Lowery Trucking Co.

LOWERY TRUCKING CO. Lowery Trucking Co. and Ace-Alkire Freight Lines, Inc. and Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees Union Local No. 710 ; affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 18-CA-2626 (Formerly 13-CA-8357) June 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 1, 1969, Trial Examiner George Turitz issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondents had not engag•.-d in certain other unfair labor practices allege i in the complaint and recommended dismissal as to them. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondents, Lowery Trucking Co., 'In essential agreement with the Trial Examiner we conclude that the Respondents violated Sec . 8(a)(5) of the Act by refusing to recognize and bargain with the Union as the majority representative of their employees in an appropriate unit and thereafter embarking upon a campaign of unfair labor practices to thwart the Union . Respondents, in fact, were successful, for a majority of employees signed a petition revoking the Union's authority to bargain for them . Clearly those unfair labor practices had the effect of undermining the Union 's majority and their nature was such as to preclude the holding of a fair election. Accordingly, we find that Respondent violated Sec 8(aX5) and ( I) of the Act, and that the policies of the Act will best be effectuated through a bargaining order as a remedy for such conduct . N L.R.B. v. Gissell Packing Co., 398 U S. 336. 13 Council Bluffs, Iowa, and Ace-Alkire Freight Lines, Inc., Des Moines, Iowa, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Decision. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: Upon a charge filed on April 1, 1968, by Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees Union, Local No. 710, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 710) and served on April 2, 1968, upon Respondents, Walter Lowery and Ruth Lowery, partners, doing business under the name Lowery Trucking Co. (Lowery Trucking) and upon Respondent, Ace-Alkire Freight Lines, Inc. (Ace), the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 18 on September 16, 1968, issued an amended complaint and notice of hearing against Respondents. Ace and Lowery Trucking filed their respective answers in which each denied that it was the employer of the employees involved and denied all allegations of unfair labor practices. A hearing was held on November 14, 15, 18, and 20, 1968, at Council Bluffs, Iowa, before the Trial Examiner named above. The General Counsel and Respondents were represented by their respective counsel at the hearing; the Charging Party was represented by its organizer. The General Counsel and Respondents have filed briefs with the Trial Examiner. Upon the entire record' and from his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Ace-Alkire Freight Lines, Inc., is a Missouri corporation having its principal place of business in Des Moines, Iowa, and having eight freight terminals in various States of the United States, including terminals in Des Moines, Iowa, Minneapolis, Minnesota, and Omaha, Nebraska. It is engaged as a motor carrier in the interstate transportation of commodities pursuant to certificates granted by the Interstate Commerce Commission (the ICC). Ace annually receives in excess of $50,000 for the interstate transportation of goods. It is found that Ace is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act). Respondent Lowery Trucking Co. is a partnership, the co-owners of which are Walter Lowery and Ruth Lowery, his wife. It has a terminal and shop in Council Bluffs, Iowa, where it is engaged in the business of leasing trucks to motor carriers certificated by the ICC. Lowery Trucking annually receives in excess of $250,000 for leasing its trucks to carriers engaged in the interstate 'Pursuant to Respondent Ace's unopposed motion , it is ordered that the transcript of testimony be corrected as indicated in Appendix A annexed to this Decision [Omitted from publication.] 177 NLRB No. 7 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transportation of commodities. It is found that Lowery Trucking is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees Union, Local No. 710, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES furnish and bear the expense of license plates, running and maintenance, fuel and maintenance of refrigeration units hauled by the leased tractors, including fuel for units it did not own, was to pay bridge and road tolls, fines resulting from violation of speed , weight, ICC, or other regulations, and was required to provide itself with public liability and property damage insurance covering such times as the leased equipment was not in use by Ace. The lease provided that the 32 cents per mile was "compensation to the lessor for the use of the equipment and driver d r i v e r . B. The Relationship Between Respondents and the Employees The principal issues litigated at the hearing were: (a) whether Respondents each coerced the employees; (b) whether each Respondent was an employer of the employees involved; (c) whether they were joint employers; (d) whether the employees involved constituted an appropriate unit; and (e) whether a demand for bargaining communicated only to Ace was a sufficient basis upon which to predicate a finding of a refusal to bargain in violation of Section 8(a)(5). A. The Relationship Between Ace and Lowery Trucking On June 30, 1967, Ace Lines, Inc. merged with Alkire Truck Lines, Inc. (Alkire), into Ace-Alkire Freight Lines, Inc., the present Respondent, Ace. Effective July 1, 1967, Ace took over the operation of Alkire freight terminals, including the Omaha terminal. The terminal manager, Myers, was retained but the dispatcher was replaced. Ace continued the operation of the various Alkire routes, among them the hauling of raw meat in refrigerated trailers from some eight packing plants in Omaha to their respective customers in Chicago. The great bulk of the meat was hauled in equipment leased to Alkire by Lowery Trucking, a relationship that began in 1962 , and Ace dealt with Lowery Trucking on the basis of the latter's lease agreement with Alkire. The tractors bore the legend, "Walt Lowery leased to Ace-Alkire Freight Lines," together with Ace's ICC permit numbers. Except for the leasing of equipment by Lowery Trucking to Ace, there was no business or other connection between the two firms or their respective owners . Lowery Trucking leased tractors and trailers to approximately seven companies and had some 100 trucks leased out. On October 1, 1967, Lowery Trucking and Ace executed a new lease having the same terms as the Alkire lease except that Lowery Trucking' s compensation was increased from 31 cents to 32 cents per mile. The lease applied to 14 tractors and 16 trailers, each specifically identified in the lease by serial and title numbers. Among the provisions were the following : After 30 days the lease was subject to termination by either party upon 90 days' notice. Lowery Trucking delivered complete possession and control of the leased equipment to Ace for use wherever Ace was authorized to haul property by the ICC or other regulatory body, and all shipments were to be handled, billed and delivered in Ace' s name. Ace was to pay for telephone calls authorized by its personnel and for weighing-scale fees for gross loads in excess of 33,000 pounds. It was to maintain "all necessary insurance coverage" when property was transported with its authority, and it was to furnish workmen's compensation insurance covering the drivers. Lowery Trucking was to Hiring: Lowery Trucking hired drivers only for specific tractors on lease; the jobs were referred to as "seats." It had a separate payroll for the drivers assigned to each lessee . Wolf, who did the hiring, testified credibly that Lowery Trucking received written applications from potential drivers for the Ace run, interviewed them, and made preliminary checks. He stated that when a man met Ace's minimum requirements - 3 years' over-the-road driving, 25 years of age and suitable character - he was sent, along with a copy of his application,2 to Ace which had the final word as to hiring a driver for the particular run involved. However Ace never rejected a driver sent by Lowery Trucking. Wolf ascribed this to his care in meeting Ace's requirements. The driver was also required to bring to Ace a copy of the report on his ICC-required physical examination; if he did not have one sufficiently up-to-date, Wolf instructed him to have such an examination and to bring the report to Ace. Ace had no payroll for the drivers of the Lowery trucks. Some men first applied for jobs directly to Ace, but whenever the job involved driving the Lowery equipment, Ace sent them to that firm to file their applications. Lowery Trucking also received applications without regard to particular lessees. When a suitable seat was open, Wolf got in touch with the applicant and sent him to Ace or whatever other lessee had the opening. Finances: The Lowery drivers who worked for Ace received all direct monetary compensation and reimbursement from Lowery Trucking. This included their basic wage, which was based on mileage covered, and also, when it was granted, a $5 payment which was made upon presentation of a hotel receipt when drivers had to remain overnight in Chicago. The mileage payment was Lowery Trucking's obligation to the employees; the layover payment was Ace's obligation, and Lowery Trucking was reimbursed by Ace.' All these payments, as well as the rental payments, were made on the basis of the drivers' manifests which, with attached vouchers, showed the mileage covered and the incidental expenses . Lowery Trucking included its Ace drivers in its hospitalization insurance program . When Ace took over the Alkire operation, Lowery Trucking was paying 8 cents per mile. When the new lease was discussed by Walter Lowery and Easter, president of Ace, in September 1967, Lowery told Easter that he wanted his mileage rate increased so that he could increase the drivers' pay. The increase from 31 to 32 cents per mile was agreed to and Lowery Trucking then increased the drivers' pay to 8-3/4 cents per mile. 'For reasons not apparent in the record some drivers were required to make out additional applications for Ace 'For a short time Ace recompensed the drivers at the rate of $2.50 per hour for unloading in Omaha , but the record is not clear as to whether the LOWERY TRUCKING CO. 15 Duties: Pursuant to ICC regulations Ace used no drivers unless within 3 years they had been certified as physically fit by a licensed physician or osteopath. Ace required the Lowery drivers to maintain and turn in to Ace a daily log required by the ICC showing times and points of departures, arrivals, fueling stops, and layovers, and also showing all periods of consecutive driving, as well as cumulative driving hours on a 24-hour and 8-day basis. These logs were reviewed by Ace, which reported to the ICC any violations they disclosed . Ace's safety director periodically issued safety literature to the Lowery drivers, and from time to time he discussed safety matters with various drivers directly. In about May 1968 Ace issued a safety bulletin addressed to "all road drivers," which included the Lowery drivers, instructing them: That it will be his responsibility, when dispatched, to notify the dispatcher whether or not he can accept a particular run and to make this trip without being in violation of the ICC rules. You are not to accept a dispatch if you do not have the hours of service [available] and cannot perform your duties under the prescribed rule .... Ace's insurance carrier operated road patrols which reported to Ace violations of regulations by the drivers. Ace's dispatcher would notify a driver by telephone where and when he was to pick up his next load. Normally 2 to 4 hours' notice was given . After picking up his tractor at the Lowery terminal the driver drove to the Ace terminal for the manifest and to the shipper for his already loaded trailer, and then left for Chicago. Drivers were expected to make the trip within a maximum of 11 hours; Ace would request Lowery Trucking to replace a man who consistently failed to meet that maximum. Upon arrival in Chicago the driver reported to the Ace terminal there his manifest number, his time of arrival, and the temperature of the meat. He reported again after his cargo was unloaded, after which he proceeded to a truck stop known as Truckers' Paradise, where his truck was refueled and the trailer steamed. When that was completed, the driver again reported to the Chicago terminal and received instructions as to a return load, including the pickup time, the delivery point in Omaha, and, usually, whether the trailer could simply be dropped there or had to be guarded by the driver until turned over to the persons who were to unload . In Omaha, after disposing properly of the loaded trailer, the driver returned the tractor to the Lowery terminal and delivered his manifests to Lowery Trucking, which mailed a copy to Ace. He then went home to await his next dispatch . Maintenance work on the tractor was performed by Lowery personnel; drivers reported to Lowery Trucking any need for repairs. Ace required drivers to perform additional duties, such as monitoring the refrigeration units en route and defrosting them from time to time ; helping unload their trailers in some cases on the return trip; and moving trailers from point to point in the Omaha area. Termination of employment: Myers, Ace's terminal manager, testified that Ace had a working arrangement with Lowery Trucking that the latter would remove from the Ace operation any employee whose performance was proved unsatisfactory. However, on September 10, 1968, Myers gave a Lowery driver a note warning him that the Ace dispatcher would discharge him if he again failed to follow the dispatcher's instructions . In early November 1968 Myers told Slotten, a Lowery driver whom he saw fighting with the dispatcher, that he was through, and men received the money directly from Ace or through Lowery Trucking. when Slotten asked whether that meant he was fired, Myers said yes." Slotten drove his truck to the Lowery lot and reported to Wolf, asking whether Myers had called. Told that he had, he told Wolf he would remove his personal property from the tractor the next day, which Wolf assented to, and Slotten left. Slotten told Walter Lowery that he had been fired and asked what he could do about it, saying that he did not know what he would do for a job. Lowery replied that Slotten had brought it on himself, that he could do nothing, and that if Ace fired him he was automatically out of a job. Subsequently the dispatcher and Slotten adjusted their dispute and Myers called Slotten back to work. He went out on his next turn with no loss of assignment. In August 1968 Ace was informed that one of the Lowery drivers had a woman with him in his cab. Ace called Wolf and told him the man was not working any more. Concluding findings as to the employment relationship Ace: The Lowery drivers performed virtually all their duties pursuant to detailed instructions from Ace, not Lowery Trucking. Moreover, while they could select the particular roads they traveled between Chicago and Omaha, this did not mean that they were not under Ace's control while on those trips. Ace limited them to a certain maximum time, and it was Ace that had, and exercised, the responsibility for encouraging safe driving habits and requiring the drivers to adhere to speed and weight regulations, as well as the ICC regulations designed to maintain their driving ability. In addition, it was Ace that specified to the drivers when and where loads were to be picked up both in Omaha and Chicago, that, after completion of the return runs, required the drivers to move various trailers about in Omaha, to guard certain loads, and in some cases to assist in unloading , and it was Ace that decided whether they were to be paid extra for these services. All these things were done by Ace with a view to maintaining its own, not Lowery Trucking's, standing with its customers, its insurance carrier, and with the ICC. Plainly Ace's control, in its own interest, of the drivers' day-to-day operations was that of an employer over his employees. Ace also had substantial control, again in its own interst, of the employees' tenure of employment. While it never rejected a driver hired by Lowery Trucking, it had the right to do so; the Trial Examiner does not credit Myers' testimony that Ace could not reject a driver sent by Lowery Trucking. Moreover Ace did terminate two Lowery drivers and it issued a written warning of possible discharge to a third. It is found that the relationship between Ace and the Lowery drivers working for it was that of an employer and employees. See Troupe Leasing Co. and Chemical Leaman Tank Lines, Inc., 174 NLRB No. 37; cf. also Local No. 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B., 266 F.2d 675 (C.A.D.C.), denying enforcement of 120 NLRB 1103. Lowery Trucking: While Lowery Trucking's interest in and control of the drivers' day-to-day work was not so extensive as Ace's, it was substantial. The drivers were required to report to Lowery Trucking any repairs that were needed. It was Lowery Trucking's expensive equipment that was entrusted to the men's care, and it The Trial Examiner has credited Slotten 's version of the incident over Myers'. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was Lowery Trucking that would have borne the cost of poor driving that resulted in wastefulness or in damage to the equipment, as well as the cost of fines for violations of speeding, overweight, and other regulations . It must be inferred that these considerations played an important part in Lowery Trucking' s decision as to whether or not to hire a driver for an Ace seat. Most important, Lowery Trucking determined and bore the cost of wages. In view of Lowery Trucking' s control on its own behalf of these important aspects of the employment relationship, it is found that its relationship with the drivers was that of employer and employees. Both Respondents had a direct interest in and responsibility for the drivers' performance as regards speeding, overweight regulations, and en-route maintenance of refrigeration equipment. Both participated in the hiring process, Lowery Trucking directly and Ace by reviewing employment applications and through its power to reject and/or immediately discharge any driver. Moreover, while Respondents purported to separate the control of the drivers' labors from control of their compensation, such separation does not realistically represent the actual situation . Thus, as discussed below, when Lowery sought an increase in mileage rates in September 1967, he explained to Easter that it was to be used in large part to increase the wages of the men working for Ace; and Ace itself increased the drivers' wages when it consented to pay them for unloading, a task formerly included in the work performed in return for the mileage rate. In view of their sharing of control over labor policies affecting the employees in the appropriate unit, it is found that Ace and Lowery Trucking were joint employers of said employees. See Manpower, Inc., of Shelby County and Armour Grocery Products Co., a Division of Armour and Company, 164 NLRB No. 37. C. Sequence of Events 1. Organization of the employees and seeking of recognition In August 1967 Mischan , a Local 710 organizer, began to solicit designation cards from Ace's meat haulers at the Truckers' Paradise Truckstop in Chicago. As found below, on February 29, 1968, and thereafter he had cards from a majority. That day he informed Richard Wynant, Ace's vice president, that Local 710 represented the meat haulers and that he wished to speak with someone having authority to negotiate and sign contracts for Ace. Wynant instructed Mischan to contact the Motor Carriers Labor Advisory Council (the Council), stating that that organization was Ace's "labor representative" and that after Mischan spoke to them , they would contact Ace. Mischan telephoned the Council the same day and the next day, March 1, he met with John and Frank Bridge the two officers who administered its affairs. Frank Bridge arranged a meeting for March 8 but, with Local 710's consent, he rescheduled it to March 15 . Mischan appeared for the March 15 meeting and spoke with John Bridge, but no official of Ace appeared . Bridge told Mischan that Ace did not want to meet because the men were not Ace employees, and he said that Ace had a contract with two other Teamster locals. Bridge wrote to Ace on March 15 as follows: Referring to our telephone conversation of this morning, the officers of Local 710 in Chicago have offered to show us the signed cards of all the Lowery drivers - fourteen total - moving perishable products on Ace-Alkire equipment, either leased or owned, into and out of the Chicago area. You may, if you decide to do so, elect to ask the National Labor Relations Board for a supervised election and, if the majority of the men who have signed the cards vote to have Local 710 in Chicago represent them in negotiations, you will be obligated to recognize the officers of that local and proceed with negotiations designed to work out a contract, subject to certification by the Board. If you refuse to negotiate, it would be my recommendation that you discontinue hauling the meat and other perishable products. On Wednesday, March 20, 1968, Local 710 received a letter from Ace refusing its request to negotiate a contract on the grounds that the drivers were employees of Lowery Trucking, not Ace, and that Ace did not believe that Local 710 represented "a majority of employees in an appropriate unit." It suggested that a petition be filed with the Board. On Monday, March 25, 1968, Local 710 picketed the Ace trucks at the Truckers' Paradise and at all places in Chicago where they stopped to load or unload. Apparently all the meat coming from Omaha was delivered, but no loads were taken on, and all the trucks in Chicago that day returned to Omaha empty.' On March 26 Ace filed a charge in Case 13-CP-173 alleging, inter alia, that Local 710 was picketing with an object of forcing or requiring Ace or Lowery Trucking to bargain with it. Ace suspended the meat-haul operation; it was not resumed until April 9.' 2. Interference, restraint, and coercion by Ace On Wednesday, March 27, the meat-haul drivers assembled at the Lowery terminal and met with Lynn Easter, Ace's president, his son, Richard, its operations manager, and Phillips, Ace's attorney. Walter and Ruth Lowery and Truman Wolf, Lowery Trucking's "dispatcher," were also present. The record does not show who initiated the meeting.' Before meeting with the drivers Easter had a conversation in the office with Walter Lowery. Either in that conversation or in another conversation with Lowery that same day Easter said that . he didn't know how, maybe, he could afford to run it if it went union." The Ace officials went outside, where all the drivers were assembled. Easter indicated that he understood that the men wished to discuss some problems. At some time 'Ace attempted to prove that its trucks were physically blocked by Local 710 pickets. There is no competent evidence that any truck was blocked and several drivers testified positively that their trucks were not hindered in any way from moving at will. 'The Regional Director refused to include in the Complaint any allegation, as charged by Local 710, that the suspension was discriminatory. In sustaining such refusal the General Counsel did not adopt the reasons given by the Regional Director , but stated that, in view of the perishable cargo involved , the burden of establishing that the shutdown was due to nonbusiness considerations could not be sustained 'Most drivers who testified stated that they heard about the meeting from other drivers. Slotten testified that Womble told him that Easter wanted to meet with the men. Gates testified, "Truman told us that Mr. Easter was coming to Omaha to talk with the fellows ." Easter testified that Myers had told him the day before that four or five drivers had asked if he could come. Myers did not testify about any aspect of the meeting. Wolf testified, "the drivers called this meeting," but he gave no indication of who the particular drivers were or what the basis was for his statement LOWERY TRUCKING CO. during the ensuing discussion Mutchie stated that all the men had signed cards for Local 710, and this statement was not controverted. In the welter of complaining discussion focused on two items, namely, the fact that the men received nothing extra when Ace required them to remain overnight in Chicago awaiting a return load, and the fact that they had to spend much time in Omaha in connection with' loading and unloading, for neither of which'they received extra compensation or reimbursement. Easter said that he thought they were being paid $5 for each layover in Chicago, and he expressed surprise when told that it was not being received by the men. Easter said that the meat-haul "operation" was a new one for Ace and that he was "taking a good look at this." He said, "if it doesn't start doing better, we are still sending a lot trucks back empty as we aren't able to get them loaded. We are going to close it up." During the time that Ace's officials met with all the employees there was so much simultaneous talk as to make most of the discussion unintelligible, and the officials withdrew to the Lowery office. Shortly thereafter Womble, Ayers, Mutchie, and Hunt, at Wolf' s suggestion, went in to discuss matters further under less confusing circumstances.' The substance of the discussion in the office concerning working conditions was similar to that outside. However, Easter was able to discuss with the men what compensation for loading would cost Ace. Ayers, Hunt, and Mutchie testified, but Easter denied, that Easter said that he would close the operation down before dealing with Local 710. Womble testified that he did not recall that statement, but he did recall Easter saying that he was taking "a close look" at the operation. Mutchie testified that the reason given by Easter was that Ace was already dealing with a union in Des Moines and would not negotiate with a Chicago union. Ace's attorney cautioned the employees that it should be very clear to the drivers that Ace was not threatening to shutdown any operation and that it was not making any promises of any kind to the drivers. Ayers, Hunt, and Mutchie testified as to Easter's statement convincingly. Moreover, their version receives a degree of corroboration from Lowery's testimony that on that same day Easter told him ". that he didn't know how, maybe, he could afford to run it if it went union." It is found that Easter did tell Ayers, Hunt, and Mutchie, and possibly Womble,' that he would close the operation down before dealing with Local 710, and that he said that Ace was already dealing with a union in Des Moines and would not negotiate with Local 710. Meanwhile some of the employees had left the lot, but most remained. The employees who had spoken to Easter emerged and informed them that Easter was ready to deal with the Des Moines local on their behalf but would not deal with a Chicago local since he did not want to have to go to Chicago every time a labor dispute arose. After the meeting two of the drivers, Gates and Womble, discussed the situation. Gates testified, "We got to discussing it and just between me and him, we thought maybe that if we had a petition, . . . maybe we could ... drop 710, because were we afraid that if we didn't Mr. Easter was going to 'They were not elected but went in either on their own initiative or at the suggestion of other employees ; and not all went in at one time. During part of the time Womble gave a statement to Phillips about the events in Chicago on March 25 'It is possible that Womble failed to hear this threat because he was busy conferring with Phillips when that particular statement was made It is also possible that he was being less than frank; he impressed the Tnal Examiner unfavorably as to credibility. 17 pull the trucks off and everybody would be out of a job." On March 29 they consulted Wolf, who, at their request, drafted the following language: March 29, 1968 TO WHOM IT MAY CONCERN THIS IS TO ADIVSE ALL PARTIES CONCERNED, WE, THE UNDERSIGNED DO HEREBY DEMAND THAT OUR NAMES BE WITHDRAWN FROM A PETITION WHICH WE SIGNED WITH TEAMSTER LOCAL NO. 7 10. With Wolf's acquiescence they asked a clerical employee of Lowery Trucking to type it up and she did so. Wolf cautioned the men not to disclose that he had composed the petition. Womble, usually accompanied by Gates, approached the various drivers and solicited their signatures, urging that that would be a means of keeping their jobs and getting back to work. Ten of the 14 drivers signed the petition by about March 31. Womble then mailed it to Ace in Des Moines, where it was received on April 1 or 2.10 Walter Lowery testified that he discussed with Easter the question of layover pay the day of the meeting with the employees, but, he said, "there was nothing that came out of it at that time." In a conversation shortly before the April 9 resumption of operations, he testified, Easter said to him, "Well, we thought we had been paying it all the time," to which Lowery replied that he had not known it was supposed to be paid and that Ace had never been billed. He said that he told Easter he would pay it thenceforth. Lowery testified further as to that conversation as follows: All I remember about it, we were trying to make everybody as happy as we could on the operation. When you get your trucks down for two weeks like myself and I am not making any money, it cost me eight or ten thousand for my trucks sitting on the lot, so I am interested in getting back to work and the drivers were surely interested in getting back to work. I tried to talk and get everything done I could get done. During the first few days of April Myers told various Lowery drivers that when operations were resumed they would receive $5 when laying over in Chicago and $2.50 per hour for unloading in the Omaha area. Shortly after April 9, when operations were resumed, drivers did receive the unloading and layover pay, and their mileage was increased by Lowery Trucking to 9 cents per mile." At least some of the drivers first heard from Myers about the mileage increase. Concluding findings as to interference restraint and coercion by Ace. The evidence is uncontradicted that Easter told the employees at the outside meeting on March 27 that he would close down the meat-haul operation. While the warning may not have been expressly coupled with a reference to Local 710 and its bargaining demand, the circumstances were such as necessarily to imply such coupling. Easter knew that Local 710 represented the employees, he was refusing to negotiate with Local 710, "G C Exh. 8. Womble testified that he also gave a copy of the signed petition to Wolf, but Wolf, as well as Walter Lowery, denied ever receiving it. "The unloading payments were discontinued on April 22, 1968 Further facts as to the mileage increase are set forth below in subsection 3. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he had charged the day before that Local 710 was picketing his trucks for recognition. The employees had never been informed of any possibility of shutdown before Local 710 came into the picture. Thus Easter was letting the employees know that because they had chosen to bargain collectively through Local 710 their jobs were in danger. Plainly he was seeking to undermine Local 710 and destroy its majority by telling the employees that Respondent had the power to, and would, deprive them of employment if they persisted in attempting to bargain collectively through a representative of their own choosing. When Easter spoke inside to Mutchie, Hunt, Ayers, and possibly Womble, he was more explicit; he stated in so many words that he would close down rather than negotiate with Local 710. This message was duly conveyed to the other employees, as Easter expected. It is found that Ace warned the employees that it would shut down the meat operation before dealing with Local 710. It is further found that Respondent thereby interfered with, restrained and coerced the employees in exercise of their rights under the Act and sought to undermine Local 710's majority, all in violation of Section 8(a)(1) of the Act. Easter's statements to the employees on March 27 that he thought they were already receiving layover pay, and his apparently serious discussion with some about the costs that would be involved in granting unloading pay, may have seemed to imply to the employees that these benefits were distinct possibilities. Nevertheless he made no promise. This was made especially clear as to the layover pay by Walter Lowery, who testified that on March 27 Easter insisted that the layover money was supposed to be paid all along but that "nothing ... came out of it at that time." Moreover such promises would have contained a degree of implication that Ace was going to continue the meat operation, which would have run counter to Ace's main purpose at that time of impressing upon the employees that their jobs were in jeopardy. Subsequently, after Ace had in its possession the revocation petition which demonstrated that 10 drivers had responded to its threat of shutdown by withdrawing from Local 710, Easter did instruct Lowery to start reimbursing employees for layovers, and Myers informed the various employees of the institution of that benefit as well as the unloading pay.12 It is found that Ace promised and instituted payment for layovers and for unloading in order to induce the employees to abandon, and refrain from resuming, their efforts to bargain collectively and that Ace thereby violated Section 8(a)(1). 3. Interference, restraint, and coercion by Lowery Trucking While most of the general discussion on March 27 both inside and outside was with Easter, the men also spoke with Ruth and Walter Lowery, and one of the drivers told Lowery that all the men had signed union cards in Chicago. Ayers and Mutchie asked Walter Lowery if they could be placed on other runs. Ayers testified that Ruth Lowery replied that they did not want to place him elsewhere because he was a union sympathizer and might start the same thing again. Ruth Lowery's version of her "it is found that Ace did not authorize layover payments prior to the organizational activities As Ace did not inform the men that they were entitled to the payments and as no adequate reason appears why Lowery Trucking would have withheld the payments or their announcement if in fact they had been authorized, the Trial Examiner has credited Lowery's testimony over that of Easter. reply was that Lowery Trucking could not fire other drivers to give them jobs. Ayers impressed the Trial Examiner as credible and it is found that Ruth Lowery made the statement as he testified." Robbins testified that the day before or after the March 27 meeting he dropped in at the Lowery coffee room and saw, among others, Mr. and Mrs. Lowery. He stated that during a general discussion of the shutdown and of whether Ace would continue the meat run, Ruth Lowery said that if Ace discontinued the meat operation, ". . . the Alkire drivers may as well look for another job because they won't have a job in their trucks." Ruth Lowery did not testify about any remarks she might have made in Robbins' presence. While Ruth Lowery's statement standing alone is susceptible of a noncoercive interpretation," the placing of five or six drivers during the shutdown establishes that it was more sweeping in both substance and tone than called for if its purpose had been only to point out the actual probabilities as to employment. In view of this fact, and in light of Mrs. Lowery's statement to Ayers, it is found that her statement to Robbins was calculated to threaten reprisals against the employees for insisting upon their right to bargain collectively. It is found that Lowery Trucking warned employees that drivers favoring Local 710 would not be given work with other customers. Robbins also testified that on the occasion already referred to Walter Lowery". . . said before he ... [would] put up with this kind of stuff, he would pull his trucks off." Lowery failed to deny what Robbins testified to. However, in view of Robbins' vagueness as to the exact context of the remark, it is found that the General Counsel has failed to establish thereby that Walter Lowery threatened to shut down the Omaha-Chicago, or any other, run before dealing with Local 710. Brittain testified, and Lowery denied, that during the outside meeting on March 27 Lowery said that "he would take his trucks off . . . if it went union." In the absence of corroboration, and in view of the extreme confusion at the outside meeting, it is found that the General Counsel has failed to establish that the statement was made. Slotten testified that about December 15, 1967, he heard a non-Ace driver ask Walter Lowery if he would put some newly acquired trucks on a union run, and that Lowery replied that he would take them off first. This was denied by Lowery, who pointed out that three of his customers, which he named, were unionized. Slotten's testimony as to the incident was vague and the Trial Examiner has therefore credited Lowery's denial. It will be recommended that paragraph 12 of the Complaint be dismissed. Walter Lowery's discussion with the drivers about the possibility that Ace would permanently shut down the meat operation contained no threat of reprisal by Lowery Trucking. There is no evidence that Lowery, rather than the men, initiated these discussions. Moreover the men already knew from Easter that Ace was threatening such a shutdown; the possibility was an established fact. It will therefore be recommended that paragraph 14 of the Complaint be dismissed. Compare United States Rubber Company, 160 NLRB 661, 666, fn. 11. "The Trial Examiner has noted that Mutchie testified that he recalled no conversation about the Union when Mr and Mrs . Lowery were both present "Walter Lowery admitted discussing with various drivers the fact that if Ace shut down, Lowery Trucking would probably be unable to place drivers elsewhere but he said that the reason he gave was that it had no customers using the particular kind of equipment used by Ace. LOWERY TRUCKING CO. 19 Lowery testified that shortly after the men went back to work he, with no suggestion from Easter, decided to increase their compensation to 9 cents per mile. He testified, "and I told Mr. Easter I was doing this. The drivers should be a little more happy and everything else if we give them a little more money." He also testified that .. the events that took place," such as the March 27 meeting, had nothing to do with his decision, and that the reason he gave the increase was that his other drivers were receiving 9 cents per mile and that he "thought the boys at Alkire deserved the same as the rest " This testimony cannot be credited. Lowery testified that the other drivers' pay had been increased to 9 cents "somewhere like" November 1967. It will be recalled that Lowery had increased the Ace drivers' pay to 8-3/4 cents in October 1967. Plainly Lowery Trucking's policy had been to maintain a wage differential; it was only when Lowery decided to cooperate with Easter in persuading the men to renounce and stay out of Local 710 that he decided to have the Ace drivers' pay to catch up with the others'. That these were the considerations that motivated him is disclosed by Lowery's own testimony, quoted above, of what he told Easter. It is found that Lowery Trucking granted the employees a wage increase for the purpose of discouraging membership in Local 710 and of discouraging resort by the employees to collective bargaining. It is further found that Lowery Trucking thereby violated Section 8(a)(1) of the Act. D. The Refusal To Bargain 1. The appropriate unit The Complaint alleges that all over-the-road drivers operating driving equipment under lease agreement between Lowery Trucking Co. and Ace-Alkire Freight Lines, Inc., on Omaha-Chicago runs, excluding all other employees, guards, and supervisors, constitute an appropriate unit. Both Respondents denied the appropriateness of that unit. Lowery Trucking maintained a separate payroll for the drivers working for each of the 7 companies to which it leased its approximately 100 trucks. However all the drivers, as well as its clerical employees, were covered by its hospitalization insurance program. Ace used 62 drivers working out of its Des Moines terminal, 22 working out of the Minneapolis terminal, and approximately 24 working out of the Omaha terminal. Included were 17 who operated Ace-owned equipment, 2 in Omaha and 15 in Des Moines and Minneapolis. While the record is not clear, it would appear that these were all the drivers regularly used by Ace in all its operations. From time to time it also "trip -leased" cargo; i.e., engaged trucks for single trips. The Des Moines and Minneapolis drivers included six city men ; the rest drove over the road, hauling building materials, steel articles, and farm machinery . The six city men and nine of the over-the-road men drove Ace-owned equipment; the rest of the Des Moines and Minneapolis drivers were owner-operators. At the Omaha terminal during the first half of 1968 there were 14 drivers of Lowery equipment, 5 or 6 drivers of equipment leased to Ace by one Ira Irwin, 3 owner-operators, and I other driver for one of the 3 owner-operators. 16 All these were over-the-road drivers. In addition there were two local, or city, drivers, both of whom drove Ace-owned equipment. On their outbound runs all 14 Lowery drivers hauled raw meat, including frozen meat, exclusively; they hauled general merchandise on the return runs to Omaha. The equipment leased by Lowery Trucking to Ace was especially adapted to the Omaha-Chicago meat runs; Lowery Trucking used somewhat different equipment for hauling meat to the West Coast. Irwin's equipment included a single refrigerated trailer. Turner, an Irwin driver, normally hauled meat to Chicago in that trailer, being dispatched by Ace in rotation from the same list and in the same manner as the Lowery drivers. Irwin's other drivers working for Ace hauled hides, grain, and live hogs to Chicago, and from to time Turner was taken off the meat run in order to haul hogs to Chicago. The three owner-operators and the driver for one of them did not haul meat. Irwin was paid on the same basis and the same amount as Lowery Trucking, namely, 32 cents per mile. The various owner-operators working in the Ace system were paid 65 percent of the amount received from Ace's customers, 49 percent specifically stated to be for rental of equipment, and 26 percent for drivers' wages. At one time Ayers drove an Irwin truck hauling meat for Alkire. When Irwin discontinued the lease of that truck, Ayers applied to Lowery Trucking, which for about 1 month gave him fill-in assignments hauling meat for Alkire, then assigned him to a meat-hauling truck leased to another of its customers, and finally accepted his application for an opening on a Lowery truck at Ace. During the shutdown Lowery Trucking placed five or six of the Ace drivers with others of its lessees. There is no other evidence of transfers of drivers between Ace's various lessors or Lowery Trucking's various lessees. The Lowery drivers working out of Ace's Omaha terminal constituted a readily identifiable group, carried by Lowery Trucking on a separate payroll. Ace habitually referred to the meat hauling as an "operation." The drivers were also a homogeneous and comprehensive group, having exactly the same skills and duties, including the specialized duties of monitoring refrigeration equipment and seeing to the steaming out of trailers in Chicago. They made the same Omaha-Chicago-Omaha run, carrying the same cargo on the outbound trips, and substantially the same cargos on the return trips. They were subject to the same uncertainties as to waiting for return loads, sometimes having to overnight in Chicago, and as to waiting for the discharge of their return loads in Omaha. While subject to the same supervision as nonunit drivers, they were dispatched on the basis of a single rotation list which, except for Turner, discussed below, included no other drivers. Normally they did not transfer to other jobs at the Ace terminal or with other lessors or lessees. In view of the foregoing, and particularly since their basic wages were controlled by a different employer, the meat-haul drivers had interests which, to an important degree, were separate from those of the other drivers working out of Ace's Omaha terminal. Similarly, since their day-to-day work was almost entirely under the immediate direction and control of Ace, they had interests which to an important degree were separate from those of the other Lowery drivers. Significantly, until impelled by the pressure of their self-organization, Lowery Trucking paid them a different wage. Except for the fact that he was hired and paid by a different lessor-employer, and occasionally hauled live hogs instead of meat, Turner's principal interests were the "About June 1968 Ace dispensed with the services of the four trucks and drivers last referred to 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same as those of the Lowery drivers." The relationship to Irwin, however, was significant. To that extent Turner had important interests in common with the four or five other Irwin drivers and working out of Ace's Omaha terminal and different from those of the Lowery drivers. It is unnecessary to decide whether a unit including Irwin's meat-haul driver would be appropriate or inappropriate, or would be more appropriate than a unit including only the Lowery drivers. Since he was on the payroll of a different lessor, his exclusion from the unit alleged in the complaint does not render that unit inappropriate." Moreover Local 710 at no time indicated that it would refuse to include Turner in the unit, and his inclusion would have had no effect on Local 710's majority. Even if he should be in the unit, that minor variance would not have rendered Local 710's bargaining request inadequate. See The Hamilton Plastic Molding Company, 135 NLRB 371, 373, enforcement denied in relevant part on other grounds 312 F.2d 723 (C.A. 6). It is found that the unit alleged in the complaint is appropriate. 2. Majority General Counsel's Exhibit 14 lists the 13 employees in the appropriate unit on February 29, 1968; i.e., the drivers who on that date were driving Lowery trucks leased to Ace. General Counsel's Exhibit 15, which also contains 13 names, purports to list all employees in the unit on March 19, 1968 . However the latter list omits Edward Gates, who drove a Lowery truck on the Ace meat-hauling run from March 6, 1968, on. It is found that there were 13 employees in the appropriate unit from February 29, 1968, to March 6, 1968, and 14, including Gates, from March 6, 1968, to at least April 9, 1968." The General Counsel offered in evidence 15 Local 710 designations which bore the duly authenticated signatures of unit employees" and which were also authenticated as to dates. Three designations had been executed in January 1967 before a 7-month hiatus in Local 710's organizational efforts and were rejected by the Trial Examiner as stale . See The Grand Union Company, 122 NLRB 589, 590. Of the 12 cards received in evidence 10 had been signed between December 4, 1967, and February 26, 1968, by unit employees on the February 29 list." Between February 29 and March 19 two unit employees, Wood and Morris, both card signers, were separated, and three men, namely, Gates, Gale, and Hager were employed in the unit, of whom only Gates, who signed a card on March 7, designated Local 710. Accordingly, nine of the cards received in evidence had been signed between December 4, 1967 and March 7, 1968, by unit employees on the March 19 list. The three authenticated cards rejected as stale had been "The record does not show Turner's rate of pay However, the Trial Examiner would reach the same result in this case even if the proof had established that his pay was the same as that of the Lowery drivers. "Ace, in refusing to meet with Local 710, did not base its refusal on the failure to include Turner. Its claim in this connection was on the general ground that the unit was inappropriate and that the drivers were employees of Lowery Trucking; Irwin was not mentioned. "In view of the temporary nature of the shutdown of Ace's meat-hauling operation between March 25 and April 9, the mere fact that some drivers were placed elsewhere by Lowery Trucking did not, without further proof, remove them from the unit "He also placed in evidence a card signed by Turner on March 25 "Ayers, Benton, Brittain, Hayes, Hunt, Morris, Shurtleff, Slotten, Womble, and Wood signed by Robbins, Mutchie, and Lyons. Slotten testified without contradiction that during the meeting on March 27 Mutchie told the Ace representative "that we had all signed" cards for Local 710. This statement of Mutchie's at an open meeting plainly implied acknowledgement and reaffirmation of his own designation of Local 710. It rebuts the inference that because of the lapse of time and the Union's inaction Mutchie's January 1967 designation of Local 710 had lost its vitality. It is therefore found that at all times material Local 710 was Mutchie's duly designated bargaining representative. It is further found that Local 710 had been designated by 11 of the 13 unit employees as of February 29, and by 10 of the 14 unit employees as of March 19. Ace contends that all the cards are invalid as evidence of designation of Local 710 because, inter alia, they were secured by representation that the purpose of the cards was to secure an election, and under the further representation that they were to be used for the restricted purpose of bargaining only with Ace, and not with Ace and Lowery Trucking as joint employers. The cards read in part as follows:" MEAT AND HIGHWAY DRIVERS, DOCKMEN, HELPERS AND MISCELLANEOUS TRUCK TERMINAL EMPLOYEES UNION, LOCAL NO. 710 4217 S. Halsted St. Telephone Chicago, Illinois 60609 CLiffside 4-3200 Date APPLICATION AND AUTHORIZATION Although I am aware that I am not required to sign any dues check-off assignment, or any membership application card, or any other Union form, nevertheless, I desire voluntarily to sign this form and hereby apply for membership in Local 710. Employed by Your Name Starting Date Home Address Class of Work City State S S I am not a member of any Local Union of the I.B. of T. Q I am a member of Local Union No. Book No. and I request a transfer to Local Union No. 710. It is my understanding that I am now employed "The omitted text consists of a checkoff authorization . Ace contends that the authorization is invalid under an Iowa statute , and that the cards are therefore inoperative as designations of Local 710 This contention is without merit LOWERY TRUCKING CO. under the jurisdiction of this Local Union and this request is being made in accordance with the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [art. xviii, Sec. 3(a)]. If agreeable to Local 710, approval of acceptance by Local No. 710 attached hereto. (Your Signature) This copy is to be retained by Local Union No. 710 In support of the first claim Ace cites the testimony of Hunt and Womble. On direct examination Hunt testified that when he signed the card, Mischan did not tell him anything in particular; and when pressed, Hunt replied, "Well, I don't really recall what he did say." On cross-examination he testified in part as follows: Q. Did he say anything about a vote of the drivers? A. I believe he did ask for a vote, I am not sure .... Q. Do you remember anything else being said by him except the vote? A. Not really, no. Q. So that is what you remember most clearly about your conversation that a vote was mentioned by Mr. Mischan? A. As near as I can remember. Now, what the vote was for, I don't know, I didn't even understand what he was talking about when he said it, to tell you the truth. Q. You didn't understand what the card was about? A. Yes, I knew what the card was for .... Womble testified that he did not recall what Mischan had told him about the card he signed but that he signed ".. . with the understanding that most of the other drivers had signed it and it was to be a vote, that this card, I was not joining the Union or anything like that, it was to be a vote amongst the drivers to see if we was going to join the Union." On several occasions he answered in the affirmative when asked if he understood that the cards were "to get a vote," but he said that he was not referring to a vote at the Labor Board. Mischan testified that he told each employee that the card was an application and authorization for membership in Local 710, and that a majority was needed in order to get a contract. His statements as to the purpose of the card were testified by various employees to have been, "... for a union contract with Ace-Alkire" (Ayers); " . . we wanted to get a contract with Ace-Alkire . . ."(Slotten); ". . for union representation" (Benton); "Well, he was going to try to get a union in there, I believe" (Hunt); "... so he could represent us in the Union . . .," and " . . so the Union could represent [us] . . ." in dealing with Ace (Brittain); 11. . . authorizing his union to represent[me] ... with ..." Ace (Gates). Five of the 10 cards of unit employees received in evidence indicated that the signers were already members of Local 710's International, 3 in withdrawal status. There is no evidence that Mischan represented to any employees that the cards were for the purpose of securing a Board election; and the Trial Examiner does not credit Womble's testimony to the extent that he indicated that he himself understood that the purpose of the cards was to secure an election or any kind of vote or poll." It is found that Mischan made no representation to the employees that the purpose of the cards was to obtain an election or that they would be used solely for such purpose. It is further found that by signing the cards the employees intended to and did designate Local 710 as their bargaining representative. "Such understanding, even if held, would not negate Womble's overt action of having signed a card designating Local 710 as bargaining agent. 21 With respect to Ace's second contention, each card received in evidence showed Ace as the signer's employer;" and Mischan testified that in soliciting the cards . the employer he mentioned was Ace. He stated that normally the ICC permit holder is the company dealt with and that he did not tell the employees that he would use the card to seek bargaining with Ace and Lowery Trucking on a joint basis. As to this last, he explained, "To them it is not important." The various items of information called for on a union membership application or authorization card are normally intended to serve as aids to the union in carrying on its operations; they are not intended as limitations of the union's authority. A change with respect to any item does not, per se, cut off the union's authority. Thus, it is hardly arguable that a change in an employee's home address to a nearby location would terminate the union's authority. On the other hand, his move to a distant place might, in appropriate circumstances, warrant the inference that his designation of the union was no longer operative. The same would be true of changes in work classification or employer one has to examine all the circumstances in order to determine whether a designation has ceased to be effective. To the extent, if any, that there may be any limitation on the reach of an employer's designation of a bargaining representative, it would be with respect to a particular job; and even then such limitation would be found not in what is written on the card but in all the surrounding circumstances. In many, but by no means all, cases a change of employer would indicate a different job, and a determination would have to be made as to whether, in the circumstances present, a designation had thereby lost its effectivenes. Assuming that some designations may be limited to the jobs filled at the time the employees signed, it is plain in the present case that the employees were authorizing Local 710 to bargain about their then current jobs. Ace ascribes to Local 710 a "disdain for the statutory rights of employees" because Mischan testified that the question was not important to the employees. This contention of Ace is unsound. What was in fact important to the employees, and their purpose in signing the cards, was to obtain the benefits of collective bargaining, whether with Ace, with Lowery Trucking, or with both, about the jobs they then held. This conclusion is not negated by the fact that most of the employees considered only Ace their employer. It is found that on February 29, 1968, and at all times thereafter, Local 710 was, and it still is, the exclusive representative of the employees in the appropriate unit for the purpose of collective bargaining with Ace, with Lowery Trucking, and with both jointly, within the meaning of Section 9(a) of the Act." 3. The request and refusal It is undisputed that on February 29, 1968, Local 710, offering to prove its majority, requested Ace to enter into negotiations and that it continuously thereafter sought to meet with Ace. The record also establishes that Ace refused to meet with Local 710. See Joy Silk Mills. Inc. v N.L R.B. 185 F 2d 732, 743 (C.A.D.C.), cert. denied 341 U S 914. "Benton's card showed "Alkire." `The revocation petition does not affect this finding. It was signed after, and as a result of, Ace's illegal refusal to bargain and threat of shutdown. See Frank Brothers Company v. N.L.R.B., 321 U.S. 702, 704. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ace contends, inter alia, that its refusal to bargain "was based on its doubt that the Union was majority representative of the drivers ." Ace made the Council its agent for purposes of dealing with Local 710 at least with respect to recognition . There is no evidence that the Council had, or claimed to have, any doubt that Local 710 represented a majority of the employees . It raised no question of majority with Mischan , and its letter to Ace of March 15 gave no inkling of any such question; it suggested a Board election as a right that Ace had rather than as a means of resolving a doubt . Nor is there credible evidence that Easter had doubt as to Local 710's majority. At the March 27 meeting , with all employees present, he was told that the men had all signed cards and no one contradicted the statement ; and nothing Easter said or did indicated the slightest doubt as to its accuracy. On the contrary , he told the employees explicitly that he would not bargain with their union , and that if they insisted, they would have no jobs, all this without any mention of the question of majority or of the desirability of determining majority through an election . It is found that Ace had no good-faith doubt of Local 710's majority. Ace also contends that its refusal was based on doubt as to the appropriateness of the unit . Here again none of Ace's actions indicate a good-faith doubt as to such appropriateness. It did not raise that issue in the discussions which took place prior to its letter of March 19 finally refusing to meet with Local 710. The Trial Examiner is convinced, and finds, that this claim was not made in good faith . It is noted that even a good-faith doubt as to appropriateness of unit is not a defense to a refusal to bargain . Tom Thumb Stores, 123 NLRB 833; see also N.L.R.B. v. My Store, Inc., 345 F.2d 494, 498, 2 (C.A. 7), cert. denied 382 U.S. 922. Ace contends, further, that it refused to bargain because the Lowery drivers were not its employees. Like the question of appropriateness of unit, this is basically a legal question so that an employer refuses to bargain on such ground at his peril, even if acting in good faith. N.L.R.B. v. Keystone Floors, Inc. d/b/a Keystone Universal Carbon Company, 306 F .2d 560 (C.A. 3), enfg. 130 NLRB 4. Finally, Ace contends that it did not violate Section 8(a) (5) because no request to bargain was made which included Lowery Trucking. As they were joint employers, a demand on either was sufficient to charge both. See Cussins & Fearn Co., Inc. d/b/a Buckeye Mart, and Fir Shoe Corporation, 165 NLRB No. 9, fn . 15 (TXD), enfd. 405 F.2d 1211 (C.A. 6); see also Ref-Chem Company and ano., 169 NLRB No. 45 . Distinguish Lane Drug Company v . N.L.R.B., 391 F.2d 812 (C.A. 6), cited by Respondents, where the failure to name some operating corporations in a request to bargain was held by the court to result in a failure to indicate a desire to bargain concerning the employees of such corporations. In any event, this is a belated contention ; Ace took no steps to have Lowery Trucking brought in to participate in the negotiations but simply disclaimed all obligation to bargain. Its letter of refusal and its actions on March 27 made plain that any attempt by Local 710 to attempt to arrange joint negotiations would have been futile and, further, that Ace's various protestations as to its reasons for refusing to negotiate lacked good faith . It informed the employees that if they insisted on bargaining through Local 710, they would be out of jobs ; it entered into direct negotiations with employees to explore the costs involved in compensation for loading; and it ultimately promised and granted such compensation and compensation for layovers without giving the employees' bargaining representative an opportunity to discuss the matters. Plainly, after such procedures, the Board election to which Ace sought to relegate Local 710 could not have been a fair one. As already stated, the request to bargain directed to Ace, followed by Ace's refusal to bargain, made Lowery Trucking, as a joint employer, responsible for the violation of Section 8(a)(5). See Cussins & Fearn Co., Inc., supra. However, Lowery Trucking' s violation was more direct. By March 27 Lowery knew that a majority of his Ace drivers had signed cards for Local 710 and that Local 710 was seeking to bargain collectively on their behalf. Moreover, on April 3 he had received a copy of the charge in this case in which Local 710 alleged that it was the drivers' exclusive bargaining representative but that Lowery Trucking, as well as Ace, had refused to bargain. Nevertheless, shortly after April 9, 196$, without notifying Local 710 of his intention or making any effort to negotiate about the matter , he changed the employees' wages. Local 710 had not waived its right to bargain for the employees with Lowery Trucking and Lowery had no reason to think so. In this connection the Trial Examiner notes that Lowery Trucking filed an answer in this case in which it admitted that Local 710 had requested both Respondents to bargain. For these reasons it is found that Lowery did not refrain from broaching the question of a wage increase to Local 710 because it believed that Local 710 had waived its bargaining rights or because it believed that such approach would be futile. This finding is strengthened by the fact, already found, that Lowery Trucking granted the increase for the specific purpose of discouraging membership in Local 710 and of discouraging resort by the employees to collective bargaining . Indeed, Lowery's own testimony as to his conversations with Easter about layover pay and the mileage increase-"... we were trying to make everybody as happy as we could on the operation . . .-make it apparent that the mileage increase was part of an effort by Lowery Trucking to join with its co -employer, Ace, in granting the already threatened employees benefits in order further to coerce them not to attempt to bargain collectively. Plainly Lowery Trucking's action in bypassing Local 710 when granting the wage increase in April 1968 was a violation of its obligation to bargain as required by the Act. It is found that Respondents refused to bargain with Local 710 that such refusal was based upon their rejection of the principle of genuine collective bargaining by employees through representatives of their own choosing. It is further found that by refusing to bargain with Local 710 on February 29, 1968, and thereafter, by bargaining with the employees directly on March 27, and by instituting changes in April 1968 with respect to mileage payment, compensation for loading, and reimbursement for layover expenses, without bargaining about such matters with Local 710, Respondents violated Section 8(a)(5) of the Act. See Cussins & Fearn Co., Inc., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondents set forth above in section III, occurring in connection with their operations described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. LOWERY TRUCKING CO. 23 V. THE REMEDY As it has been found that Respondents have engaged in certain unfair labor practices , it is recommended that the Board issue the Recommended Order set forth below requiring them to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. It has been found that the acts of interference , restraint and coercion engaged in by both Respondents were specifically calculated to undermine Local 710 and destroy its established majority. Merely requiring Respondents to cease and desist in the future from such conduct would not suffice to restore the situation to what it was prior to those unfair labor practices. If an order were so limited, such restoration could be accomplished only by means of a repetition by Local 710 of its organizing campaign, under the added burden , moreover, of residual effects of Respondents' coercive actions; and in the meantime Respondents would enjoy the advantages flowing to them from their illegal actions. But a responsibility to restore the situation to what it was prior to the unfair labor practices, to the extent that such restoration is reasonably possible, rests upon the Board . As Respondents were under a duty to bargain with Local 710 before their respective acts of interference, restraint, and coercion on March 27 and thereafter , the appropriate remedy for the effects of those acts apart from their violation of Section 8(a)(5), is that Respondents be required to bargain with Local 710, and it will be so recommended . This remedy is, of course, also appropriate to remedy Respondents' violations of Section 8(a)(5) of the Act. Respondents' unfair labor practices, so specifically and calculatedly directed at the employees' basic right to bargain collectively, indicate a disposition on their part not to comply with the requirements of the Act. For this reason it is recommended that Respondents be required to cease and desist from infringing in any manner on the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondents, Walter Lowery and Ruth Lowery doing business as Lowery Trucking Co., and Ace-Alkire Freight Lines, Inc., are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents are, and at all times material have been, each an employer within the meaning of Section 2(2) of the Act. 3. Respondents are, and at all times material have been, each an employer of the employees in the appropriate unit, within the meaning of Section 8(a)(5) of the Act. 4. Meat and Highway Drivers, Dockmen , Helpers and Miscellaneous Truck Terminal Employees Union, Local No. 710, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 5. All over-the-road drivers operating driving equipment under lease agreement between Lowery Trucking Co. and Ace-Alkire Freight Lines, Inc. on Omaha -Chicago runs, excluding all other employees, guards, and supervisors as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purpose of collective-bargaining within the meaning of Section 9(b) of the Act. 6. At all times since February 29, 1968 , Local 710 has been, and it still is, the exclusive representative of all the employees in the appropriate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with Local 710 as the exclusive representative of all their employees in the appropriate unit, Respondent have each engaged, and are engaging, in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondents have each engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, Respondents, Walter Lowery and Ruth Lowery, doing business under the name Lowery Trucking Co., and Ace-Alkire Freight Lines, Inc., and their respective officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing the compensation or other terms or conditions of employment of employees in the appropriate unit without first offering Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees Union,-Local No. 710, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , opportunity to negotiate concerning such matters. (b) In any other manner -refusing to bargain collectively with Local 710 as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or any other terms or conditions of employment. The appropriate bargaining unit is: All over-the-road drivers operating driving equipment under lease between Lowery Trucking Co. and Ace-Alkire Freight Lines, Inc., on Omaha-Chicago runs, excluding all other employees, guards, and supervisors as defined in the Act. (c) Threatening employees with loss of employment for joining, remaining members of, or seeking to bargain collectively through, Local 710 or any other labor organization. (d) Promising or granting employees additional compensation to induce them not to become or remain members of, or to seek to bargain collectively through, Local 710 or any other labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Upon request, jointly meet and bargain collectively with Local 710 as the collective-bargaining representative of the employees in the appropriate unit, and, if an 24 DECISIONS OF NATIONAL understanding is reached , embody such understanding in a signed agreement. (b) Post at their respective offices and places of business located in Council Bluffs , Iowa, and Omaha, Nebraska, copies of the attached notice marked "Appendix B."' Copies of said notice , on forms provided by the Regional Director for Region 18, after being duly signed by Respondents' respective representatives , shall be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps Respondents have each taken to comply herewith." IT IS ALSO RECOMMENDED that the allegations that Respondent Lowery Trucking threatened to discontinue supplying trucks to Respondent Ace and that it told employees that Respondent Ace would shut down the Omaha-Chicago run before dealing with the Union be dismissed. "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 Appeals 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 : "Respectively notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondents have each taken to comply herewith." APPENDIX B 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 National Labor Relations Act, as amended, we hereby notify our employees that: After a trial at which all parties had the opportunity to present their evidence, a Decision has been issued LABOR RELATIONS BOARD finding that we violated the law and ordering us to post this notice and actually do what we say in the notice. WE WILL, upon request , meet with and bargain collectively with Local No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , as the collective-bargaining representative of the employees in the appropriate unit, and if an understanding is reached, embody the understanding in a signed agreement. The appropriate unit is: All over-the-road drivers operating driving equipment under lease between Lowery Trucking Co. and Ace-Alkire Freight Lines , Inc. on Omaha-Chicago runs, excluding all other employees, guards, and supervisors as defined in the National Labor Relations Act, as amended. WE WILL NOT unilaterally change your compensation or any other term or condition of employment without first offering Local 710 opportunity to negotiate concerning such matters. WE WILL NOT threaten you with loss of employment for joining, remaining members of, or seeking to bargain collectively through Local 710 or any other labor organization. WE WILL NOT promise or grant you additional compensation to induce you not to become or remain members of, or seek to bargain collectively through, Local 710 or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to bargain collectively through representatives of your own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Dated By [FIRM NAME] (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401 , Telephone 612-334-2611.