license? A That's not Mr. Vaughn's position.15 The failure of Respondent to produce the document mentioned by Gewecke, and the failure of Boomershme's insurance broker to corroborate the contention of Boom- ershine that he was advised by his insurance broker to terminate Gewecke, buttresses the finding that the document to which Gewecke referred was fictitious. Gewecke told Boomershine it would take approximately $1000 to pay off the outstanding tickets in order to get his California license reinstated . Boomershine told Gewecke that he would like to help him but he did not have that much money In connection with Gewecke's discharge, Respondent relies on a memorandum of March 21 , in which Boomersh- me states that it is the policy of Respondent to operate totally within the law.is It is noteworthy that it was after this memorandum that Mario Gonfiotti had assured Boomershine it was legal for Gewecke to drive with an out- of-state license, and that Gewecke did so from April to June . In this connection it is also noted that it was 15 The more complete statement of Boomershine on this subject is as follows Q Did you have any notification of any kind that it was improper for Mr Gewecke to drive on an Oregon license'' A In going over the fact that I had a man on my payroll that was not legally licensed, and after I had spent time in this Federal Building on Federal and criminal charges involving truck drivers and lost within the last year, I was discussing my insurance problems with my insurance program man and he mentioned that I did have a man driving that was not legally licensed and he merely supported and gave me the courage or the guts to do something that I hadn't done Q Who were you talking to, Mr Boomershme" Who was the insurance man you were talking to" A Jim Vaughn of Vaughn and Blake Q Did you speak to him by telephone" A I don't recall, possibly by phone Q And what did Mr Vaughn tell you" A Mr Vaughn said that-he informed me that he was not running my business but that it was my duty, my obligation as the manager of the firm to take precautions and make sure that we were operating within the law r • • r Q And again, Mr Vaughn told you that it was your responsibility to act within the limits of the law, is that correct" A That's substantially correct Q Well, where do we vary it" Perhaps you could more fully explain what Mr Vaughn told you A Mr Vaughn's obligation is to insure us, he also has the obligation as a friend to try to keep me insured and if he, as he did, he indicated to me that I should work within the law, protect my 595 Boomershine himself in April who had to be reassured about the legality of Gewecke's driving with an out-of-state license because he had laid Gewecke off temporarily until the legality of using an out-of-state license could be established, and thus until such license was obtained. Since Boomershine reinstated Gewecke with an out-of-state license after his memorandum of March 21, no credibility attaches to Boomershine's claim that the discharge of Gewecke in June was in accordance with the policy of that memorandum. On the contrary, Boomershine's action in reinstating Gewecke shortly after he issued his memoran- dum of March 21 demonstrates his recognition that Gewecke's Oregon driving license was consistent with his policy of operating within the law. Moreover, one of the sources reassuring Boomershine that the operation with an out-of-state license was legal was his own insurance broker who Boomershine claimed caused him to question the legality of Gewecke's using an out-of-state license.17 The circumstances attending the discharge of John Freitas on August 22 are more complex than in the cases of the discharges of Hadden, Alexander, and Gewecke. In connection with the latter three, Boomershine's antiunion motivation was clearly evident as a factor in their termination. Respondent did not produce any reason for the discharge of Hadden nor for the constructive discharge of Alexander, and the alleged reason for the discharge of Gewecke was clearly pretextual. After Freitas was laid off on May 23, approximately 10 days after the NLRB election, he was told by Boomershine that manipulation of the seniority list, including a favorable placement of Freitas, would enable Boomershine to get rid of the union "instigators." The agreement between Freitas and Boomershine on this occasion to keep the conversation confidential suggests that at this date at least Boomershine and Freitas were to some extent acting in concert.18 Respondent contends Freitas was discharged on August 22 because of a fine he got for an overload on his truck in insurance Q Did Mr Vaughn tell you that you could not be insured if one of your drivers was operating with an out of state license? A That's not Mr Vaughn's position 16 The memorandum read March 21, 1969 TO ALL THE DRIVERS We want it definitely understood that the Lynn Pacific Corporation will not tolerate any drivers breaking any state or federal laws while in the course of making deliveries in company trucks It is the company's intent to operate totally within the law as to driving practices, times, hours, speed, etc Nothing will be asked to be performed which cannot be performed within the applicable laws It is the drivers responsibility to budget his time and begin each driving period at the right time-early enough to do the job legally. If the driver is asked to perform a job which will break the law, he must make a point of this as soon as possible No one will give orders which will knowingly break the law THE LYNN PACIFIC CORPORATION Lynn Boomerhine President cc Earl and Mario Boomershine's claimed concern for operating within the law was not evidenced when he was negotiating with his employees while a question of representation was pending and when he cautioned them that it was illegal for him to be dealing with them and for this reason he could not institute a pay raise until the results of the NLRB election were announced is That Boomershme was capable of using Freitas for his short term advantage with the ultimate aim of disposing of him later is consistent with (Continued) 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oregon, and also because he took his wife with him on a trip. Freitas testified that in the week before his discharge he was sent to Oregon to pick up 36 rolls of paper. The equipment that Freitas was originally going to use broke down and he was required to take a two axle rather than a three axle vehicle, which could only accommodate a smaller load. When Freitas arrived in Oregon he advised Osgood by telephone that he could not legally load the 30 rolls of paper that were available instead of the 36. Osgood told Freitas he needed the rolls and to bring them anyway.19 On his return to California, Freitas received a citation in Oregon for an overload of 5600 pounds on the front axle and a fine of $392. It was an established practice with Respondent that if a driver was told by the dispatcher to bring a load that was overweight, the Respondent would pay the fine. This was conceded by Boomershine in his testimony. Further, the plausibility of this is suggested by the willingness of Respondent to operate an illegally-loaded vehicle on the highway. For example, immediately preceding the trip to Oregon, Osgood conceded that he had instructed Freitas to drive an illegal load in California. Further, the cost of sending a driver and a rig to make the approximately 1500 mile round trip to Oregon would be undoubtedly less than the $392 represented by the fine. Osgood claimed that the truck could have been loaded legally, and Freitas claimed it could not. It does not seem possible on this record to reach absolute certainty, nor is it necessary to resolve this question. One item of testimony that suggests that it could not have been loaded legally is that Freitas credibly testified without contradiction that when he returned and told Osgood he had received a fine, Osgood asked why he didn't try the fifth wheel and Freitas told him that it would not have done any good, and Osgood did not respond. The version of Freitas' that Osgood told him to bring the truck even though loaded illegally, appears more credible. Since the Respondent was on notice that the load was illegal, it was its obligation to pay the fine under its uniform practice and in accordance with the testimony of Boom- ershine. After Freitas returned from the Oregon trip he left the ticket for the $392 with Osgood and was dispatched on a trip to Los Angeles. On his return he requested his wife to pick up his check and she was advised by Osgood that Freitas had been fired. Freitas immediately went to Respondent's premises and Osgood told him he had been fired because of the illegal load. When Freitas confronted Boomershine with this, Freitas told Boomershine that Osgood had given instructions to bring the illegal load and that it was a practice for Respondent to pay the fine in these circumstances. Boomershine told Freitas that he should have called him when he first knew the load would not be legal. This undenied credited statement of Freitas indicates that Boomershme by implication accepted the proposition Boomershine's probing with Hadden as to whether the drivers might be disabused of their inclination towards unionization if Boomershme got rid of his dispatcher , Osgood 19 Osgood testified he drew a diagram for Freitas before he left for Oregon to show him how to load the truck legally This seems highly doubtful since the rolls vary in weight from 700 to 1200 pounds. and that Freitas had been instructed by Osgood to bring in an illegal load. It further indicates that the fact that Freitas brought his wife with him on the trip was not a reason for his discharge since nothing was said by Boomershine at this time about Freitas' wife. Freitas responded to Boomershme that he did not telephone Boomershine because in the past these problems had been handled by the dispatcher. Boomershme then informed Freitas if he wanted to work for Respondent he would have to pay the fine and Frettas refused. Boomershine refused to give Freitas his paycheck until he paid the fine.20 To support his claim made at the hearing for the first time that the fact that Frettas took his wife with him on the trip was a secondary reason for his discharge, Boomershine referred to a memorandum which he had issued on February 23, 1969, which read as follows: THE LYNN PACIFIC CORPORATION 333 Western Ave., Union City, Calif. 94587. Phone (415) 471-5411 February 23, 1969 ATTENTION: Marto & Earl You are to advise anyone other than yourselves & the truckers and anyone I refer to you that company policy dictated by our insurance company prohibits in all cases the driving for personal use, any of our cars, or trucks. NO EXCEPTIONS. Insurance company says must have Class I License and be checked out on our driver education and training program. NO EXCEPTIONS - Turn everyone down. Lynn Boomershine This interpretation does not appear to necessarily exclude taking a passenger if the driver is performing company business. In addition to the above memorandum as a purported basis to establish a rule against drivers taking their wives with them on trips, Boomershine gave some other testimony on this question. He had testified that he functioned as president, sales manager, office manager, plant manager, majority stockholder, and maker of managerial decisions. In response to a question as to whether he had instructed the drivers not to take their wives with them, he demonstrated his capacity for overstatement. "I spend half my time going over simple rules and regulations, including not taking wives on equipment. I went over that with every driver over and over again." Contrary to Boomershtne, the testimony of Freitas, that Boomershme did not personally tell him not to take his wife on trips is credited. In all likelihood Boomershine was highly displeased when he learned of the $392 fine imposed on the illegal load being driven by Freitas. His displeasure at incurring this liability Osgood testified that he told Frettas to pick up 35,000 to 36,000 pounds and not a number of rolls Further, Freitas credibly denied that Osgood drew him a diagram as to how the two axle truck should be loaded 20 The record does not indicate whether or not Freitas ever received his paycheck THE LYNN PACIFIC CORP. would have been more logically directed towards Osgood except, that consistent with the discharge of the other union supporters, Boomershine directed his anger at Freitas and used the incident as an occasion to rid himself of the last union supporter among his drivers and the last one who knew about the promises on which he had reneged that he had made to the drivers. These promises, along with the threats, had been made prior to the NLRB election and were successfully aimed at causing the drivers to reject the Union 21 In summary, it is found that the probabilities predomi- nate in favor of a finding that the association of Freitas with the Union played a part in the motivation of Boomershine's decision to discharge him. As previously indicated, it was Osgood rather than Freitas who was responsible for the overload fine and it is uncontroverted that Boomershine did not mention as a reason for Freitas' discharge, that his wife went with him on a trip when he was fired, but brought it up for the first time at the hearing. Further, Osgood stated that Respondent was lenient in the matter of the drivers' taking their wives with them at the time of Freitas' discharge, thus negating Boomershine's claimed interpretation of his memorandum of March 21 and his testimony that he had personally instructed the drivers over and over again against taking their wives with them. Boomershine had demonstrated his willingness on one occasion to discharge Freitas because of his union association. He did this within a few days after the NLRB election and during the peak season of Respondent's business. Hadden had told Boomershine all the drivers (including Freitas) had signed authorization cards, and Boomershine had evidenced deep antipathy to the Union by the threats and promises he made prior to the NLRB election. Discharging Freitas because of his union associa- tion and on the pretext that the fine was the cause is consistent with the pretextual nature of the prior termina- tion of Gewecke. Further, Freitas was the last driver in Respondent's employ who had signed a union authoriza- tion card and who had personal knowledge of Boomersh- ine's promises to improve conditions if the drivers avoided the Union. 5. The Question of Whether a Charge was Timely Filed in Connection with the Discharge of Hadden and Alexander and the Alleged Violation of Section 8(a)(2) Section 10(b) of the Act provides in relevant part that: ... no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.. . . In this matter the initial charge was filed on October 13, 1969. It cited that Respondent had violated Section 8( a)(1), 21 During the course of his testimony, Freitas displayed that he was capable of becoming angry with little provocation It is probable that Boomershme correctly guaged Freitas' reaction to his insistence that Freitas pay the $392 fine as a condition of employment Since this had not been the practice in the past, it was the understandable reaction of Freitas to refuse this condition Freitas had already been discharged by 597 (3) and (5) of the Act. The charge also contains the following recital: Within the past SIX MONTHS the employer has failed and refused, upon the charging party's request, to recognize it as the representative of its employees at the time when the majority of the employees had designat- ed the Union as its representative. Following the request for recognition and during the course of the representation election campaign, in Case No. 20-RC-8713 the employer threatened reprisals, prom- ised benefits, and made modifications in the seniority list of the employees, all for the purpose and with the effect of persuading the employees to vote against the Union. On December 8, 1969, a first amended charge was filed which eliminated a citation of Section 8(a)(5) and added a citation of Section 8(a)(2) and continued the citation of violations of Section 8(a)(1) and (3) of the Act. The first amended charge contains the following amplified recitals: During the course of a representation election cam- paign in Case No. 20-RC-8713 the above employer threatened reprisals, promised benefits and made modifications in the seniority list of the employees, all for the purpose and with the effect of persuading the employees to vote against the Union. Within the past 6 months the above employer has interfered with the formation and administration of and has dominated an employee committee or association functioning as a labor organization. On or about the dates stated below the above employer discharged the following employees because of their support for an affiliation with the charging party. LONNIE HADDEN 5/29/69 RON GEWECKE 6/11/69 JOHN FREITAS 10/1/69 On or about June 1, 1969, the above employer constructively discharged FLOYD ALEXANDER because of his affiliation with and support for the charging party. Respondent contends that because of the phrase "all for the purpose and with the effect of persuading the employees to vote against the Union," the discharge of Hadden and Alexander on or about June 1, 1969, is barred because their discharge occurred more than 6 months prior to the filing of the amended charge on December 8, 1969. Inasmuch as the initial charge filed on October 13, 1969, alleges Respondent violated Section 8(a)(3) of the Act, and also alleges Respondent made modifications in the seniority list of its employees, and inasmuch as Hadden and Alexander were fired by the modality of Respondent modifying its seniority list, it is clear the initial charge was adequate on which to base a complaint including the unlawful discharge of Hadden and Alexander. Respondent and the condition set out by Boomershine at this time was in all likelihood made with the conviction that Freftas would not accept it and it was also probable if Freitas had accepted , another pretext would have been produced to insure that no driver who had been aware of Boomershine's conduct and promises in connection with the union election would remain on Respondent's payroll 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's argument makes the gratuitous assumption that the phrase above quoted is one of limitation. The function of a charge is to initiate Board action and is not intended to serve a "notice purpose" as does the complaint in the case here. N.L.R.B v. Fant Milling, 360 U.S. 301. The amended charge here clearly related to and defined more precisely the violations of Section 8(a)(3). As the General Counsel correctly points out in his brief, a 10(b) question is not involved here with respect to the alleged violations of Section 8(a)(3), but rather the question of whether the amended charge relates back and more clearly defines the alleged violations of Section 8(a)(3) cited in the original charge. The answer here is clearly in the affirmative and there was a timely charge filed with respect to the discharge of Hadden and Alexander.22 Another compelling reason for not regarding the quoted phrase as a limitation on the citation of Section 8(a)(3) in the initial charge is that it results in an absurdity. The election was held on May 3 As the Respondent was well aware, the modification of the seniority list occurred after the election. It was posted by Respondent on June 3. An assertion that Respondent was under the impression from the charge that the modification of the seniority list was only alleged to affect the NLRB election is, to say the least, unrealistic . Further, the initial charge has the standard recital "By the above and other acts the above-named employer has interfered with, restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act." This recital in the initial charge was more clearly defined and amplified in the amended charge, by specifying the employees fired for antiunion reasons. With respect to the inclusion of an alleged violation of Section 8(a)(2) for the first time in the amended charge more than 6 months after the events occurred, similar considerations apply. In the first charge it is alleged Respondent "promised benefits and threatened reprisals." These were made on the condition and in connection with Respondent's urging the employees to form their own association. Hence, inclusion of a recital of the facts constituting a violation of Section 8(a)(2) in the first amended charge clearly relates back and more precisely describes the conduct of Respondent's alleged violations in the initial charge. In Exeber, Inc. v. N L.R.B., 390 F.2d 127 (C.A. 9), the court set out guidelines not only for adding additional alleged discriminatees, but also for inclusion of violations not named in the charge at page 129: The holding of these decisions may be summarized thus: (1) A complaint, as distinguished from a charge, 22 In N L.R B v Gaynor News Company, Inc, 197 F 2d 719 (C A 2) (affd 347 U S. 17) at page 721 This section has been uniformly interpreted to authorize inclusion within the complaint of amended charges-filed after the six months' limitation period-which "relate back" or "define more precisely" the charges enumerated within the original and timely charge The "relating back" doctrine for this purpose has been liberally construed to give the Board wide leeway for prosecuting offenses unearthed by its investigatory machinery, set in motion by the original charge N L R B, v Kobritz, I Cir, 193 F 2d 8, 14-16, Cusano v N L R B, 3 Circ, 190 F 2d 898, 903-904, N L R B v Kingston Cake Co, 3 Cir, 191 F 2d 563, 567, Kansas Mill Co v N L R B, 10 Cir, 185 F 2d 413, 415 Thus a general allegation in the original complaint that the employer had interfered with employees in the exercise of their § 7, 29 need not be filed and served within the six months, and may therefore be amended after the six months. (2) If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) occurred within six months before the filing of the charge. 6. Discussion and Concluding Findings As reflected by the above, in the spring of 1969, when Boomershine learned of union activity he took immediate and forceful illegal steps to discourage union organization among his drivers, He made several threats to close down his business and sell his trucks. He told the drivers he couldn't afford to pay union wages. He interrogated his drivers as to their connection with the Union and how the employees might vote. He attempted to influence the election by giving employees money gratuities, holding a special breakfast meeting, and holding out the prospect of increased benefits if the employees voted against the Union. He negotiated with the employees' association when the NLRB election was scheduled and indicated he was aware he was breaking the law in this respect. After the NLRB election, Boomershine, within 2 weeks, commenced to eliminate the four drivers who he knew executed union authorization cards, and had supported the Union. Although it was the busy season for Respondent's trucking business, no reason was given for the layoff of Hadden and the demotion of Alexander. In the case of Gewecke and Freitas, pretextual reasons were used for their discharge. Boomershine's assertions that he needed his experienced and sophisticated drivers and wanted to keep them, and his statement that Respondent was operating with leased trucks until 1972 without termination provisions, and the fact that Hadden and Alexander were terminated in the busy season for no stated reason are additional significant factors supporting the finding that Hadden was "laid off" and Alexander was constructively discharged and Gewecke and Freitas were fired because of their union association and activities. Finally the testimonial manner of Gewecke, Hadden, Alexander and Freitas, in contrast with that of Boomersh- me and Osgood, reflected integrity and consistency in all matters of substance and their testimony is credited in support of the material findings made herein, including their termination because of union activities. U S C A § 157, rights by restraining and coercing them, discriminating in regard to hire and tenure and refusing to bargain in good faith, was subsequently-more than six months after the date of the alleged violation-amended to allege discharges of particular employees for legitimate union and strike activities Kansas Milling Co v NLRB, 10Cir, 185 F 2d 413, 416 Similarly in N L R B v Pearson, Inc, 243 F 2d 456 (C A 5) at page 458. [2[ It is familiar procedural law in cases of this kind that the complaint is the first technical "pleading," and that the charge simply sets in motion the investigation to determine whether or not the complaint shall issue Technical precision is not, therefore, required in the charge, and it is sufficient if it informs the alleged violator of the general nature of the violation charged against him and enables him to preserve the evidence relating to the matter THE LYNN PACIFIC CORP 599 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: V. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act 2. Line Drivers Local Union No. 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of the Act. 3 By the discharge of Ron Gewecke, Lonnie Hadden, and John Freitas, and by the constructive discharge of Floyd Alexander, because of their union activities, Respondent has discriminated against them to discourage membership in the Union and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the encouragement of the employees to form the Lynn Pacific Drivers Association for collective bargaining with Respondent, by participating in negotiating sessions with them, and by executing an agreement with them, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5 By the following acts, Respondent has interfered with, restrained, and coerced employees and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by: (a) Threatening employees with layoff or discharge if they selected the Union as their bargaining representative (b) Threatening employees that Respondent would close its plant, sell its trucks, and contract out the employees' work if they designated the Union as their collective- bargaining representative. (c) Interrogating employees with respect to their union activities and the union activities of other employees. (d) Promising employees improved working conditions if they refrained from designating the Union as their collective-bargaining representative. (e) Granting wage increases because employees refrained from giving assistance or support to the Union. 6. The aforesaid unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the purposes of the Act. It will be recommended that Respondent offer to Ron Gewecke, Floyd Alexander, Lonnie Hadden, and John Freitas immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by paying to each a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of reinstatement less net earnings during such period in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest as in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent be ordered to cease and desist from the types of activities found herein. and any other violation of the Act together with the affirmative actions specified in the recommended Order. Respondent's conduct in interfering with the rights of its employees was extensive, flagrant, and deliberate and manifested a disregard for any of the rights of employees guaranteed by the Act. Because of the likelihood Respon- dent would commit further unfair labor practices in view of the disposition so evidenced on this record, a broad cease- and-desist order will be recommended. On the basis of the foregoing findings of fact and the conclusions of law and the entire record herein, it is recommended that pursuant to Section 10(c) of the Act, the Board issue the following: ORDER Respondent Lynn Pacific Corporation, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Line Drivers Local Union No. 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees by discharging, demoting, or reducing the pay of employees or revising any seniority lists of employees because of their union activities, or in any other manner discriminating against employees in regard to hire or tenure of employment or any terms or conditions of employment. (b) Making any threats to employees with respect to curtailing Respondent's business and loss of employment by employees if the employees gave support to the Teamsters Union or any other labor organization. (c) Promising employees any benefits conditioned on the employees' withholding support from the Teamsters Union or any other labor organization. (d) Interrogating employees about their union activities or the union activities of other employees. (e) In any manner recognizing or dealing with the Lynn Pacific Drivers Association. (f) In any other manner, interfering with, restraining or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action: (a) Offer to Ron Gewecke, Floyd Alexander, Lonnie Hadden, and John Freitas immediate and full reinstate- ment to their former or substantially equivalent positions, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the manner set forth in the section of this Decision entitled "The Remedy." (b) Withdraw recognition from the Lynn Pacific Drivers Association by posting the notice set forth in paragraph (d). (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records and 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 Order. (d) Post in conspicuous places at its offices in Union City, California, including all places where notices to employees are customarily posted, copies of the notice attached hereto as Appendix.23 Copies of said notice on forms provided by the Regional Director for Region 20 of the National Labor Relations Board, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of a copy of this Decision what steps Respondent has taken to comply herewith.24 23 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations 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 is 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 RELATIONS BOARD" 24 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith "