C. A. Froedge Delivery and Trucking Service, Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. A. Froedge Delivery and Trucking Service, Inc., and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 25-CA-2875 June 21, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On March 27, 1968, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed limited exceptions to, as well as a brief in support of, the Trial Examiner's Decision. The Charging Party filed exceptions in which it incorporated the General Counsel's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner as modified herein. The General Counsel excepts to the Trial Ex- aminer's inclusion of special provisions in his Remedy and Recommended Order by which Respondent, upon application, may reopen the record to adduce evidence with respect to the par- ticipation by the Union and strikers in the acts of vandalism and shooting incidents which occurred during the strike. As the case was formally tran- ferred to the Board upon issuance of the Trial Ex- aminer's Decision, and as the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, particularly Sections 102.48(d) and 102.49, afford adequate protection to Respondent's rights in the matter, we find merit in this exception. Accordingly, we do not adopt that portion of the Trial Examiner's Remedy which permits Respon- dent to reopen the record.2 We shall modify the Trial Examiner's Recommended Order in this re- gard. We also find merit in the General Counsel's ex- ception to the Trial Examiner's failure to include in his remedy, Recommended Order, and notice specific provisions for the reinstatement of dis- criminatee Jerry Brooks, as well as appropriate backpay provisions for all the unfair labor practice strikers , including Brooks. The Trial Examiner found, and we agree, that Brooks was discrimina- torily discharged on July 12 when he joined the strike. We shall therefore modify the Trial Ex- aminer's remedy to expressly require Respondent to accord Brooks the same reinstatement rights recommend for the other strikers, discharging, if necessary, any person hired on and after July 12. We shall also order Respondent to make the strik- ing employees, including Brooks, whole for any loss of earnings which they may suffer, or have suffered, by reason of the Respondent's refusal, if any, to reinstate such striking employees in the manner prescribed in the Trial Examiner's remedy, as modified herein, by payment to them of a sum of money equal to that which such employees nor- mally would have earned as wages during the period beginning 5 days after the date on which such employees apply for reemployment or rein- statement and terminating on the date of the Respondent's offer of employment. The amount payable and interest thereon will be computed in accordance with the formulas stated in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I The Trial Examiner inadvertently found that on July 14 employees Trester and Schrader requested the return of their cards The record shows that Slecth should he substituted for Trester Employee Earnest Gibson testified, the record shows, that in a conversa- tion on July 13 or 14, 1967, Respondent 's president, Cecil A Froedge, told him that " he ( Froedge I would give me more money when he could, and he would also get us uniforms-get our uniforms hack " As found by the Trial Examiner , in the same conversation Froedge also unlawfully interrogated Gibson about his other employees' union sympathies and threatened to close his down before he would have a union In this context , the above- quoted remark clearly implied that Respondent would give the benefits in return for the employees' rejection of the Union. Since the Trial Examiner credited Gibson 's testimony , we further find, as alleged in the complaint, that this remark also constituted a violation of the Act Like the Trial Examiner , and for the same reasons, we do not pass on the July I I incident in which Froedge pointed a gun at Union President Loran Robbins ' Moreover , in view of the Trial Examiner's finding , which we adopt, that Respondent adduced no evidence which would place responsibility for the violence on the Union or any of the strikers, we do not consider germane to the remedy his discussion of the various authorities cited. 172 NLRB No. 8 ORDER C. A. FROEDGE DELIVERY 47 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, C. A. Froedge Delivery and Trucking Service, Inc., In- dianapolis , Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 2(e) of the Recommended Order, reletter paragraphs 2(d), (f), and (g) as 2(f), (g), and (h), respectively, and insert the fol- lowing new paragraphs 2(d) and (e): "2(d) Within 5 days after application by any one of its striking employees , reinstate him as provided in "The Remedy" section of the Trial Examiner's Decision , as modified. "2(e) Make whole any such striking employee in the manner set forth in the section of the Trial Ex- aminer's Decision entitled "The Remedy," as modified, for any loss of pay he may suffer or has suffered by reason of the Respondent's refusal, if any, to reinstate him." 2. Delete in its entirety the last substantive para- graph of the Recommended Order. 3. Delete the last substantive paragraph from the Appendix attached to the Trial Examiner's Deci- sion and add the following: WE WILL offer similar reinstatement, within 5 days after application, to any employee, in- cluding Jerry Brooks, who participated in the strike against us. WE WILL make any striking employee whole for any loss of pay suffered by reason of our refusal, if any, to reinstate him. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN , Trial Examiner: The original charge herein was served on Respondent on July 11, 1967,' the complaint issued on October 31, and the case was heard on January 15, 16, 17, and 18, 1968. The issues litigated involved alleged viola- tions of Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act, as amended . Briefs were filed by the General Counsel, the Charging Party, and Respondent. Upon the entire record ,2 including my observa- tion of the witnesses, I adopt the following findings and conclusions: 1. RESPONDENT'S OPERATIONS C. A. Froedge Delivery and Trucking Service, Inc., herein called Respondent, is an Indiana cor- poration , and is engaged in its establishment in In- dianapolis, Indiana, in the local hauling business. It was stipulated,' and I find, that Respondent an- nually derives gross income of more than $50,000 from hauling for an interstate carrier, and annually derives more than $50,000 in gross income from hauling for various nonretail enterprises, each of which annually ships goods worth more than $50,000 to out-of-State points. Respondent is en- gaged in commerce within the meaning of the Act. II. THE UNION Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondent unlawfully coerced its employees by acts and threats of violence directed against union agents, interrogation of employees, threats of reprisal, promises of benefit, or solicita- tion of employees to repudiate the Union? 2. Whether Respondent discharged, and refused to reinstate, Brooks and M. Brown because of their union activity? 3. Whether Respondent's admitted refusal to recognize the Union on and after July 13 was un- lawful? 4. Whether the strike, which began on July 11, was caused or prolonged by unfair labor practices? A. Sequence of Events Respondent employs about 30 truckdrivers in its local pickup and delivery business . While most of these drivers have regular hours a few report daily for assignment on a shapeup basis-that is, they are assigned to handle orders from customers as they are received during the day, which for one reason or another cannot conveniently be handled by the regular drivers. In January the Union began its campaign to or- ganize Respondent's drivers, a number of cards were signed during the ensuing months, and on July 10, having by that time obtained cards from at least 12 employees then in the unit ,4 two union agents approached Respondent's president, Froedge, and requested recognition. Froedge rejected this request, physically assaulting one of the union agents and ordering them from Respondent's ' All dates refer to 1967, unless otherwise stated ' For corrections of the transcript, see the order of March 12. 1968. ' G C Exh. 2 In addition, the Union had several cards from former employees Sec G.C Exhs. 12 through 28 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premises. On July 11, the Union commenced picketing and several of Respondent 's employees joined the pickets, while others refused to report for work during the picketing, which is still in ef- fect. On the same day, the Union obtained four more signed cards and the next day addressed a letter to Froedge again requesting recognition , claiming to have cards from a majority of Respondent's em- ployees designating the Union as their bargaining agent, and offering to submit the cards to an agent of the State Department of Labor for his insepec- tion and verification of employee signatures. Respondent did not reply. Brooks and M. Brown joined the pickets on July 11. The next day Brooks was notified that his em- ployment had been terminated because of his strike activity. He has not been rehired . About October 1 M. Brown 's request for reinstatement was rejected. B. Discussion 1. The 8(a)(1) violations a. Acts and threats of violence On July 10, Union Agents Martin and Hicks came to Froedge's office to request recognition. According to Martin, when he proffered to Froedge a letter setting forth the Union's recognition request, he declined to read it, ordering the union agents off the premises, and, as the men started to leave , made as if to strike Hicks, whereupon Martin pointed his finger at Froedge and warned him that that would be the worst mistake he ever made. Martin added that Froedge heeded his warning for the moment, but that, as the two union agents were passing through the door on their way out, Froedge seized Martin by the scruff of his neck, pushed him outside , and proceeded to rain blows on him; that, when Martin , after a struggle, finally freed himself from Froedge 's grasp , he seized Martin's necktie and continued to pummel him all the way to the point where the agents' car was parked; that the witness had difficulty getting into the car, while try- ing to ward off Froedge's blows; that Hicks in the early part of the affray shouted to Martin not to retaliate ; and that, after Hicks started the car, Froedge ran after him with a rock, pulled the car door open, and exchanged words with Hicks. M. Brown , testified that he witnessed the fracas outside Respondent 's premises; that, as the three men came out of the door, Froedge "grabbed some papers and tore them up," and ordered the other two off the property ; that Froedge held Martin by the necktie and was striking him; that the other union agent at first admonished Martin not to hit back, but finally urged him to protect himself, and Martin did hit back a few times in his struggle to get into the car; that , when Froedge returned to the office , he had a rock with him , and boasted about throwing the Union out. Froedge, who is a con- siderably larger man than Martin , admitted striking the first blow on this occasion , and tearing up the Union 's letter5 during the latter part of the incident, but he insisted that he was provoked by the fact that Martin had called him a "S.O.B." and waved his fist at him. Froedge also denied that he pulled open the car door, and disclaimed, albeit rather equivocally , that he had a rock in his hand at any time during the incident.' Martin denied that he applied the foregoing epithet to Froedge or gave him any other provoca- tion, except to warn him as described above against striking Hicks. On the basis of demeanor, as well as the circumstantiality of Martin 's testimony, I credit his version wherever it conflicts with Froedge's.' On the morning of July 11, when Froedge came to work, he found about 25 persons in the alley in the rear of his premises, including several whom he knew to be union agents . According to Froedge, when he parked his car on his own lot , three of these individuals crossed from the alley to his car and he ordered them off his lot, whilst holding a gun in his lap. He denied that he got out of the car at the time or pointed the gun at anyone . However, one of these individuals , Union President Robbins, testified that Froedge emerged from his car with the gun, pointed it at the witness, and shouted to him to get out of the alley, declaring that he would not have a union ; and that, when the witness stood his ground , Froedge returned to his car and drove off. Three other union agents who were at the scene, Hicks, Roberts, and Martin , corroborated Robbins' version . In view of such corroboration, as well as demeanor considerations , I credit Robbins, and find that on this occasion Froedge pointed a gun at Robbins and ordered him to pet out of the alley, whilst inveighing against the Union. Tewell , who joined the pickets on July 11, testified that on January 8, 1968 , one of Respon- dent's trucks had occasion to use the alley in the rear of Respondent's premises at the same time that a union agent was backing his car from the alley into a parking lot;' that the union agent maneu- vered his car to permit the truck to pass; and that a few minutes later Froedge , after applying an un- printable epithet to the union agent, warned Tewell that the next time the agent blocked the alley Froedge would shoot him. Although Froedge de- nied uttering any such threat, I credit Tewell on the basis of demeanor. ' This was evidently the " papers" that M. Brown had reference to. The General Counsel put Hicks on the stand to testify about the in- cident, but as Respondent at that point stipulated the essential features thereof, I ruled that there was no need for his testimony at that time. ' Moreover, even if Froedge were credited as to the alleged acts of provocation by Martin, that would not justify the extreme violence of Froedge's reaction, including his pursuit , and continued pummeling, of Martin even as he was making his exit " The lot had been rented by the Union. C. A. FROEDGE DELIVERY 49 The General Counsel contends that by Froedge's foregong acts and threats of violence against union agents, Respondent violated Section 8(a)(1) of the Act. The Board has held that such conduct, although not aimed directly at employees, has a tendency to deter them from engaging in union ac- tivity, where it is committed in their presence or under such circumstances that it is likely to come to their attention.' It is axiomatic that any expres- sion of antagonism to a union by an employer tends to deter his employees from engaging in union ac- tivity and, unless protected by Section 8(c), vio- lates the Act. Clearly, the instant conduct con- stituted a dramatic and forceful expression of Froedge's antagonism to the Union, and for that reason alone was unlawful . Moreover, Froedge's actions implied to the employees that similar mea- sures, or other forms of reprisal , would be directed against them if they engaged in union activity. It is found, therefore, that by Froedge's conduct in con- nection with the July 10 incident, which was wit- nessed by at least one employee (M. Brown),1° Respondent violated Section 8(a)(1) of the Act. A like conclusion applies to the January 8 threat to shoot the union agent , which was addressed to Tewell, who, although picketing at the time, occu- pied the status of an employee under the Act. While such threat was contingent upon any future blocking of the alley by the union agent 's car, the severity of the threatened retaliation was so far out of proportion to the act on which it was condi- tioned, as to make it clear that the agent would be shot not so much for blocking the alley but because he was a union representative." However, as to the July 11 incident, there is no evidence that it was witnessed by any employee of Respondent or that it ever came to their attention. While it is arguable that the nature of the incident was such that employees were likely to hear of it, I do not deem it necessary to resolve that point, since any violation finding based thereon would be mere- ly cumulative and would not affect the remedy. Ac- cordingly, I do not pass on this matter. b. Threats of economic reprisal Biddle , who was employed by Respondent from April 1 to June 30, testified that late in April Froedge stated that he would probably close, if the Union "ever did come in." E. Thompson , who worked for Respondent from September to November , testified that in mid-Sep- tember Froedge warned him of discharge if he en- gaged in any union activities. Schrader, who worked for Respondent from June I to November 15, testified that a few days after the picketing began Froedge promised him he would have a job as long as he came to work, ad- ding that that was more than he could say for the pickets. M. Brown , who joined the pickets on July 11, testified that on July 5, Froedge warned him of discharge , if he signed a union card or talked to a union agent, and threatened to lock his doors if the Union "came in," and that this threat was repeated in substance on July 10.12 Brooks, who joined the pickets on July 11, testified that on April 10 Froedge warned him of discharge if he passed out any more union cards, and that on July 5 , Froedge warned that he would close down rather than deal with the Union. Moreover, as already noted, on July 12, Brooks was notified by Froedge that Brooks had been ter- minated because of his participation in the strike, and Brooks ' wife testified that on that date Froedge told her he would close his doors before he would "have a union in."13 Gibson , who continued to work until August 10, during the picketing, testified that on July 13 or 14, Froedge threatened that he would close his doors before he would have a union , and that some time between July 24 and August 10, he declared that he would not take back any employees who joined the pickets. Trester, who joined the pickets on July 17, testified that on July 10, after announcing that he had struck a union agent and thrown him out, Froedge declared that he would discharge anyone who joined a picket line, 14 that he would not have any union and that he would close his doors. Froedge denied generally that he ever threatened to close his doors rather than deal with a union, and specifically denied addressing such threats to Bid- dle, M. Brown , Mr. and Mrs. Brooks , Trester, or Gibson. He also denied uttering all the other threats ascribed to him, except that he was not asked and did not testify as to the following matters: (a) Schrader's testimony concerning the dim job prospects of the pickets, as portrayed by Froedge on July 13 or 14. (b) Brooks' testimony that on April 10, Froedge warned him of discharge, if he passed out union cards. • Sullivan Surplus Sales, Inc., 152 NLRB 132, 148- 149, and cases there cited. 10 Moreover, on the basis of their uncontradicted testimony , I find that Froedge , himself, reported the incident to Brooks and Trester later the same day , boasting that he had attacked the union agent and "thrown the Union out," and that on July 14 he made a like report to Schrader. 11 Particularly, in view of the relative insignificance of the "blocking" in- cident that provoked Froedge 's outburst. 11 M. Brown testified to a similar threat on an unspecified date before he suffered an injury, early in June. As such incident is cumulative , there is no need to consider it further. 13 She had come to Respondent 's office to receive her husband's paycheck, and was handed the notice terminating his employment. 14 As picketing did not actually begin until the next day , the implication of this testimony was, as Trester, himself, observed, that the foregoing threat was uttered in anticipation of any picketing. 354-126 O-LT - 73 - pt. 1 - 5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, it is undisputed that the notice given Brooks on July 12, attributed his termination to his strike activity.'s It is therefore clear that at least in the three instances last cited Respondent violated Section 8 (a)(1) of the Act. As for the other incidents , there is posed the issue of the credibility of Froedge as against the General Counsel 's witnesses, all of whom were former employees and, except for E . Thompson, and Gibson , had signed union cards. There can be no doubt that Froedge harbored strong union animus, as witness his above -described violent reac- tion on July 10, when presented by the Union with a request for recognition . Moreover, in view of the number of witnesses who testified to the virtually identical threats, the absence of any evidence of prounion proclivities on the part of two of those witnesses (E. Thompson and Gibson ),'R as well as demeanor considerations ," I credit such testimony and find that , as testified by such witnesses, Froedge threatened to close his doors rather than deal with any union , and to visit other reprisals for union activity. c. Interrogation Brooks testified that on July 5, at the same time that he threatened to close down rather than deal with a union , Froedge asked the witness about his distribution of union cards and professed to have heard that he had quite a few of them , eliciting from Brooks the retort that he did not know how many he had as he had not counted them. As there was no contradiction of such testimony, I credit it.'8 Gibson testified that a few days after July 11 Froedge asked him if he wanted the Union. Froedge denied this. However, I credit Gibson for reasons already indicated. Gibson added that on an unspecified date after July 11, Dillard , Respondent 's dispatcher, asked the witness whether he had signed a union card. Although testifying about other matters , Dillard was not examined on this point. Respondent con- tends that it is not chargeable with any interroga- tion by Dillard because he was not a supervisor. As " Froedge claimed that he did not mean to notify Brooks of discharge but only of the fact that he had been replaced, that Froedge intended to rehire Brooks after the strike was over , and that to clarify this Brooks was sent a letter to that effect on August 28, which letter was admittedly received by Brooks However , pending such clarification Brooks had no reason to suppose that the July 12 notice meant anything other than a complete severance of the employment relation " Froedge , moreover , did not controvert the testimony of Eubanks, a former employee, who was not shown to be a union adherent , that on July 12, Frocdgc stated that he did not want the Union in his establishment and that , " if there was anything he could do to prevent it. he would - " Respondent attempted at the hearing to impeach the credibility of three of the General Counsel 's foregoing witnesses by eliciting admissions that they had been convicted of various misdemeanors However, such convictions were for offenses not necessarily reflecting on veracity, and, moreover , in the case of one of these witnesses , the conviction was, in any event , too remote in time ( 1959) to be entitled to any substantial weight Dillard is found below to be a supervisor, this con- tention is rejected. Finally, I credit Trester's testimony, not- withstanding Froedge's denial, that on July 14 Froedge remarked to the witness that Froedge knew that he had signed a union card, thereby eliciting from the witness an admission that he had. It is found that by the foregoing interrogation or remarks in the nature of interrogation , particularly when considered in the context of Respondent's other unfair labor practices, Respondent violated Section 8(a)(1) of the Act. d. Promises On the basis of Trester's uncontradicted testimony it is found that, when on July 17 he failed to report for work , Froedge went to his home and appealed to him to come to work , stating, "You stick with me and you'll be taken care of." Despite Froedge 's denial, I credit Schrader's testimony that a week or two after the picketing began he heard Froedge remark that, if the Union would get off his back, he might be able to give the employees a wage increase. It is found that by Froedge 's foregoing promises of benefit to induce the employees to abandon, or refrain from, union activity Respondent violated Section 8(a)(1) of the Act. e. Solicitation of employees The incident of July 17 involving Trester, just re- lated, constituted, apart from anything else, unlaw- ful solicitation of Trester by Froedge to refrain from striking. In addition , there is no dispute that during the first week of the picketing dispatcher Dillard , who is found below to be a supervisor, par- ticipated in the drafting of a petition repudiating the Union and was the first to sign it , that Dillard solicited Schrader to sign the petition and explained the purpose thereof to Trester and Gibson, who thereupon signed it.1° Froedge disclaimed any knowledge of the peti- tion until after it was presented to him completely Also, to impugn Brooks' testimony about the alleged July 5 threat by Froedge to close down , it was shown that in a pretrial affidavit given to a Board agent by Brooks in August he professed not to recall having had any conversation with Frocdgc about the Union except for one in March and the one in April described above Brooks explained at the hearing that he did not in fact recall the July 5 threat when he was interviewed by the Board agent in August , but that his memory was refreshed when he was later questioned by the General Counsel's trial attorney about his various discussions of the Union with Froedge However that may be , even if Brooks be discredited as to the July 5 threat , that circumstance would not require that all the other witnesses who testified about like threats also be discredited '" In view of the absence of such contradiction , there is no need to con- sider what weight to give to Brooks' disclaimer in his pretrial affidavit of any discussion of the Union with Froedge during this period Sec preceding footnote " Altogether 20 names were affixed to the petition C. A. FROEDGE DELIVERY 51 executed. However, there was no direct contradic- tion of Daugherty 's testimony that during the period that it was being signed by the employees the petition was posted on the desk in Respondent's office, which was used by both Froedge and Dillard in connection with their dispatching work . In view of this, I infer that it came to Froedge 's notice dur- ing that period . In any case , Dillard's solicitation of employees to sign it suffices to charge Respondent with responsibility therefor, and it is found that, by thus soliciting employees to repudiate the Union and, incidentally , interrogating them about their union sentiments , Respondent violated Section 8(a)(I) of the Act. 2. The 8(a)(3) issues It has already been found that on July 12, Brooks was notified by Respondent of the "termination" of his employment because of his strike activity. Froedge testified that he had not meant thereby to discharge Brooks but only to advise him that he had been replaced , and it is clear that on August 28, Respondent did send Brooks a letter as follows: In order to clarify any possible misunderstand- ing regarding your relationship to this Com- pany, we wish to advise you that you were replaced , not discharged , when you went on strike : and if you should ever again wish to work for Froedge Delivery & Trucking Ser- vice , Inc., we will be pleased to take your ap- plication and consider it along with any others we may have for any vacancies which may oc- cur. However, in evaluating Froedge's intent on July 12, the objective evidence afforded by his "dis- charge" letter of that date is entitled to more weight than the self-serving "clarification " of that letter, which was admittedly written after he had obtained legal counsel. I find, therefore , that on July 12, Froedge intended to, and did , discharge Brooks. Nor did the August 28 letter suffice to rescind such discharge as of that date , and accord Brooks the status of an employee who has not been discharged but merely replaced ; for, that letter implies only that, if Brooks ever elected to return to work, he would be treated like any other applicant for em- ployment. Whether or not such assurance would be adequate, if Brooks were merely an economic striker, it clearly implied a refusal to recognize his rights as an unfair labor practice striker'20 which, as found below, was his status when he received the foregoing letter. Accordingly, it is found that, by implying that he would not be accorded the rights of an unfair labor practice striker, if and when he sought to return to work, the August 28 letter did not dissipate, but continued, the discriminatory ef- fect of his discharge. M. Brown He testified that, after picketing for about 2 months, he applied for reinstatement to Froedge'21 who refused to rehire him because he had joined the pickets. Froedge acknowledged receiving a telephone call from one purporting to be M. Brown and asking to return to work, and that, although he did have need for Brown's services at the time, Froedge told the caller that he had no need for anyone but to come and talk to him and he would think it over, explain- ing at the hearing that he gave this reply because he did not recognize Brown's voice, and it was not his practice to hire over the telephone. However, Froedge did not say that he would have hired Brown had he reported in person, and his statement to Brown that there was no work for him was not calculated to encourage him to apply in person. Ac- cordingly, even if one credits Froedge, I find that his negative response to Brown's request, even if qualified in the manner described by him, was not justified by the circumstances, and constituted a refusal to rehire. As Respondent admittedly had need for Brown's services, he was entitled to rein- statement upon application, even if he were merely an economic striker, and refusal of reinstatement for any reason other than disqualifying misconduct would therefore be unlawful. Moreover, on the basis of demeanor and the im- plausibility of Froedge's version of the matter, I credit Brown and find that he was refused reinstate- ment because of his strike activity. It follows that by such refusal Respondent violated Section 8(a)(3) and (1) of the Act.22 3. The refusal to bargain a. The appropriate unit It is found that the following unit is appropriate for purposes of collective bargaining: All Respon- dent's regular, full-time and part-time truckdrivers, freight handling employees, mechanics, and dispatchers, excluding office clerical, professional, and technical employees, and all supervisors as defined in the Act. 3 " As such , he would be entitled to reinstatement . upon application, whether or not he had been replaced , and noLmercly to consideration of such application. " Other testimony places the date of this application as about October I In view of this finding , there is no need to resolve conflicting testimony as to whether Brown was discharged on July I I for joining the pickets A finding to that effect would not affect his right to reinstatement or backpay (which would not accrue , in any event , until he applied for reinstatement) rx The foregoing unit description conforms substantially to that alleged in the complaint , except for the inclusion of mechanics and dispatchers. Respondent wished to include them The General Counsel indicated that he had excluded mechanics because on the critical date the only one doing any mechanical work was admittedly Dillard, who was alleged ( and found below ) to be a supervisor However, the record shows that Bingham, who was hired on August 1, worked full time as a mechanic As to the dispatchers, while it is found below that Dillard , the only present dispatcher ( other than Froedge ) is a supervisor, the exclusion of all dispatchers presupposes that even the most routine dispatching work would necessarily be supervisory I am not persuaded of this 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The Union 's majority status Of the 33 individuals alleged by Respondent to have been in its employ on the critical date (July 13), the parties agreed that 19 belonged in the unit and that 2 did not. As to the remaining 12 persons, the parties were in disagreement. The issues as to these individuals will next be discussed. Respondent sought to exclude Brooks, M. Brown, Strong, and Tewell, presumably on the ground that they were not at work on July 13. How- ever, it is undisputed that they were not working on that date because of their participation in the picketing.24 It is accordingly found that they are eligible. It is General Counsel's position that Curtis, Lewis, and Shields are not eligible because they quit Respondent's employ before July 13 . However, as there was no contradiction of the testimony in the record that they were regular , part-time em- ployees, who ceased work on July 11 , only because of their unwillingness to cross the picket line, I find that they were, in effect, striking employees on July 13, and are eligible. Contrary to the General Counsel 's contention, I find Noe eligible on the basis of Froedge 's uncon- troverted testimony that Noe was on a leave of absence from June 30 to July 20, when he returned to work. The General Counsel contests the eligibility of Baire . A memorandum submitted by Froedge to the General Counsel before the hearing contains the notation that Baire was hired on July 11 to replace M. Brown . However, at the hearing, Froedge con- tended that this was a mistake and that Baire was, in fact, assigned to Brooks ' route . As there was no effective contradiction of this testimony ,25 I so find. However, as is found below , when Baire was hired, Brooks was an unfair labor practice striker. As a replacement for such a striker , Baire would not have been eligible to vote in a Board election, had one been conducted .26 Accordingly, Baire will not be counted. Eubanks' eligibility was challenged by the General Counsel. He worked for Respondent until June 16 , when he quit to take a full -time job in a filling station . His hours there were such that he was free on alternate afternoons, and being free for that reason in the afternoon of July 12, he visited Respondent's premises and volunteered to work for " The fact that Brooks had, in addition, been discriminatorily discharged on July 12 would not, of course , affect his status as an employee of Respon- dent for present purposes In its brief, Respondent attacks Brooks' card on the ground that it was signed on April 8, whereas Brooks had quit Respondent 's employ on April S, and did not return to work for Respondent until April 10. However, the record shows that before signing his card Brooks had already applied for rehire and was notified to report on April 10, which was the next workday. As he at no time thereafter repudiated his card , it will be counted as a valid designation of the Union. ° E. Thompson 's testimony imputes to his brother , L. Thompson, the statement that he was assigned to Brooks' route in July. However, as this Respondent . His offer was accepted, but, after completing the day, he indicated to Froedge that he would not return because of the picketing. Accord- ing to Froedge , Eubanks did promise at that time that he would return when the strike was over. However, Eubanks testified that on July 12, when he tendered his services to Froedge, he offered to work only "for that day," and not for the duration of the strike, and that Froedge did not ask him to return. Under these circumstances , there is no basis for finding that there was any mutual understand- ing, when Respondent accepted Eubanks' offer of his services on July 12, that his employment would continue beyond that day.27 I find therefore that Eubanks was a casual or temporary employee, and not eligible .21 The General Counsel contends that H. Clampitt and Dillard are supervisors . As to H. Clampitt, the record shows only that he spends part of his time directing the loading and unloading of trucks at Respondent's dock. While the matter is not free from doubt, I do not believe that the evidence pre- ponderates in favor of a finding that such directions as he gives require the exercise of independent judgment. Accordingly, he is deemed eligible. Admittedly, Dillard spends a substantial part of his time every workday as a dispatcher, and during Froedge's frequent absences from Respondent's premises is the only one there to give directions and assignments to the 30 odd drivers. Froedge esti- mated that at least since early July he had been ab- sent from the premises about 90 percent of the time and that Dillard had been required to do about 90 percent of the dispatching work. Froedge admitted also that most of the drivers do not have established routes, but are assigned to a particular section of the city only on a daily basis. However, Froedge in- sisted that he left written orders with Dillard every evening concerning the assignments for the next day, and, even while away from the premises, remained in contact with his office via a two-way radio in his car, keeping Dillard informed of his whereabouts whenever he left the car. Froedge de- nied further that Dillard had any authority over personnel other than that described above. Dillard testified that after July 11 he spent most of his time in dispatching,29 that, in response to a customer's telephone order, he may make an on- the-spot assignment of a driver to pick up a load, but that in such a case he selects one of the drivers was hearsay and it is not clear therefrom on what date in July this assign. ment was made , I can accord little weight to such testimony. s" Tanipa Sand and Material Co., 137 NLRB 540, and cases there cited. Needless to say, Baire 's status was not improved by the fact that Brooks was discriminatorily discharged on July 12 , for, even if Baire be deemed to have become on that date a replacement for a discriminatorily discharged employee , he would still be ineligible. in Even if he did offer to return after the strike , as Froedge said, there is no evidence that Froedge accepted such offer nor that there was any un- derstanding that he would be employed on a regular basis after the strike. " Davis Transport, Inc., 169 NLRB 552, fn. 2. 0 Up to that time he had been dispatching from 6 .30 a.m. to 10 a.m. C. A. FROEDGE DELIVERY who is already operating in the area closest to the pickup point. However, if the shipment is so urgent that it requires immediate attention, he will assign the load to one of the "shape-up drivers" waiting in the Respondent's office for work. As between two such drivers, he will select the one who normally services the particular area . He acknowledged that, in case a truck breaks down, he may order its cargo picked up by another truck, without consulting Froedge, but insisted that in such a case he selects the truck nearest the scene of the breakdown. While Dillard denied *enerally that he had any other aspect of a supervisor, he admitted that, when E. Thompson indicated that he would like to eat breakfast before going on his route, Dillard, without consulting Froedge, gave him the choice of immediately taking his truck out or punching out, and that E. Thompson thereupon did punch out. Schrader testified that Dillard reprimanded him for driving too fast on one occasion, and on another occasion questioned him as to why it took him so long to make a delivery; and that Dillard authorized him to eat lunch at home, during work hours, but later canceled that privilege. M. Brown testified that on one occasion Dillard refused his request for time off for personal reasons; that Dillard instructed the witness not to punch his timecard when he reported for work but only when he actually received an assignment, and corrected Brown's timecard whenever he did not comply with this instruction; that, to accomodate a driver who wished to leave early for personal reasons, Dillard changed his route to one that was shorter than his regular route; that Dillard has once or twice rejected a driver's request for a change in his route; that, when the witness would complete his route, and lacked 10 or 15 minutes to make up a full hour, Dillard would assign him to loading work on the dock for the balance of the hour; and that Dillard has reprimanded him for not calling in after unloading his truck, and before returning to Respondent's premises. Brooks testified, inter alia, that upon the comple- tion of his day's deliveries he would report to Dil- lard, who would instruct him whether to return or make a pickup; and that Dillard would check with him via radio on his progress during the day. Tewell testified that on one occasion Dillard sent him home early for lack of work. Gibson, who was not shown to be a union ad- herent, testified that he would call Dillard by telephone while on his route to ask for time off, that Dillard would sometimes grant his request, and that he heard Dillard threaten Schrader with a disciplinary discharge. Trester testified that in June he asked Dillard for a raise, that Dillard promised to see if he could get '"' To the extent that Dillard 's denial that he did so without consulting Froedge conflicts with other testimony , I credit such testimony on the basis of demeanor , as well as the lack of candor apparent in certain of Dillard's 53 one for Trester, that he received a 25-cent-an-hour increase about a week later, and that Dillard re- marked that he had helped get it. Trester added that Dillard assigned him overtime work on the docks without consulting Froedge. Froedge acknowledged that Dillard had men- tioned to him Trester's request for a raise, and that, after talking to Trester and considering other fac- tors, Froedge granted the raise. Dillard, on the other hand, entered a puzzling denial that Trester had ever spoken to Dillard about a raise or that he had ever discussed the matter with Froedge. It is not understandable why Dillard should want to deny playing even the minimal role that Froedge at- tributed to him. Dillard insisted also that any time off granted by him was pursuant to instructions from Froedge, that he reprimanded Schrader in accord with such in- structions, and that the same was true of his assign- ment of Trester to overtime work on the docks. He also denied that he permitted Schrader to go home for lunch. He admitted, however, that, without con- sulting Froedge, he would permit a driver to quit work early, if he pleaded illness, and that he sent Tewell home early for lack of work. It is evident from the foregoing that in the matter of work assignments Dillard had discretion, at least, to determine whether a telephone order for a pickup should be executed by a driver who was al- ready on the road or by one of the shapeup drivers who was awaiting assignment, and that, in making such determination , he had to consider the urgency of the order and whether it could be handled with sufficient expedition by the driver on the road. I conclude, therefore, that, in making such a deci- sion, Dillard was required to exercise independent judgment. In view of this, as well as the incident involving E. Thompson and the evidence concerning Dillard's practice of granting time off,30 it is found that Dil- lard was a supervisor. It follows from the foregoing that, without Dil- lard, Baire, and Eubanks, there were 28 employees properly in the unit on July 13. At the hearing the General Counsel offered in evidence cards purport- ing to have been signed prior to July 13 by 16 of those employees. Respondent challenged the card of S. Barker on the ground that it was not properly executed. In the body of this card Barker 's name is printed in full together with his social security number, but on the signature line appears only his first name, and it is likewise printed. The card bears the date of July 11, 1967, and the signature of "J. Martin" as a witness. Union Agent Martin testified that on July 11, in Tewell's presence, he presented the card to Barker, who filled it out in the manner described above, explaining that that was "all he testimony particularly with regard to Trester 's raise Moreover, as already noted, Dillard acknowledged that in some instances he granted time off without consulting Froedge. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could write." Tewell confirmed this. Respondent, however, introduced in evidence pay slips, which Froedge testified were signed in his presence by Barker, and inspection of such slips reveals a hand- written scrawl, which, while not entirely legible, bears some resemblance to a proper spelling of Bar- ker's name. Nevertheless, in view of the mutually corroborative versions of Martin and Tewell,31 their testimony is credited, and it can only be assumed that Barker, although capable of signing his name in semilegible form, preferred to print it on the card for some reason best known to him.32 Respondent also challenges the card of Barker, as well as that of A. Brown, on the ground that they were obtained by misrepresentation or coercion. However, there is no persuasive evidence of this.33 It is concluded that the cards of A. Brown and S. Barker are valid. The record shows that on July 14 Trester and Schrader requested the return of their cards. Respondent contends that their cards were thereby invalidated. However, to give any such effect to those requests, one would have to disregard the various unfair labor practices of Respondent which antedated, and presumptively induced, such requests. In any event, such requests, needless to say, cannot affect the Union's majority as of July 13. It may be noted, finally, that Trester apparently had another change of heart on July 17 when he decided to cast his lot with the strikers.34 I find, therefore, that on and after July 11 the Union had a majority of 16 out of 28 employees. c. The refusal to recognize It was stipulated that Respondent on July 13 received the Union's letter of July 12 requesting recognition , and did not reply thereto, and has since July 13 refused to recognize the Union. In explaining such refusal , Froedge testified vari- ously that he did not recognize the Union (I) because 8 to 10 of the "older employees" told him they did not want the Union, ( 2) because of com- plaints by several employees of coercion by Union representatives, (3) because the Union threatened to put him out of business, and (4) because the union representatives had not been sufficiently courteous in their dealings with him. However, Froedge finally admitted that he would not under any circumstances have recognized the Union without a "free election."" When asked why he did not consent to a card check, as proposed in the Union's letter of July 10," Froedge at first answered, "I don't know of any reason right at the present time," but promptly amended this answer, alleging that the Union had on a prior occasion requested recognition without any cards to support its request, and that several months before July 11 he had visited the Union's office and spoken to union officials, who had ut- tered "allegations and threats." Elsewhere in his testimony Froedge stated that he distrusted cards because employees might change their minds. Froedge's shifting explanations for refusing to recognize the Union on the basis of a card check would in themselves suffice to convict him of bad faith. Moreover, even if one considers only Froedge's position that he would at no time or under any circumstances have recognized the Union without a "free election," proof that such position was taken in bad faith is afforded by the fact that, even while professing to desire a free election, Froedge took measures calculated to make such an election impossible . Thus, he took the following actions, which were substantially con- temporaneous with, or postdated, the Union's July 12 demand for recognition, and which were calcu- lated to coerce the employees to repudiate the Union: (1) On July 10, in the presence of an employee, Froedge physically assulted Union Agent Martin, tore up the Union's letter, and later boasted to em- ployees about having attacked the agent and "thrown out the Union." (2) He discharged Brooks on July 12 for joining the pickets. " Moreover, the fact that the Respondent 's pay slips for Barker bear the same social security number as appears on the foregoing union card is a corroborative circumstance " Barker was not called to testify , the General Counsel explaining that he had left the area. Barker may have feared , not without reason, that his handwriting would not be sufficiently legible . While it may he thought strange that he printed only his first name on the signature line, the short answer to any doubts concerning the matter would seem to he that , if anyone had planned a for- gery, they surely would have done a more artistic job and, at least, completed the printing of Barker 's name on the signature line. As to the validity of a card , which is only partially completed by the em- ployee , see f Taitel & Son, 119 NLRB 910.912, in 3 1 Although asserting that he signed the curd on July I I after being con- fronted by a hostile picket line, A Brown acknowledged at the hearing that he signed the card voluntarily , and that he was not threatened by the Union 's solicitor, Martin While he attributed to Martin the statement that there would be "nothing to it ," it is not clear whether this was intended, or understood , as an assurance that Brown had nothing to fear from Respon- dent, if he signed the card , or that his act had no significance at all. The latter construction , which is the one apparently urged by Respondent, seems implausible, as it is unlikely that Brown would think that Martin would take so much trouble to obtain his signature on a meaningless docu- ment As to Barker, there was no evidence concerning the circumstances under which he signed , other than that he did so on July I I at the picket line i' Respondent appears to suggest that all the cards may hale been in- validated by the fact that they contained a clause making them irrevocable for a period of I year However, there is no evidence that any of the em- ployees took any note of this clause or was inhibited thereby from revoking his card See N L R B. v. Southbridge Sheet Metal Work %, Inc. 380 F 2d 851 (C A. I ), where, in rejecting a like contention, the court indicated that the burden was on the respondent to show that "employees underwent a change of mind or were prohibited from manifesting it " In this connection, Respondent specifically attacks Reinhardt's card , because it was signed more than 4 months before the demand date, and he might have changed his mind in the interim. However , the mere lapse of time will not suffice to establish this, it being familiar law that a state of fact, once shown to exist, will be presumed to continue, at least for a reasonable period , until the con- trary is shown Under the circumstances, the interval between the signing of Reinhardt 's card and the Union 's demand did not constitute an un- reasonable period 45 He did in fact file a petition for an election on July 20. As already noted , the same proposal was made in the July 12 letter C. A. FROEDGE DELIVERY 55 (3) He threatened not to rehire anyone who par- ticipated in the strike. (4) He threatened to close his doors rather than deal with a union. (5) Employees were solicited to repudiate the Union through the petition described above. (6) Employees were interrogated about their union activity and promised benefits if they refrained from such activity. Upon consideration of all the foregoing matters, it is clear that Froedge did not refuse to recognize the Union because of any bona fide doubt of the Union's majority status but only because he was bp- posed to the principle of collective bargaining to such a degree that he was not only unwilling to recognize the Union on the basis of a card check but was even determined, while professing to seek an election , to preclude his employees from ex- pressing a free, uncoerced choice in such election.37 It is concluded therefore that, by refusing on and after July 13 to recognize the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 4. The strike As already related, the Union on July 1 1 established a picket line at Respondent's premises, and during that day and the ensuing week several of Respondent's employees joined the pickets, and several others refused to report for work during the picketing , which was still in effect at the time of the hearing. It seems indisputable that the picketing and the related withholding of services by Respon- dent's employees were precipitated by the events of July 10. 31 It has already been found that by the violent manner of Froedge's reaction to Martin's request for recognition, Respondent violated Sec- tion 8 (a)(1) of the Act, and Union President Rob- bins testified that the manner in which Froedge re- jected the Union's demand was a factor in the Union's decision to picket. While it may well be that the fact that Respondent had rejected the recognition request was at least an equally, potent consideration '3 it is not incumbent upon me to speculate as to what might have happended under different circumstatnces.40 The fact of the matter is that the Respondent on July 10, engaged in con- duct which violated the Act, and that the decision to picket followed on the heels of such conduct. That is sufficient to establish a prima facie case that the picketing was caused by the violation, and no sufficient showing to the contrary has been made. It is clear, in any event, that whatever the cause of the picketing, it was prolonged by Respondent's various unfair labor practices after July 11, particu- larly the discriminatory discharge of Brooks in the evening of July 12, and the second refusal of recog- nition on July 13, after the Union had achieved majority status, which refusal, as found above, vio- lated Section 8(a)(5) and (1) of the Act. It is accordingly found that the picketing and re- lated strike were caused by Respondent's unfair labor practices and were, in any case, prolonged by the subsequent violations of the Act found above. 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 the operations of the Respondent 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 It having been found that Respondent violated Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent refused to recognize and bargain with the Union, which represented a majority of the employees in an ap- propriate unit. Accordingly, I shall recommend that the Respondent be ordered to recognize and bar- gain, upon request, with the Union as the exclusive representative of the employees in the appropriate unit. The Respondent contends that certain evidence adduced by it concerning acts of vandalism and of violence affecting its property and drivers precludes the issuance of a bargaining order in favor of the Union. Such evidence shows that the first of these acts occurred on July 14 when four of Respon- 3' Respondent argues that the fact that a majority of the employees did not join the strike justified Froedge in believing that they did not favor the Union . However , here , unlike the situation in Neuman Transit Co., 138 NLRB 659, cited by Respondent. Froedge nowhere assigned this as a reason for his refusal to recognise the Union , and it is clear , in any event, from all the circumstances that any doubt Froedge may have had about the Union 's majority was at best a secondary consideration, his primary motivation being his opposition to all unions w In view of this , there is no need to consider whether, as Robbins testified , other of the Respondent 's acts, found above to be violative of the Act, which antedated July 10 , contributed to the Union's decision to picket Respondent. '0 M. Brown testified , without contradiction , that on July 11, union offi- cials told him that the object of the picketing was to secure recognition However, this does not necessarily negate the Union 's contention that Froedge's treatment of Martin influenced its decision on July 10 to seek recognition through picketing (rather than through a Board election) (Of course, if the picketing were deemed to have been triggered only by the fact that Respondent had refused recognition on July 10, it would be neces- sary to hold that the picketing and strike did not originate in an unfair labor practice , since, there being no majority for the Union on that date, such refusal did not constitute an unfair labor practice at that point.) '0 It is well settled that the burden here was on Respondent to show that the strike would have occurred, even absent any unfair labor practices. N L.R B. v Remington Rand, Inc , 94 F 2d 862, 872 (C A. 2), cert denied 304 U S 576; N.L.R.B. v. Borg-Warner Corp., 236 F 2d 898 , 907 (C A 6) and cases there cited 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's trucks, while parked at different locations were set on fire; that in August an attempt was made to set fire to another truck; that in November shots were fired at 2 trucks while in operation; and that about a week before the hearing (1) shots were fired at 11 of Respondent's trucks while parked on its premises, (2) another of its trucks was the target of a sniper while parked at a customer 's premises, and (3) still another of its trucks was set afire while away from Respondent's premises.41 Neither with respect to these acts nor other like acts, which were sought to be proved at the hearing,42 was it shown by what persons they were committed or that the Union or its agents had any connection therewith. In Laura Modes Company,43 although finding a violation of Section 8(a)(5), the Board refused to issue a bargaining order in favor of the union, because it was found to have "resorted to and/or encouraged the use of violent tactics" in support of its demand for recognition. In Kohler,14 the Board held that an employer was justified in breaking off negotiations with a union, during a strike, because of contemporaneous acts of vandalism, violence, and coercion directed at nonstrikers.4-1 However, in both Kohler and Laura Modes the Board relied upon direct evidence that union agents had participated in, encouraged, or af- firmatively endorsed, such acts. Such evidence is lacking here's Froedge testified that, before its difficulties with the Union , Respondent had never been the target of acts of violence or vandalism, and it is a 'suspi- cious circumstance. that such acts coincided in time with the Union 's campaign to enforce its bar- gaining rights by picketing against an employer who had, himself, resorted to violence in his dealings with the Union. One might surmise that the Union felt justified in fighting fire with fire. However, sur- mise and suspicion cannot take the place of proof, particularly since all the union agents who were questioned about the matter disclaimed any knowledge of the identity of the perpetrators of the foregoing misdeeds , and Union President Robbins testified that he expressly forbade his staff to en- gage in any form of violence in connection with the picketing at Respondent 's premises. Nevertheless, it would seem appropriate under the circumstances to limit any remedial order herein , by recognizing expressly the right of 41 Other evidence relating to acts of vandalism by unidentified persons against the automobiles of three employees and to the dynamiting of foredge 's station wagon , all during the period of the picketing, was rejected at the hearing on the ground that no connection was shown between the perpetrators of these acts and the Union . For the purpose of this Decision the veracity of such evidence is assumed 47 See preceding fn. 47 144 NLRB 1592. " Kohler Co., 128 NLRB 1062. 4' Compare also cases where the Board has held that the duty to bargain is suspended, where the union strikes in violation of a no-strike clause or engages in intermittent work stoppages or slowdowns Marathon Electric Mfg. Corp , 106 NLRB 117 1, International Shoe Co, 93 NLRB 907. Respondent to obtain reconsideration and ap- propriate revision of such order at any time, upon its application, and upon a proper showing that the Union was responsible for such acts of violence or vandalism , heretofore committed, as would justify denying it bargaining rights, or that any one of the discriminatees or strikers has participated in such acts to such a degree as to warrant denying him any relief.47 Having found that the Respondent early in Oc- tober unlawfully refused reinstatement to Mitchell Brown, I shall recommend that Respondent be required to offer him reinstatement to his former or substantially equivalent position without impair- ment of seniority or other rights and privileges. I shall also recommend that Respondent be required to make him whole for any loss of earnings suffered by reason of the discrimination against him, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of such discrimination to the date of a valid offer of reinstatement , less his net earnings during such period. Backpay shall be computed in ac- cordance with the formula stated in F. W. Wool- worth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per an- num. Isis Plumbing & Heating Co., 138 NLRB 716.48 It having been found that the strike was an unfair labor practice strike from its inception, it will be recommended that Respondent be required to rein- state all the strikers within 5 days after their appli- cation, to their former or substantially equivalent positions, without impairment of their seniority or other rights and privileges, displacing, if necessary, all persons hired on and after July 11. In view of Respondent's unfair labor practices, particularly the discriminatory conduct found above, there exists a threat of future violations, which warrants a broad cease-and-desist order. CONCLUSIONS OF LAW 1. All Respondent's regular, full-time and part- time truckdrivers, freight handling employees, mechanics, and dispatchers, excluding office cleri- cals, professional, and technical employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- « See Thayer Inc. of Virginia, 125 NLRB 222, 234-236, where the Board refused to find a union responsible for coercive conduct during a strike, even though the evidence of union involvement therein was stronger than it is here. 47 As to the propriety of reopening the record to receive such evidence, see N L. R.B v Indiana & Michigan Electric Co., 318 U S 9. (Proof of the Union's complicity in the acts of violence and vandalism would not affect its right to file the charge herein nor the responsibility of Respondent for any proven violations of Section 8(a)( I) ) See N L R B. v. Indiana & Michigan Electric Co , supra, Milk Drivers and Dairy Employees Union, 133 NLRB 1314, 1321 -1322, and cases there cited ) " Since Brooks was discharged after he struck , he is not entitled to backpay or reinstatement until he abandons the strike. C. A. FROEDGE DELIVERY 57 ing within the meaning of Section 9(b) of the Act. 2. Since July 13, 1967, the Union has been and still is the exclusive representative of all the em- ployees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. (3) By refusing since July 13 to recognize and bargain with the Union as the exclusive representa- tive of its employees in an appropriate unit, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By acts and threats of violence directed against union agents, interrogation of employees about their union sentiments, by soliciting them to abandon their union activity and by threatening reprisals, and offering them benefits, to induce them to refrain from such activity, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Sec- tion 7 of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Respondent has violated Section 8(a)(3) and (1) of the Act by its refusal to reinstate Mitchell Brown and by discharging Jerry Brooks. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent , C.A. Froedge Delivery and Trucking Service , Inc., of Indi- anapolis, Indiana, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize Chauffeurs, eam- sters, Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and bargain with it concerning rates of pay , wages, hours of employment, or other conditions of em- ployment, as the exclusive representative of all its regular, full-time and part-time truckdrivers , freight and handling employees, mechanics and dispatchers, excluding office clericals, profes- sionals, and technical employees, and all super- visors as defined in the Act. (b) Discouraging membership in said Union or in any other labor organization , by discriminating against employees in regard to their hire or tenure of employment. (c) Interfering with the exercise by its employees of their rights under Section 7 of the Act, by coer- cively interrogating them about their union senti- ments, by promising them benefits , threatening them with plant shutdowns or other reprisals, sol- iciting their defection from the Union, or directing acts or threats of violence against union agents. (d) In any other manner, interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, the extent that such right may be affected by the provisos to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Chauffeurs, Teamsters, Warehousemen and Help- ers Local Union No. 135, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the ex- clusive representative of all employees of the Respondent in the aforesaid unit with respect to rates of pay, wages, hours of employment or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Mitchell Brown immediate reinstate- ment to his former or substantially equivalent posi- tion , without prejudice to his seniority or other rights and privileges, and notify him, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement, 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. (c) Make whole the said employee in the manner set forth in the section of the Trial Ex- aminer's Decision entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination againt him. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Within 5 days after application by any one of its striking employees, reinstate him as provided in "the Remedy" section of the Trial Examiner's Decision. (f) Post at its establishment in Indianapolis, Indi- ana, copies of the attached notice marked "Appen- dix."4s Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's representative, ." 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." 58 DECISIONS OF NATIONAL shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.50 IT IS FURTHER ORDERED that , upon proper appli- cation by Respondent, the record will be reopened to permit it to adduce evidence concerning the responsibility of the said Union or any of the strikers for acts of violence or vandalism, hereto- fore committed , affecting Respondent or its em- ployees. "' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of the 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 recognize and bargain, upon request, with Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all employees in the bargaining unit described below in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment, and, if an understanding is reached, em- body it in a signed agreement . The bargaining unit is: All our regular, full-time and part-time truckdrivers, freight handling employees, mechanics, and dispatchers, excluding of- fice clericals, professional, and technical employees, and all supervisors as defined in the Act. WE WILL NOT discourage membership in Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, A/W Interna- tional Brotherhood of Teamsters, Chauffeurs, LABOR RELATIONS BOARD Warehousemen & Helpers of America, or in any other labor organization, by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten to close our operation or discharge anyone for favoring a union. WE WILL NOT ask employees to give up their union activity or to sign petitions against a union. WE WILL NOT attack, or threaten to attack, union representatives. WE WILL NOT coercively interrogate our em- ployees about their union sentiments or make them promises of benefits to diminish their desire for union representation. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Chauffeurs , Teamsters, Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Team- sters, Chauffeurs , Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities , except to the extent that such right may be affected by the provisos to-Section 8(a)(3) of the Act. WE WILL offer Mitchell Brown immediate reinstatement to his former or substantially equivalent position, and WE WILL make him whole for any loss of pay suffered by reason of our past refusal to reinstate him. WE WILL offer similar reinstatement , within 5 days after application, to any employee who participated in the strike against us. All of our employees are free to become, remain, or refrain from becoming or remaining, members of Chauffeurs, Teamsters, or Warehousemen and Helpers Local Union No. 135, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. C. A. FROEDGE DELIVERY AND TRUCKING SERVICE, INC. (Employer) Dated By (Representative ) (Title) C. A. FROEDGE DELIVERY Note: We will notify the above-named employee, and all employees who participated in the strike, if presently serving in the Armed Forces of the United States of their right to full reinstatement 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. 59 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, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana 46204, Telephone 633-8921.