Howard Hall Co., Inc.

HOWARD HALL COMPANY, INC. Howard Hall Company, Inc. and Teamsters, Chauf- feurs and Helpers Local No. 79, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 12-CA-4006 June 21, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 21, 1968 , Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a brief in support thereof, counsel for the General Counsel of the Na- tional Labor Relations Board filed an answering brief to the exceptions and brief filed by the Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's excep- tions and brief, the brief of the General Counsel, and the entire record in the case , and hereby ' The Trial Examiner found a copy of the petition was mailed by the Board to Respondent at its Tampa. Florida, terminal and came into the hands of Terminal Manager McDaniel Morgan, who thereupon told the two employees in the unit, Morrell and Carlton, that if they had come to him prior to joining the Union and told him they were thinking of it, he could have guaranteed them that Vice President Hall, Jr., would have given them a raise to keep them from joining the Union. The Respondent con- tends that this comment resulted from Supervisor Morgan's surprise when he received the petition and excepts to the Trial Examiner's conclusion that Morgan already knew of the Union's request for recognition. The Trial Examiner inferred prior knowledge based on the statement in the petition filed by the Union (Case 12-RC-2933), that the Union had requested recognition from Respondent on October 12, 1967, and it was declined on October 13, 1967. However, in the absence of any showing as to the person to whom the request was addressed, we find no basis for an inference that Morgan had prior notification of the Union's request . Nevertheless, and re- gardless of his possible surprise on receiving the copy of the petition, we find that his comments constituted a violation of Sec. 8(a)(I) of the Act. ' The Respondent has excepted to the credibility findings made by the Trial Examiner. It is our established policy, however, not to overrule a Trial 172 NLRB No. 4 17 adopts the findings,' conclusions,2 and recommen- dations3 of the Trial Examiner , as modified below. As we have found that the Respondent engaged in numerous unfair labor practices violative of Sec- tion 8(a)(1) and ( 3) at the same time the Union requested that an election be conducted to deter- mine its majority status, we agree with the Trial Ex- aminer that a bargaining order is proper. Respon- dent's conduct had the effect of destroying the very conditions needed in order for a fair, election to be held. As the Respondent has completely rejected the collective-bargaining principle , and sought to undermine and dissipate the Union 's majority, and as the Union represented 100 percent of the em- ployees in the appropriate unit , only such an order can adequately restore as nearly as possible the situation which would have existed but for the Respondent's unfair labor practices . Accordingly, we shall adopt the recommendation that the Respondent be ordered , upon request, to bargain with the Union in the unit found appropriate. Mock Road Super Duper, Inc., 156 NLRB 983, 986, enfd. in relevant part 393 F .2d 432 (C.A. 6). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Howard Hall Company, Inc., Tampa, Florida, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified: Add the following immediately below the signa- ture line of the Appendix attached to the Trial Ex- aminer's Decision: Examiner's resolution with respect to credibility unless the clear preponde- rance of all the relevant evidence convinces us that the resolutions were in- correct. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C .A. 3). We find no such basis for disturbing the Trial Examiner's credibility findings in this case. I We find no ment in the Respondent's contention that the claimed unit is inappropriate because Morrell was a confidential employee and hence the unit consisted of only one individual The Respondent did not raise this contention at the hearing herein when the issue of Morrell's confidential status could have been litigated ; the evidence is not newly discovered; and the Respondent asserts no fact which shows that Morrell was working for or assisting or acting in a confidential capacity to persons who formulate, determine, or effectuate management policies in the field of labor rela- tions. The Respondent contends that the Trial Examiner erroneously found that its plan to consolidate its clerical work was dependent on its securing an IBM machine. However, our adoption of the Trial Examiner's conclu- sion that Carlton was discharged in violation of Sec. 8(a)(3) of the Act in no way relies upon this factor and hence the Trial Examiner's statement, even if incorrect, is immaterial to our decision. 354-126 O-LT - 73 - pt. 1 - 3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Note: We will notify the above-named em- ployee if presently serving in the Armed Forces of the United States of her right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE freight in interstate commerce. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Teamsters, Chauffeurs and Helpers Local No. 79, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. MAURICE S. BUSH, Trial Examiner: The issues in this case are whether the Respondent Howard Hall Company, Inc., a multiterminal interstate motor carrier, is in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by reason of alleged unfair labor practices with respect to its office employees at its Tampa, Florida, ter- minal . The alleged 8(a)(1) unfair labor practices include unlawful interrogations of employees as to their union activities; promises of pay raises for abandonment of union representation; efforts to dissuade employees from adherence to the Union; indications of a more stringent attitude towards em- ployees if they chose the Union to represent them; indications that one employee might have to do the work presently performed by two employees if the Union came in; and statements that employees' desires for benefits, including a pay raise, could be worked out with the manager of Respondent's Tampa terminal if the Union were ruled out. The alleged 8(a)(3) unfair labor practice is that Respondent discriminatorily terminated an em- ployee because of her union activities. The complaint was issued on November 20, 1967, pursuant to a charge duly filed on November 1, 1967. The answer admits the discharge and raises issues only with respect to the unfair labor practices alleged in the complaint. The case was tried at Tampa, Florida, on December 13, 1967. The oral arguments made in behalf of General Counsel at the conclusion of the trial and the brief duly filed by Respondent after the close of the case have been carefully reviewed and considered. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Howard Hall Company, Inc., an Alabama corporation, is engaged in the business of interstate truck movement of freight, and maintains a number of terminals, including the terminal here involved at Tampa, Florida. The Company derives in excess of $100,000 gross revenue annually from its operations in the State of Florida, and during the past calendar year has derived gross revenue in ex- cess of $50,000 from linkage or movement of III. THE ALLEGED UNFAIR LABOR PRACTICES A. General Background Findings Respondent's basic motor carrier operations in- volves the transportation of freight between points in central Florida and Birmingham, Alabama. The Company maintains its principal office and main terminal at Birmingham. In Florida, it has terminals at Pensacola, Jacksonville, Orlando, and Tampa. The only terminal involved in this proceeding is the one at Tampa. The principal stockholders of Respondent are Howard Hall, Sr., its president, and his son, Howard Hall, Jr., its vice president. Both reside at Bir- mingham and work out of the Company's main of- fice and terminal in that city. Respondent conducts its over-the-road or interci- ty transportation through the use of independent contractors, but operates its intracity deliveries from its variously located terminals with its own employee-drivers. For such city deliveries, the Company employs 33 truckdrivers in Birmingham, 12 in Jacksonville, 5 in Orlando, about 6 in Pen- sacola, and 14 in Tampa. Respondent has hau contractual relationships with the Teamsters Union for approximately 5 years through various locals covering its terminals in Alabama and Florida. In Birmingham, Local No. 612 has three separate contracts with Respondent covering three individual units; to wit, a unit of drivers and warehousemen, a unit of garage and shop employees, and a unit of office and clerical employees. In Tampa, the Local here involved has had a contract with Respondent only with respect to a unit composed of drivers and warehousemen and covering no other employees in the Tampa ter- minal. The Tampa drivers and warehousemen were involved in a strike against the Company from July 17 to August 26, 1967, which culminated in a new contract. Hall, Jr., negotiated the contract in behalf of the Company from its principal office at Bir- mingham. Respondent's Tampa operations has experienced a steady growth of revenue and volume of freight in the past 6 years. In each of the years 1961 through 1965, the Company hired one additional driver and/or warehousemen for its Tampa terminal. In HOWARD HALL COMPANY, INC. 19 1966, Respondent hired a net of two additional drivers to work at the Tampa terminal.' The present proceeding arises out of the attempt of Respondent's Tampa office clerical employees, two in number, to organize and be represented by the above-named Union which as heretofore noted has for a number of years represented the Tampa terminal drivers and warehousemen as their exclu- sive bargaining representative. From the record it is found that the two office clerical employees employed by Respondent at its terminal at Tampa, Florida, excluding all drivers, warehousemen , and supervisors as defined by the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Sec- tion 9(a) of the Act.' B. Events Leading to and Involving the Alleged Labor Practices For the greater part of 1966 , the sole office and clerical employees in Respondent 's Tampa terminal were Norma Morrell , a woman in her early forties, and Pat Carlton , some 20 years younger. They worked under the supervision of McDaniel Morgan, manager of the Tampa terminal for the past 13 months. Morrell had been continously employed at the Tampa terminal for the past 6 years except for time off for maternal leave. Carlton worked at the Tampa terminal from October 10 , 1966, to November 14, 1967, when she was terminated under the circumstances hereinafter described. There was an informal division of work in the office between the two women with Morrell , as the older and more experienced worker, doing the more responsible work , such as making up the payroll, but in general the work was interchangeable and when one was on leave , the other took over her du- ties. Morrell receives $2.40 an hour ; Carlton was earning $1 .70 an hour at the time of her termina- tion. The two women in the early part of September 1967, after four previous unsuccessful efforts to ob- tain pay raises from Terminal Manager Morgan and Vice President Hall, Jr., walked over to the Union's headquarters , requested union membership, and signed cards dated September 7, 1967, designating the Union to represent them for the purposes of collective bargaining in all matters pertaining to wages, hours of labor, and working conditions. On the basis of the union cards from Morrell and Carlton, the Union on October 12, 1967, requested recognition from Respondent as the bargaining representative of its office employees at its Tampa terminal. The Company declined recognition on October 13.3 The Union thereafter on October 16 filed an election petition with the Board. Notice of the petition, together with a copy thereof, was mailed by the Board to Respondent at its Tampa terminal and came into the hands of Terminal Manager Morgan on or about October 17. Upon receipt of the notice Morgan purported to express surprise and shock to Morrell and Carlton with whom he shared the terminal office at their ac- tion in joining the Union.4 He thereupon questioned' the two office employees as to why they had joined the Union and asked whether their desire for more "money" had been the reason for their joining the Union. This part of his conversa- tion with the two women as related by them at the trial was admitted by Morgan in his testimony. The two employees also testified that Morgan told them in the same conversation that if they had come to him prior to joining the Union and told him they were thinking about it, he could have guaranteed that Vice President Hall, Jr., would have given them a raise to keep them from joining the Union. Although Morgan in his testimony denied that he had made such a remark, I credit the testimony of the two office employees, not only because they out number Morgan, but also because they appeared to be more sincere and forthright in their testimony than Morgan and for the further reason that the conduct of Vice President Hall, Jr., as related to the Union's representation petition, as hereinafter set forth, lends further credence to the testimony of the two employees. I further find that Morgan's above-described remarks to the two office workers were intended to convey and did convey to them the promise of a raise if they withdrew the authorizations they had given the Union to represent them in collective bargaining with Respondent. These remarks by Morgan substantiate the allegation of paragraph 5(a) of the complaint ' The above finding that two additional drivers were hired at the Tampa terminal in 1966 is based upon a resolution of a conflict of testimony Respondent's Tampa terminal manager, McDaniel Morgan , testified that only one additional driver was taken on at the Tampa terminal in 1966. Norma Morrell , the chief office and record keeper at the Tampa terminal, on the other hand, testified from her knowledge of the books and records of the Tampa terminal that two additional drivers were hired at the Tampa terminal in 1966. Because of the detailed knowledge she displayed in her testimony of Respondent 's Tampa employment records and the evident certainty of her testimony vis-a-vis that of Morgan's, the Trial Examiner ac- cepts Morrell 's testimony that the Company hired a net of two additional drivers at its Tampa terminal in 1966. S The hereinafter described discharge of one of the two employees in violation of Sec. 8 (a)(3) of the Act, did not destroy her status as an em ployee . Sec. 2( 3) of the Act. 9 These facts appear from G C. Exh. 2 ' It is doubtful that Morgan felt any genuine "surprise and shock" upon receiving a notice of the Union's representation petition in view of the fact that the petition (G C. Exh 2 ) itself shows that the Union had sough) recognition in behalf of the Tampa office workers from Respondent some days earlier and that Respondent had declined . The record supports the in- ference here found that Morgan used the petition as an excuse to talk to the two office employees in an endeavor to get them to abandon the Union ' The "questioning," here referred to, took place upon Morgan 's receipt of the notice of the representation petition and not as alleged in paragraph 5(a) of the complaint "at a time when Respondent had posted at its Tampa terminal the Board's notice that a petition for representation had been filed with the Board . " Respondent in its brief takes exception to this varia- tion between proof and allegation I regard this, and another identical variation with respect to the time when Morgan made an alleged promise of a wage increase to the employees for abandonment of the Union, as im- material variations 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which states that the Respondent by its agents and supervisors "promised said employees a pay raise if they abandoned their desire to be represented by the Union." Some 2 weeks later the Board scheduled a hear- ing in Case 12-RC-2933 for November 1, 1967, on the Union's representation petition in behalf of Respondent's Tampa office workers. Among those present at the hearing were Morgan and Carlton. Before the hearing opened, Morgan in the hearing room personally handed Carlton a letter bearing his signature in which he notified her that she would be terminated as of November 14. The text of the letter which purports to give the reasons for Carl- ton's discharge reads in pertinent part as follows: Dear Mrs. Carlton: Several weeks ago company management de- cided that after November 14, 1967, we would not need two clerical employees in the Tampa office. The most important reason for this is the fact that we have increased our supervisory personnel and think that they can now handle more of the clerical work. In addition to this we are centralizing some of our clerical work in the Birmingham office. Because of this, I must notify you that you will be permanently terminated on November 14, 1967. The company has chosen to retain Mrs. Morrell because of her experience.... As a unit for purpose of recognition under the Act must consist of a minimum of two employees, the discharge of Carlton, as one of the two sole of- fice workers employed in Respondent's Tampa ter- minal, had the effect of destroying that unit, subject to restoration, however, if the conclusion is reached in this proceeding that Carlton has been unlawfully discharged in violation of Section 8(a)(3) of the Act, and is, therefore, entitled to reinstatement. The discharge letter, served upon Carlton in the offices of the Board 's Regional Director, caused the Union to then and there file charges of unfair labor practices against the Respondent with the Regional Director which in due course led to the issuance of the complaint in the present proceeding and the is- sues herein involved as heretofore stated , including the issue of whether Carlton was unlawfully discharged because of her union membership and activities. The filing of these unfair labor practice charges against the Respondent came to the attention of the Hearing Officer in the representation case just minutes before he was scheduled to open the hear- ing therein . In consequence of this information, he adjourned the representation hearing , sine die pur- suant to prescribed practice pending the outcome of the Union's charges. About 2 weeks prior to the above events, Vice President Hall, Jr., telephoned Morrell at the Tampa terminal from the Company's headquarters at Birmingham. Morrell's testimony shows that Hall questioned her closely about her motive in joining the Union, asked if she had done so in- order to ob- tain more pay, and tried to dissuade her from ad- hering to the Union by telling her that she and Carl- ton could talk for themselves instead of paying the Union $96 a year in dues to do this for them. Although Morrell in her conversation with Hall complained that her work in the Tampa terminal had become heavier, Hall indicated to her that the office did not need two people , if the Union came in, Carlton "might be no longer with us," and the work in the office would become more stringent. There was an implication in Hall 's remarks to Mor- rell that her work would be doubled if the Union came in . Hall also told Morrell that her desire and that of Carlton for improved working conditions, including a raise in pay, could be worked out with Terminal Manager Morgan without union interven- tion. He said that he would arrange with Morgan to take Morrell and Carlton out for lunch some day soon to discuss and work these matters out in detail. As Hall did not appear at the hearing, the testimony of Morrell from which the above findings have been drawn is undisputed. Terminal Manager Morgan testified that in the summer of 1967 Vice President Hall, Jr., discussed with him some thoughts he had about transferring much of the clerical work and duties of the Tampa terminal to the Company's main office at Bir- minsham and thereby reducing the two-woman clerical force at the Tampa office to one employee. He further testified that this discussion was later followed by the decision in late August to terminate Carlton as of November 14, with advance notice to her of the termination as of November 1. He testified that although the decision to terminate Carlton was made as early as August, the Company decided to keep her on until November 14 because of the heavy backlog of office work that had accu- mulated during the course of the 6-week strike by its drivers and warehousemen during which the Company had continued to operate . He stated that there were two factors involved in the decision to terminate Carlton as of November 14. One was the reassignment of some of the clerical work to super- visors in the Tampa terminal . The other was the proposed transfer of the Tampa billings to the Bir- mingham office which was primarily motivated by the Company's plan to have centralized billing and other clerical work performed at the Birmingham office, not only for the Tampa terminal but for all of its subsidiary terminals , under some sort of IBM system then under study. He further testified that the decision to terminate Carlton as of November 14 was based on management 's judgment that these two shifts of work away from the Tampa clerical employees would have been pretty much .accom- plished by November 14. The Tampa terminal has two supervisors in addition to Terminal Manager Morgan; these are Harold Jones who has been a su- HOWARD HALL COMPANY, INC. 21 pervisor-dispatcher for the past 13 months and Cle- ment Russo who was converted from driver status to warehouse supervisor in April 1967. Morgan testified that due to these circumstances his service of the written notice of termination on Carlton on November 1 at the representational hearing just moments before it was to be started was coin- cidental. Respondent made its decision to reduce its cleri- cal force at the Tampa terminal from two em- ployees to one notwithstanding the fact that the business of the terminal had been growing substan- tially during the past 6 years in both tonnage and revenue, with a consequent steady growth of the necessary paperwork . As heretofore noted, the growth of the Tampa terminal is reflected in the fact that it has added a driver or a warehouseman in each of the 5 years preceding 1967 and added two drivers in 1967. The record also shows that Tampa's volume of tonnage and revenue increased an average of some 20 to 25 percent in 1967 as compared with 1966 , after leaving out of considera- tion the 2 months of July and August in which Respondent suffered a strike by its drivers and warehousemen and also leaving out the month of December 1967, for which figures are not availa- ble .6 In line with this growth, there has been a growth in the volume of the paperwork of the Tampa ter- minal over the years and an accompanying growth in the clerical force required to handle it. When Morrell started work as an office employee in the Tampa terminal 6 years ago, she worked alone for the first 2 years, but for the next 3 years had the part-time help of other employees in the terminal. Starting with October 10, 1966, this part-time help was dispensed with and Carlton was hired as a full- time permanent employee to assist Morrell in the office work of the terminal . In the latter part of 1966 the work in the office became so heavy that a third girl was hired for permanent employment, but she was terminated early in 1967 just prior to the effective date of the new Federal minimum hourly wage law upon an agreement worked out by Vice President Hall, Jr., with Morrell and Carlton that they would each work one Saturday a month to keep up with the work of the office . Despite this new arrangement, Respondent had to call in tempo- rary office help on occasion to help out on the backlog. In 1967, Morrell was out on maternal leave for a period of about 2- 1/2 months. During this period , Carlton took over Morrell's duties and Respondent hired a temporary girl from Manpower to do the work Carlton had been doing until Mor- rell returned to the office. About 10 days after Carlton 's November 14 ter- mination, the transportation billings of the Tampa terminal was transferred to Respondent's Bir- mingham office . This work when performed in the Tampa office had taken only about an hour and a half per day. Both before and after Carlton's ter- mination, some of the work she had done was taken over by the three supervisors in the Tampa ter- minal . Notwithstanding these transfers of clerical work, Morrell's testimony establishes that the Tampa terminal has been "seriously" behind in its office work since the termination of Carlton. Although Terminal Manager Morgan testified that Respondent as long ago as the summer of 1967 had been planning on the installation of IBM machinery at its Birmingham terminal to take over some of the clerical work performed by Carlton at the Tampa terminal and similar work being per- formed in other subsidiary terminals, the record shows that up to the date of the trial herein in mid- December 1967 no such installation has taken place at the Birmingham terminal. The record further shows that the Birmingham terminal in the month following Carlton 's termina- tion had no increase in hours worked by office per- sonnel therein to take care of the additional office work transferred from the Tampa terminal to Bir- mingham.7 Other incidents bearing on Respondent's motives in the discharge of Carlton are the following. On October 31, 1967, the day before the hearing scheduled on the Union 's representation petition on behalf of the Tampa terminal office employees, the senior Mr. Hall, president of the Company and father of the above more frequently mentioned Vice President Hall, Jr., telephoned Morgan and in- structed him to have one of his drivers, Hyman This finding is based on stipulated data submitted some 3 weeks after the close of the trial herein pursuant to the directive of the Trial Examiner at the trial. This posttrial data also reflects the revenue and tonnage of Respondent's Jacksonville terminal for the years 1966 and 1967 . The latter shows the Jacksonville terminal 's revenue and tonnage to be approximately double that of the Tampa terminal . From this fact in conjunction with the testimony at the trial showing that the Jacksonville terminal and all other subsidiary terminals in Respondent's system have only one full-time office employee as against the two in the Tampa terminal prior to Carlton's ter- mination, Respondent in its brief appears to imply , without direct assertion, that the Tampa terminal was overstaffed with office employees and that Respondent had terminated Carlton for strictly business reasons to place the Tampa terminal on par with all of its other subsidiary terminals with respect to the number of office clericals I decline to draw such an in- ference from the submitted posttrial data and will ignore it in determining whether Carlton 's discharge was discriminatory As the present case shows that the two office employees in the Tampa terminal with only half the ton- nage and revenue of the Jacksonville terminal had such a continuing backlog of office work as to require each of them to work one full Saturday a month to catch up with the backlog, there must be some explanation not of record for the fact that the Jacksonville terminal with only one full-time office employee and some part-time help could take care of that terminal's more than double tonnage and revenue . The record herein is necessarily lacking in such an explanation as the data here under discussion came in after the close of the trial and without explanatory text , probably because of the inability of counsel to agree on such a text. It is noted that the post- trial data submitted by the parties also includes data showing the number of man hours put in by Respondent's Birmingham office employees for the months of November and December 1966 and the 12 months of 1967. At or about the time the Decision in this case is filed, an order will be entered receiving in evidence as Joint Exhibit 1, the above-described data and the stipulation of counsel with respect thereto. I This is reflected in Joint Exhibit I referred to in the preceding footnote. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Solano, the local Union's job steward, call him as soon as possible. When Solano later in the day con- tacted Hall, Sr., by telephone at his Birmingham of- fice, Hall asked him to contact the Union's business agent, a Mr. Fernandez, to see if he would agree to an indefinite postponement of the election sought under the representation petition. Hall stated that he was making this request because the Company was installing a billing machine which might eliminate Carlton's job (and by inference, the two- employee office unit), but represented that Respon- dent would keep Carlton in its employment until the machine was installed if the Union would agree to an indefinite postponement of the election. After talking to Fernandez, Solano called Hall, Sr., to tell him that Fernandez had rejected his proposal for an indefinite postponement of the election and that Fernandez refused to engage in any bargaining on the subject. Hall thereupon replied that "this union thing would cost him too much money ... and in- asmuch as we could not get it postponed, that he would call in the morning and have Mrs. Carlton terminated." The above findings are based on the undisputed testimony of Solano. Like his son, Hall, Sr., also did not appear at the trial of this matter. As heretofore indicated Morrell was out on maternal leave for about 10 weeks in 1967. During this period, from about May 2 to July 17, the Com- pany hired temporary help until she was able to return to work. In late August 1967, Carlton in- formed Terminal Manager Morgan that she, too, was going to have a baby and asked if she could have about 8 weeks of maternal leave at the ap- propriate time. Carlton testified that Morgan, after expressing his surprise and pleasure, readily agreed" that she could have time off for her baby. Morgan's testimony shows that he made no mention to Carl- ton at that time of the Respondent's alleged plan to terminate her on November 14, which would be some months prior to the birth of her baby. Part of the conversation between Morgan and Carlton con- cerning her pregnancy took place in the presence of Morrell in whom Carlton had already confided about her pregnancy. Some 7 weeks later, on Oc- tober 19, Vice President Hall, Jr., in his aforemen- tioned long-distance telephone call to Morrell from Birmingham, inquired as to how long Carlton would be out on maternal leave and asked if it would be as long as 6 months. Upon receiving assurances from her that Carlton would be out only about 2 months, Morrell's undisputed testimony shows that Hall replied that if she and Carlton voted for the Union Carlton "might be no longer with us." Respondent follows the policy of allowing em- ployees to have their vacations at times of their own choosing, subject to company approval to ' This finding is based on the testimony of Carlton. Although Morgan de- nied that he made any express promise or indication to Carlton that she could have maternal leave , a careful scrutiny of Morgan's testimony as to what he did say or left unsaid when Carlton made her request leaves the clear impression that he did give Carlton the understanding that she could prevent undue disruption of company business. Morrell some time in August or September 1967 in- dicated by posted notice that she desired to take the week of November 27 through December 1 as her vacation week. With company approval, she was on vacation during the indicated week and upon her return to the office, she found that the of- fice work during her week of absence had piled up and was awaiting her. It is inferred that Respondent would not normally permit its Tampa terminal to be entirely without any office workers where it had a choice in the matter. Respondent nevertheless per- mitted its Tampa office to be entirely without office help in the week of November 27-December 1 by its discharge of Carlton on November 14 pursuant to notice given on November 1, the day the Union's representation petition was scheduled for hearing. Discussion and Conclusions The evidence is conclusive that Respondent through Terminal Manager Morgan did question the two clerical employees, Morrell and Carlton, in the Tampa terminal as to why they had joined the Union and whether it was out of a desire for more pay. Respondent contends that Morgan did this spontaneously out of "shock or surprise" upon learning of the Union's representation petition and that therefore "his statements do not amount to 8(a)(1) activity," but cites no authority for this position. In my opinion, surprise on the part of an employer at finding that his employees desire to be represented by a Union in collective bargaining does not justify the interrogation herein involved and found, but even if it is assumed arguendo that such surprise constitutes a defense against other- wise unlawful interrogation there is grave doubt on the record of this proceeding that Morgan was in truth surprised by the representation petition because that document on its face showed that the Union just prior to its filing had sought recognition and had been turned down by the Company. The interrogation here under consideration having been admitted by Morgan, it is found that Respondent is in violation of Section 8(a)(1) of the Act under that part of paragraph 5(a) of the complaint which alleges that "Terminal Manager Morgan ... questioned employees at the Tampa terminal con- cerning their union activity." The evidence is similarly clear that Morgan, despite his denials, promised the two office em- ployees "a pay raise if they abandoned their desire to be represented by the Union," as further alleged by paragraph 5(a) of the complaint. The only chal- lenge Respondent offers against the testimony of Morrell and Carlton that they received such a have time off to have the baby, just as he had given Morrell earlier in the year For this reason, as well as for the superior impression Carlton gave as a witness, I credit Carlton 's testimony that she received an express promise of maternal leave from Morgan and discredit Morgan 's denial. HOWARD HALL COMPANY, INC. promise from Morgan is the argument that, "It seems very doubtful that he would make such a promise ... without talking to the company offi- cials in a position to authorize such a raise," because Morgan did not have authority to grant wage increases. The record , however, shows that Morgan knew the thinking of the top officials of the Company well enough to quite safely make such a promise as is evidenced by the undisputed fact that Vice President Hall, Jr., himself gave Morrell as- surances, shortly after Morgan had made his promise to the two office workers, that he would have Morgan meet with them and work out the details of a wage raise for them if they would agree to drop the Union . In any event, as shown above, I credit the testimony of Morrell and Carlton that they received a promise of a pay raise from Morgan if they would agree to abandon the Union and dis- credit Morgan 's denials of such a promise. Ac- cordingly , I find and conclude that Respondent is in further violation of Section 8(a)(1) of the Act by reason of such promise as alleged in the complaint. Similarly the testimony of Morrell is undisputed that Hall, Jr., himself in his aforementioned telephone talk with her also interrogated her con- cerning her union sympathies ; sought to dissuade her from adhering to the Union ; indicated that Respondent might become more stringent if she and Carlton chose the Union and that one office employee might have to do the work presently per- formed by two office employees . Morrell's testimony thus substantiates the allegations of para- graph 5 ( b) of the complaint which thereby places Respondent in further violation of Section 8(a)(1) of the Act. The record also compels the conclusion that Respondent discriminately discharged Carlton because of her union activities in violation of Sec- tion 8 (a)(3) of the Act. In brief, it is Respondent's contention that it terminated Carlton on November 14, 1967, by reason of an economic decision reached in late August 1967 to reduce the Tampa office force from two employees to one by the transfer of the Tampa billings to the Company's main office at Birmingham for processing on an IBM machine as yet to be purchased and by the reassignment of some of the clerical duties of the two office employees to the three supervisors in the Tampa terminal , all of which was to be accom- plished by the date of Carlton 's termination as of November 14. Respondent further contends that it was a mere coincidence that the written notice of termination served on Carlton on November 1 hap- pened to take place at the time and place scheduled for a hearing on the Union 's representation peti- tion, although Respondent does not deny having advance knowledge of the fact that her discharge would have the legal effect of destroying the unit. The record makes it clear that Respondent's as- signed reasons for Carlton 's discharge are pretex- tual. The Company 's above-described 8(a)(1) con- duct is in itself persuasive that Respondent did not 23 in fact want to reduce its Tampa two-office em- ployee staff to a single employee because all of its efforts upon receipt of the representation petition were directed at convincing the two office em- ployees that their best interest would lie with their both staying with the Company at increased pay but sans the Union. The record is convincing that com- pany officials used the threat to discharge one of the girls only as a means of discouraging their union activities . There was no intimation to the women at the time the petition was received that the Com- pany had any previous plan to transfer any of the clerical work in the Tampa office to Birmingham and to the Tampa supervisors. The impression made by the record was that Respondent's primary objective upon receipt of the representation peti- tion was to get rid of the Union but to keep the badly needed two office workers. Vice President Hall's interest in keeping Carlton is expressed by the concern he showed in asking Morrell whether Carlton would be out as much as 6 months by reason of her pregnancy. Thus the conduct of Respondent at the time and within days after the receipt of a copy of the representation petition is inconsistent with Respondent's contention that it had reached a decision long before the petition was filed to discharge Carlton. Respondent's conduct the very day before the representation hearing was scheduled further con- firms the finding that Respondent's real motive in discharging Carlton was to be rid of the Union. This is borne out by undisputed testimony which shows that when President Hall found that he could not get the Union to agree to his proposal for an in- definite postponement of the representation hear- ing he issued an order for a notice of discharge to Carlton the very next day, knowing that this would effectively bar the Union by the breaking up of the two-employee unit, subject only to the outcome of a proceeding such as the instant case. There are also additional factors which show that Respondent's assigned reasons for Carlton's discharge are pretextual. The IBM machine which Respondent in August allegedly planned for instal- lation in its Birmingham terminal by the date of Carlton's discharge on November 14 to take care of the billings of not only the Tampa terminal, but of all of its terminals, had not by the date of the trial herein in mid-December been installed or con- tracted for. Although the Tampa billings have recently been transferred to Birmingham for manual handling, the record further shows that this only reduces the daily clerical work in the Tampa office by an hour and a half. Importantly the record further shows that even with the transfer of the billings to Birmingham and the reassignment of some of the other clerical work to the Tampa su- pervisors, the office work of the Tampa terminal, with only Morrell now working there, is seriously behind schedule. This serious backlog of clerical work at the Tampa terminal is not surprising. The terminal's 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tonnage and revenue has been expanding from year to year and with this growth there has been a con- comitant increase in the terminal's clerical needs. The expansion of the terminal 's business in the year of Carlton's discharge is especially noteworthy as the terminal in that year hired two additional drivers. In the face of this increasing volume of business and the attendant growth of associated paperwork, Respondent's abrupt reduction of the Tampa clerical office force by half by the discharge of Carlton appears to be so self-injurious as to be inconsistent with normal business practice and gives rise to an inference of a motive other than legitimate business purpose. Similarly the deliberate timing of Respondent's termination of Carlton some 2 weeks prior to the week in which the Company had advance knowledge that its only other office worker would be away on her scheduled vacation, is likewise in- consistent with ordinary business prudence and foresight and again bespeaks of a motive other than a legitimate business motive. In my opinion, the service of the discharge notice on Carlton on the very date and place of the hear- ing on the Union 's representation petition was not, as contended by Respondent , a mere coincidence, but was rather Respondent 's deliberate attempt to bring to naught the efforts of the two office em- ployees to organize and be represented by the Union in collective bargaining with the Company by destroying the two-member unit of which they were part. In summary it is found that Respondent had no bona fide economic reasons for discharging Carlton but terminated her solely to prevent the organiza- tion of the Tampa office clerical employees into an effective collective-bargaining unit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with its operations described in section I, above, have a close , intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Employer has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent discriminatorily discharged employee Pat Carlton, it will be recom- mended that Respondent offer the said employee immediate and full reinstatement to her former or substantially equivalent position, without prejudice to seniority and other rights and privileges9 and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination against her to the date of offer of reinstatement less interim earnings and time off for reasonable maternal leave , and in a manner consistent with Board policy as set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the Respondent's invalid conduct and its underlying purpose and tendency, I find that the unfair labor practices found are per- suasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. Therefore, in order to make effective the interdependent guaran- tees of Section 7 of the Act, it will be further recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). There is no charge in the case of an 8(a)(5) refusal by Respondent to bargain collectively with the Union as the representative of the two office clerical employee unit here involved. Accordingly, the complaint does not allege an 8(a )( 5) violation. General Counsel nonetheless requests an order requiring the Respondent to bargain collectively with the Union as the representative of the unit, under the authority of Northwest Engineering Com- pany, 158 NLRB 624, enfd. 376 F.2d 770 (C.A.D.C.), cert. denied 389 U.S. 932. The reasons advanced for the request is that both of the office employees testified at the hearing that they had signed union cards and desired union representa- tion. As the record established these facts and as the record further shows that the two employees constitute a 100 percent majority of the unit and that nothing would be gained by putting them to an election to prove the already established fact of their total majority, I will recommend an order requiring the Respondent to bargain collectively with the Union as the representative of the office clerical employees unit. Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following: "This phrase is intended to specifically include the maternity leave which Carlton may be using at the date of this Decision. HOWARD HALL COMPANY, INC. 25 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act. 2. All office clerical employees employed by the Respondent at its terminal at Tampa, Florida, ex- cluding drivers, warehousemen , and supervisors as defined by the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. On September 7, 1967, all members of the above-described unit designated and selected by authorization cards , bearing their signatures, the Union as their representative for the purpose of collective bargaining with Respondent. 4. At all times here material the Union has been the exclusive representative , for purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid ap- propriate unit. 5. The Union at all times here material from and after October 12, 1967, has sought recognition from the Respondent as the exclusive representa- tive of the aforesaid appropriate unit within the meaning of Section 9 (a) of the Act, but Respon- dent has at all times since October 13, 1967, declined such recognition although it has had full knowledge from and after October 16, 1967, that all members of the unit had authorized the Union to represent them in collective bargaining with Respondent. 6. By interfering with , restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. By discriminating in regard to the hire and tenure of employment of employee Pat Carlton, thereby discouraging membership in the above Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act. 8. Respondent's unfair labor practices , as found herein, have caused the dissipation of the Union's majority and the destruction of the condition for a fair election in which the Union could have demon- strated its majority status. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this case , I recommend that the Respondent, Howard Hall Company , Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor or- ganization of their employees , by discriminating in regard to their hire , tenure , or any other terms of conditions of employment. (b) Questioning employees concerning their union activities and sympathies. (c) Promising employees a pay raise if they abandoned their desire to be represented by a union. (d) Attempting to talk employees out of adher- ing to the Union. (e) Telling or otherwise indicating to their em- ployees that the Company might become more stringent with them if they choose the Union to represent them. (f) Threatening an employee that he or she might have to do the work formerly performed by two employees if the Union is selected by the em- ployees as their collective-bargaining agent. (g) Refusing, upon request, to bargain collec- tively in good faith with the aforesaid Union, as the exclusive representative of all office clerical em- ployees employed by Respondent at its terminal in Tampa, Florida. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request , bargain collectively with the Teamsters, Chauffeurs and Helpers Local No. 79, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of all of its office clerical employees employed at its terminal at Tampa, Florida, excluding all drivers, warehousemen and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Pat Carlton immediate and full rein- statement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of Respondent's discrimination against her, as set forth in that section of the Trial Examiner's Deci- sion entitled "The Remedy." (c) Notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (d) Preserve and, upon request , make available to the Board or its agents, all payroll records, and all other records necessary to analyze the amount of backpay as set forth in "The Remedy" section of this Decision. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its terminal at Tampa, Florida, copies of the attached notice marked "Appendix."" Co- pies of said notice , on forms provided by the Re- gional Director for Region 12, after being duly signed by Respondent's representative , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewith." 1O In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " 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 12 , in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in the Teamsters, Chauffeurs and Helpers Local No. 79, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by discharging employees for engaging in pro- tected concerted activity, or in any other manner discriminating against any individual in regard to his hire , tenure of employment or any term or condition of employment except as authorized in Section 8(a)(3) of the Act. WE WILL offer to Pat Carlton immediate and full reinstatement to her former or substan- tially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered as a result of the discrimina- tion against her. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT promise our employees a pay raise if they abandon their desire to be represented by a union. WE WILL NOT attempt to talk our employees out of adhering to the Union. WE WILL NOT tell or otherwise indicate to our employees that the Company might become more stringent with them if they chose the Union to represent them. WE WILL NOT threaten our employees that he or she might have to do the work formerly performed by two employees if they choose the Union to represent them. WE WILL NOT threaten an employee that he or she might have to do the work formerly per- formed by two employees if the Union was selected by the employees as their collective- bargaining agent. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form labor organizations , to join or assist the above- named or any other labor organization, to bar- gain collectively through representatives of their own choosing , or to engage in other con- certed activities. WE WILL, upon request , bargain collectively with Teamsters, Chauffeurs , and Helpers Local No. 79, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all our office cleri- cal employees employed at our terminal at Tampa , Florida, excluding all drivers, warehousemen , and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an un- derstanding is reached, embody such un- derstanding in a signed agreement. HOWARD HALL COMPANY, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7257.