New Truck Transport, Inc.

NEW TRUCK TRANSPORT, INC. 545 New Truck Transport, Inc. and Thomas O'Hearon and James Johnson and William Shuff and Claudino Rivera. Cases 28-CA-1699 and 28-CA- 1761 September 22, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On June 19, 1969, Trial Examiner Herman Marx issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to those allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and 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 adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, New Truck Transport, Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'The Respondent excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect We find no such basis for disturbing the Trial Examiner's credibility findings in this case Standard Dry Wall Products . Inc , 91 NLRB 541, enfd 188 F 2d 362 (C A 3) DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE HERMAN MARX, Trial Examiner- The complaint, as amended, alleges that an employer named New Truck Transport, Inc. (herein the Company or Respondent), has violated Section 8(a)(3) of the National Labor Relations Act, as amended (herein the Act'), by discriminatorily withholding work from six employees, Robert Bean, William O. Shuff, James C. Johnson, Henry M. Chayrez, Claudino Rivera, and Thomas A. O'Hearon, because they had engaged in union or other concerted activities protected by the Act; and has violated Section 8(a)(1) of the Act by such discrimination and other misconduct, including interrogation of employees concerning their union membership, activities and desires: and threats to employees of discharge. cessation or curtailment of operations, loss of work or other reprisals if they engaged in such activities.2 The Respondent has filed an answer which, in material substance, denies the commission of the unfair labor practices imputed to it. A hearing on the issues has been held before me, as duly designated Trial Examiner The General Counsel and the Respondent appeared through respective counsel and were afforded a full opportunity to adduce evidence. examine and cross-examine witnesses, and submit oral argument and briefs.' Upon the entire record, from my observation of the demeanor of the witnesses, and having read and considered the briefs filed with me since the close of the hearing, I make the following findings of fact: FINDINGS OF FACT 1. NATURE. OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD The Company is an Arizona corporation; maintains its principal office and place of business in Phoenix. Arizona. where it is engaged in the trucking business; and is. and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business operations during the year preceding the issuance of the complaint, the Company has sold goods or furnished services valued in excess of $50,000 directly to customers located outside the State of Arizona, and has purchased. transferred, and had delivered to its said place of business goods valued in excess of that sum, which were transported to Arizona from points located outside thereof. By reason of such interstate operations and transactions, the Company is, and has been at all material times, engaged in commerce '29 U.S.C 151, et seq 'The complaint was issued on July 31. 1968, was amended on September 25, 1968, and, as amended, is based upon a charge filed in Case 28-CA-1699 on May 6, 1968, and upon another filed in Case 28-CA-1761 on September 3, 1968 Copies of both charges, the complaint, the amendment thereof, a notice of hearing, and an order consolidating the charges for hearing have been duly served upon the Respondent and all other parties respectively entitled to such service. A hearing upon the issues in this proceeding was held at Phoenix, Arizona, on February 25, 26, and 27, 1969 'Since the close of the hearing, the General Counsel has filed a motion for the correction of the hearing transcript, and has submitted proof of due service upon the Respondent No opposition has been received; the motion is granted, and the transcript is corrected in the particulars set forth in the motion. The transcript is garbled at a number of other points, but as the record adequately sets forth the material facts and issues, I deem it unnecessary to enter an order making the additional corrections 178 NLRB No. 83 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Sections 2(6) and 2(7) of the Act. Accordingly, the National Labor Relations Board has jurisdiction over the subject matter of this proceeding It. THE I ABOR ORGANIZATION INVOLVED The Transport & Local Delivery Drivers, Warehousemen & Helpers, Local Union No 104 (herein the Union) is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company's labor force includes approximately 16 truck drivers, and its trucking operations are subject to overall management by its corporate secretary and vice-president, Forrest L. (Barney) Cagle (on occasion, herein Forrest), who is, and has been at all material times, a supervisor within the meaning of Section 2(11) of the Act. The drivers are subject to direct supervision by one or more dispatchers, who have the lunction of assigning hauling tasks to the drivers and supervising the performance of their duties, and reprimanding them for deficient performance as occasion requires. Cagle's nephew. Clinton C. Cagle (on occasion, herein Clinton), formerly held the position of dispatcher. assuming it in 1965. He was then introduced to the drivers by his uncle as the Company's "manager," and while serving as dispatcher was "in charge of the dispatching department As the record establishes, without dispute, Clinton was at all material times while holding the position of dispatcher, a supervisor within the meaning of Section 2(11) of the Act. There is no dispute that Clinton is now a driver in the Company's employ, but there is some conflict as to the date when he assumed that post and discontinued his supervisory functions. A resolution of the issue may have a bearing on the question whether certain conduct of his is imputable to the Company. Clinton testified that he became a driver. and thereupon ceased his dispatching functions, about April 5 or 6, 1968, but in a signed and sworn pretrial statement he gave to the General Counsel in June 1968. about eight months before the hearing, he said, "I commenced driving on April 28, 1968 " That that statement is correct, and his relevant testimony is not, is attested by the undisputed fact that Clinton replaced Robert Bean one of the alleged discriminatces, as a driver, and that Bean, as shown by the Company's records, worked until April 25, 1968. Clinton, in short, held his supervisory position as dispatcher until at least that date Another dispatcher, Edward A. Good, who still holds that post, performing substantially the same supervisory functions as those performed by Clinton, similarly is now, and has been at all material times, a supervisor within the meaning of Section 2(1 1 ). 'Clinton claims that he held the post of "manager" for only about 3 months, but there is no indication that the employees were told at any time prior to the time of the alleged unfair labor practices imputed to him that he was no longer "manager" In any case, he held supervisory status as dispatcher at least at all times of misconduct imputed to him It may be noted, in that regard , that the Respondent's answer, by not denying pertinent allegations of the complaint , in effect admits that Clinton was a supervisor within the meaning of See 2 ( 11) of the Act at all material times See See 102 20 of the Board's Rules and Regulations. On March 7, 1968, the Union filed a petition with the National Labor Relations Board, seeking certification as bargaining representative of the Company's drivers. The upshot was a Board-conducted election held on April 13, 1968,5 and won by the Union by a vote of 9 to 5. B The Allegations of Unlawful Interrogation and Threats The election was preceded by an organizational campaign among the drivers, in which two of them, Thomas A O'Hearon and James C. Johnson, played a major role. O'Hearon had discussed organization of the drivers with a representative of the Union early in March, prior to the filing of the petition, and had received from the Union's agent "authorization cards" which, upon execution, in substance reflect support for the Union by the respective signatories. O'Hearon and Johnson circulated the cards among the other drivers, and secured, in all. about a dozen signatures. A driver (unidentified) told Good at some point in March that there was organizational activity among the drivers, and that Johnson was seeking to persuade them to join the Union, and Good passed the information on to Forrest and Clinton Cagle. Good also interrogated Johnson concerning union activity, doing so on March I I in the dispatcher's office, inquiring of Johnson "who went for the Union and who all signed up for it." Johnson replied that he did not know.' In or about the early part of April, prior to the election, Forrest Cagle summoned a group el drivers, including Shuff, O'Hearon, Johnson, Chayrez, and Rivera, to a shack on the premises called the "drivers' room," where the drivers passed time waiting for assignment, and, in substance, asked each individually why he desired unionization, and what his "gripes" or "problems" were. Members of the group replied, in substance, that their paychecks were frequently "short" of what was due them. Forrest also interrogated Rivera about a union matter after the election, doing so on or about May 1I in the "drivers' room" where Rivera was engaged in completing some trip documents. On that occasion. Cagle asked Rivera to disclose who had been at a union meeting the night before, and Rivera replied that he did not know because he had not attended. Cagle said he was "sure" he knew who had attended, to which Rivera responded. in substance, that if Cagle had the information, there was no need to ask him for it. Cagle then said that it he found out that Rivera had lied about the meeting, he would discharge Rivera.' 'Unless otherwise specified, all dales mentioned below occurred in 19b8 '1 do not credit a denial by Good that he talked to any of the drivers about the Union He later contradicted himself, stating that he discussed the organization with "the drivers that didn 't want to go union," and identifying five such employees 1 do not believe that Good's discussions were so limited, and have based the finding regarding the interrogation of Johnson on the latter's relevant testimony , which I credit 'I do not credit Forrest Cagle's denial that he interrogated employees "in regard to the union " He gives no account of a conversation with Rivera on or about May It, and his testimony contains no denial that he threatened Rivera with discharge on that occasion. Moreover, the Respondent did not call a dispatcher named Don Brechler, who was present during the interrogation in May described by Rivera Forrest Cagle concedes that he asked each of a group of drivers "individually" what his "problem" was, and that each said he "thought" that he was being cheated on his paychecks The episode is plainly the one described by various drivers as the occasion when Forrest Cagle queried individuals about their NEW TRUCK TRANSPORT, INC. 547 Forrest Cagle's query of Rivera as to the identity of those at a union meeting was plainly of a coercive character, harnessed qs it was to a threat to discharge Rivera if Cagle later learned that Rivera had replied untruthfully to the question. The preelection interiogation by Good and Forrest was also likely to have an inhibiting effect upon the employee,' freedon to engage in organizational activities. This is particularly true of Good's inquiry, at a time when the election was in prospect. seeking the names of those who had manifested support for the Union. Significantly enough. Johnson, although active in organizing the employees, replied that he did not know the identity of union adherents --a response that suggests that Good's inquiry induced in Johnson a fear of reprisal against himself and others because of their prounion sentiment.' Moreover, as will presently appear, the record establishes a pattern of discrimination by the Respondent against various drivers as a reprisal for their union activity or interest. In the light of the total record, I find that the Company interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(I) of the Act, as a result of Good's query of Johnson as to "who went for the Union and who all signed up for it"; Forrest Cagle's inquiries of the employees as to why they desired unionization, and his interrogation of Rivera as to the identity of those in attendance at a union meeting.' Much of the misconduct attributed to the Company by the General Counsel involves Clinton Cagle On one occasion during the pendency of the representation petition, encountering Rivera on the Company's premises, he asked Rivera if he "knew anything about the union," and Rivera replied in the negative Clinton then said that "we can't afford to go union" and that "(i)f we go union we are going to have to close the gates." In somewhat similar vein, Clinton told Johnson in the Company's yard. while the petition was pending, that "if the union won the vote they (the Company) would probably have to lock the gates", and asked Johnson why he "wanted to be responsible for making these guys lose their jobs" Johnson replied that he did not seek such a result, nor see how he could he held responsible for it. Much the same pattern also appears in iemarks Clinton made one evening before the election, either late in March or early in April, to a group of drivers. including Chayrei, Bean, O'Hearon, Shuft', Rivera. and Johnson. These employees had been to a meeting at the Union's headquarters in Phoenix, and were standing on the sidewalk in front of the meeting place when Clinton and a driver named Hayes passed in the vicinity in Clinton's "gripes," and it is evident. too, that the interrogation about "problems" or "gripes,' even without any specific reference to unionization, amounted, in the context of circumstances. to an implied inquiry into the employees' reasons for desiring union representation In any case , I have no doubt that he expressly asked each employee on the occasion in question why he desired unionization. Forrest admitted as much in a sworn pretrial statement he gave the General Counsel 'See Bourne Co v JV L R B , 332 F 2d 67 (C A. 2) 'Clinton Cagle admittedly asked Johnson if he was involved with the Union, but the context of the inquiry does not appear , nor does the period, except that the incident occurred after March 7, 1968 A determination whether the query violated the Act would add nothing of substance to this case. I also make no finding that Forrest Cagle' s threat to discharge Rivera violated the Act because Rivera's testimony in that regard was inadvertently overlooked in the course of passing upon and granting a motion by the Respondent, at the close of the General Counsel's case-in-chief, to dismiss allegations of the complaint to the effect that Forrest Cagle had unlawfully "threatened" employees with discharge pickup truck."' One or more of the sidewalk group waved at the truck, and Clinton and Hayes stopped and joined the group. Clinton then invited the others for coffee at a nearby restaurant There, over coffee. Clinton told the others that if they chose the Union. the Company would either lease or sell its trucks, or go out of business, and the employees would be out of work. O'Hearon, stating that some of the drivers had "already signed for the union." asked. "No matter which way it (the election, as I inter) goes, you are going to fire us, aren't you'?" and Clinton replied, "You know it." Alter coffee, as Clinton and Hayes were leaving the premises. Clinton told the others who were departing as a group: "Don't call us. We will call you."' 2 Clinton's remarks about closing the plant or its gates, leasing or selling the trucks, and going out of business. were no mere predictions of the economic consequences of unionization, but added up to threats of job loss for the employees if they chose unionization. There is good reason to believe that during the restaurant discussion O'Hearon, at least, construed the relevant remarks as a threat of reprisal against those supporting the Union, for after Clinton made them. O'Hearon, noting that some "had already signed for the Union" asked Clinton whether these would be discharged irrespective of the election result, and Clinton agreed that that would be the case. And, indeed, in the context of what had gone before. Clinton's parting remark "Don't call us. We will call you" was as much as to tell the drivers who had been to the union meeting that they would be denied work because of their support of the Union Employees who were thus threatened by Clinton could reasonably interpret his allusions to plant closure and the sale or lease of' the trucks in the event of unionization as a similar prod to abandon unionization on pain of losing their jobs, and there would be added warrant for such an interpretation in Clinton's omission to couch his purported forecasts "in terms of demonstrable 'economic consequences.""' The coercive thrust in Clinton's forecasts of plant closure. truck dispositions, and consequent loss of employment is manifest. and I thus find that the Company interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby violated Section 8(a)(f) of the Act, as a result of (1) Clmton's inquiry of Rivera it "Rivera testified that the episode occurred alter the election, but I believe him to be mistaken According to other witnesses, including Clinton, the incident took place late in March or early in April, and I am satisfied that their recollection of the period is better than Rivera's "Allegations of unlawful surveillance in the complaint rest on the occasion when Clinton passed the meeting place in his truck The allegations were dismissed on the Respondent's motion for reasons that appear in the record, and need not be repeated lyre "Clinton does not deny that he made the remark "Don't call us We will call you. ' nor that he told the employer's that the Company would sell or lease the trucks in the event the employees chose union representation, and he admittedly said something about closing the plant gates , testifying that Johnson "kept asking me what the company was going to do," and that he replied that he did not know. but that "if I was the company I would close the gates " I ant persuaded that Clinton was somewhat more assertive on the subject of unionization than his testimony would lead me to believe, and that the accounts of Shuff, O'Hearon, Johnson and Chayrez, taken together, reflc,,t the substance of what was said on the subject at the restaurant Findings as to the restaurant discussion are based on relevant portions of the four employees' testimony "N L R B v Sinclair Company 397 F 2d 157. 160 (C A 1) See also, N L R B v Kalmar Laboratories , Inc , 387 1- 2d 833 (C A 7), holding (at p 837) that an employer's prediction of ''untoward economic events (as a result of unionization ) may constitute an illegal threat if he has it within his power to make the prediction come true " 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he "knew anything about the union," and the related remark that if the employees were unionized , "we (the Company) are going to have to close the gates"; (2) Clinton's similar statement to Johnson that "if the union won the vote they (the Company) would probably have to lock the gates"; (3) Clinton's remarks in the restaurant to the effect that in the event the employees chose the Union, the Company would either lease or sell the trucks. or go out of business, and the employees would be out of work, (4) Clinton's affirmation that employees who supported the Union would be discharged, irrespective of the election result; and (5) Clinton's remark upon his departure from the restaurant: "Don't call us. We will call you." I reach the same result with some remarks by Clinton that did not, in terms, refer to unionization. As Johnson testified, on March 19, on the Company's premises, he told Clinton that the latter "was going to have a hard time starving us out," and that Clinton replied that "he wasn't trying to starve us out, that he just wasn't going to give us anything to do." At the time of the conversation, Johnson had been given no work for eight consecutive days, although reporting in person at the plant each day; he had actively solicited drivers to sign union authorization cards; several days after the filing of the representation petition, Good had asked him if he knew who was supporting the Union; and against that background. it is evident that Johnson believed that he was being denied work because of his union activity, and that the implied thrust of his statement that Clinton "was going to have a hard time starving us out" was that Clinton would have a "hard time" deterring union adherents from their course by withholding work from them. One may fairly infer, too, and I find, from the thrust of Clinton's reply. and the record as a whole, that he understood Johnson's meaning. As will presently appear in greater detail, the record establishes a pattern of discrimination against Johnson and other prounion drivers soon after the organizational campaign began by withholding work assignments from them and dispatching employees with less seniority who were known to the management to be opposed to union representation. The sum of the matter is that I read Clinton's relevant statement, in the total setting, as meaning, in substance, that he would withhold work from Johnson and others because of their support of the Union: and find that as a result of the statement, the Company interfered with, restrained, and coerced employees in the exercise of Section 7 rights. and thereby violated Section 8(a)(1) of the Act." C. The Alleged Discrimination The Company pays a driver a percentage of its load revenue for hauling cotton, fertilizer and other farm products: at an hourly rate for driving distances up to 50 miles - - defined as "short hauls," and for longer distances - defined as "long hauls" -at an hourly rate for the first 50 miles, and on a mileage basis thereafter Drivers generally prefer "long hauls" because they earn more from them. Some, at least, do "yard" and "shop" work or other chores at the Company's premises as assigned, and are paid at an hourly rate for such duties. Shop work mainly involves working and cleaning chores in the Company's truck and maintenance shop and "the ability . . . to listen "I do not credit a denial by Clinton that he made the remarks Johnson imputes to him These are of a piece with his statement "Don't call us. We will call you" and other coercive remarks made by him to the mechanic." and yard work consists of miscellaneous tasks such as moving trucks in the yard; operating a Hyster vehicle there, loading and sacking "pieces of pipe;" and cleaning and sweeping chores Before the start of union activity among the drivers, the Company had a policy of making work assignments to its drivers in the order of service seniority, and provided the driver with relative seniority "could handle" the work involved, and as Good testified, even where a driver specialized in hauling a commodity (cotton, for example), it no work were available in his speciality, he would be given preference of assignment over his service juniors for a type or work he did not ordinarily do.' S The General Counsel, pointing to the coercive remarks made by Clinton, notably his threats to withhold work from union supporters, maintains that that is what the Company did with respect to the six alleged discriminatees, asserting, in substance, that in disregard of its seniority policy, after the organizational campaign began, the Company gave preference in assignment to five drivers, Carl Byers, Edward Hill. Sr., Edward Hill, Jr., Ralph Tyler, and David Hayes (Clinton's driving companion on the evening of the restaurant discussion) All live were hired in the fail of 1967: were junior in total service to the alleged discriminatees, with the possible exception of Rivera who entered the Respondent's employ in October 1967; and were all deemed by the management prior to the election to be opposed to unionization.", For convenience of discussion, the five will on occasion be referred to below as the "non -union" drivers or employees. The case of each alleged discriminatee varies in noteworthy respects from that of the others, and thus the question whether work was discriminatorily withheld from each will be separately resolved below following findings particularly pertinent to each. I James C. Johnson Johnson has worked for the Company over a period of some years, "specializing" in hauling cotton during the "Findings as to the assignment policy and practice are based on testimony by Good and Clinton Cagle Forrest Cagle, in contrast, would lead one to believe that seniority played no significant role in assignments, for he testified that the governing considerations were "Their (drivers') ability to handle the equipment: their ability to do a job for the public; and to do a job for me" I am unable to accord any weight to these self-serving, subjective generalizations, particularly as Good and Clinton were the ones who actually did the dispatching prior to, and during, the period of union activity culminating in the election on April 13 It may be noted, too, that if Forrest, as he claims, serves as a dispatcher , he began to do so late in April when Clinton discontinued his dispatching duties It may be that Forrest has done some dispatching work since Clinton became a driver, but the Company hired a replacement, Don Brechler, soon thereafter According to Rivera, Good, and Brechler have been the only two dispatchers since, and that testimony is given corroborative support by the fact that there were only two dispatchers, Good and Clinton , prior to Clinton' s assumption of other duties Why the Company should have three after Brechler was hired, as Forrest would lead one to believe , does not plausibly appear. In short, I do not credit an intimation in Forrest's testimony that he serves as a regular dispatcher , and has functioned as such since Brechler was hired in or about the early part of May. "Good testified that after the union activity began and prior to the election, the management (we) learned that the five were opposed to union representation because "they were talking against it ," and that he spoke to each on the subject The fact that five votes were cast against the Union is not a factor in the finding that the Company deemed Hayes, Tyler, Byers, and both Hills to be opposed to unionization The vote, needless to say, was by secret ballot, and the record does not establish how any of the employees voted. NEW TRUCK TRANSPORT, INC. 549 Arizona "cotton season" which lasts several months, beginning in the fall and ending by the middle of February. However, he hauls other commodities and performs yard work, as assigned. As previously stated, he was active in the organizational campaign in March, soliciting support for the Union among the drivers, and securing execution of a number of authorization cards. The management, I find, knew at least as early as March 11 that Johnson had been attempting to organize the employees. Good admittedly received information to that effect from a driver in March and passed it on to Forrest and Clinton Cagle, and although the precise date of the receipt of the information is not established, it is of some significance that Good sought on March II to ascertain from Johnson the identity of employees who had "signed up" for the Union. The very tenor of the question, in the light of all circumstances, warrants a conclusion that the management then knew or believed that Johnson was soliciting support for the Union and was in a position to furnish the information sought. The General Counsel maintains that during the period beginning March 13 and ending May 2. the Company discriminatorily withheld work from Johnson on 37 specified days. As the Respondent's records establishes, Johnson did not work on such dates." There is much in the record that points to a discriminatory attitude toward Johnson during the period in question. He had substantial earnings in the last workweek in February, and the first two workweeks in March," but his work assignments and earnings fell off markedly in the second half of March, and in April, although, as he testified credibly and without contradiction, during the six-week period he usually either reported for work at his customary morning hour, or inquired about it by telephone. Significantly, in the workweek that included March 11, the date on which Good interrogated him, Johnson earned but $15, and nothing at all in the following workweek, during which Johnson, alluding to the failure to give him work, told Clinton Cagle that the latter "was going to have a hard time starving us out", and Cagle replied that he "just wasn't going to give us anything to do," thus intimating, as stated earlier, that he would withhold work from Johnson and other union adherents. This of itself points to a discriminatory reason for the steep decline in Johnson's earnings in a substantial number of weeks after union activity began among the drivers from the level preceding it, and that view of the matter is reinforced by Clinton's remark "Don't call us. We will call you" on the occasion of the restaurant discussion late in March or early in April. Against the background of Clinton's remarks, concrete evidence of discrimination against Johnson appears upon an examination of Johnson's work and payroll records for the period beginning March 13 and ending May 2, as compared with the records, for the same period, of the five nonunion drivers, all of them junior in service to "The complaint, prior to the hearing, alleged discrimination against Johnson on 23 dates during the relevant period, but the number alleged was enlarged as a result of amendment of the pleadings at the hearing, upon the General Counsel's motion, and over the Respondents objection, to conform to the evidence . The Respondent did not seek added time to meet the amendments, although informed that such time would be granted if requested, and need for it were shown. "Johnson earned $106 25 for the week ending February 25; $176 05 for the week ending March 3, and $108 75 for the week ending March 10 (G.C. Exh. 2) Johnson. Each of the five earned substantially more than twice as much as Johnson during the period, and at least one (usually more) of the five worked on each of the 37 days in question." In view of the seniority policy described earlier, the fact that the cotton season had ended some weeks before the start of union activity among the drivers will hardly suffice as an explanation, particularly as Johnson had substantial earnings in workweeks between the end of the season and March 11. the date of his interrogation by Good. Moreover, Johnson hauled other products and did yard work, as the record attests The Respondents' explanation of the disparity is unconvincing In fact, the two dispatchers, Good and Clinton, give none. Forrest Cagle claims that during the period in question he "offered Mr. Johnson all kinds of jobs," including hauling fertilizer, but that the latter rejected them, and that over a period of years, Johnson had "refused" to make "long hauls." Johnson concedes that on two occasions during the period he declined to haul certain heavy equipment (a "road grader" and "caterpillar") because he felt he lacked the requisite skill, and he admittedly has been averse to making "long hauls" that require night driving because he feels that his eyesight is not up to such work, and has on occasion rejected such trips, but it does not appear that this occurred during the relevant period. Neither Good nor Clinton makes any claim that he passed over Johnson because of any attitude he had expressed toward fertilizer or long distance hauling. In fact, Johnson made a hauling trip to Montana in 1967, and Forrest Cagle, confronted with Johnson's work record, admitted that Johnson made some "long hauls'' in the very period in question, making a trip of 241 miles on April 25, one of 120 miles on March 27. and another of 68 miles on March 26; and that Johnson made a trip of 160 miles on a fertilizer-hauling assignment on May 3. It does not plausibly appear why Forrest should be offering Johnson "all kinds of jobs" in a period when Good and Clinton were the dispatchers,'" and I do not believe Forrest's claim in that regard, nor his testimony that Johnson rejected "all kinds of jobs" during the period, but am persuaded, rather, that in the period in issue, Johnson rejected only the two heavy equipment jobs that he describes. The record establishes that during the relevant period, all five nonunion drivers performed tasks that were within Johnson's competence, including (but not limited to) yard work and hauling pipe, gypsum, fertilizer, cotton, and other farm commodities, and for the reasons stated, I am convinced that in making work assignments during the period. the Company departed from the seniority policy previously in effect and withheld work from Johnson on many occasions as a reprisal for his union activity and in order to discourage his interest in unionization. However, I am not prepared to state, nor is it necessary to decide at this stage of this proceeding, that work was unlawfully withheld from him on each of the 37 days claimed by the General Counsel. The two occasions on which Johnson admittedly declined to haul heavy "For the period beginning with the workweek ending March 17 and terminating with that ending on May 5, Johnson earned a total of approximately $250 as compared with approximate total earnings, during the period, of $957 by Byers; S646 by Hill, Jr, $690 by Hill, Sr, S529 by Tyler; and $1,054 by Hayes '"I do not construe a blanket affirmation by Forrest that he served as dispatcher "after the first part of April" as meaning that he functioned in that capacity prior to Clinton's relinquishment of that post toward the end of April 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment were within the relevant period, but the record does not establish the dates, nor has the General Counsel indicated whether they have been excluded from his count. Moreover, Johnson has had little experience hauling "machinery" for the Company, testifying that he thinks he hauled such equipment on only one occasion, and the Company's work records indicate that one or another of the five nonunion employees hauled "machinery" on a number of occasions during the relevant period. The evidence does not spell out the type of "machinery" involved and, conceivably, it was of a kind that in the normal course of operations would not be assigned to Johnson for hauling What is more, the General Counsel claims discrimination on a few days during the period (for example, March 24) for more alleged discriminatees, including Johnson, than the number of nonunion drivers who worked on such days. The sum of the matter is that while I am convinced that the Company withheld work from Johnson during the period because of a policy of discrimination toward him rooted in the Company's hostility toward his union activity and interest, caution dictates that the finding of discrimination against Johnson be stated in terms of an inclusive period, and that identification of the two days when he declined two assignments, and of the days when he would have been assigned work but for the policy of discrimination toward him, be reserved for the compliance stage of this proceeding I find that during the period beginning on March 13 and ending on May 2, the Company discriminatorily withheld work from Johnson because of his union activity and interest in unionization, and that by such discrimination, the Company violated Section 8(a)(1) and (3) of the Act 2. Thomas A . O'Hearon O'Hearon was employed by the Company as a driver over a period of some years, driving both "short" and "long hauls," and hauling a wide variety of commodities, including pipe, cotton, corrugated steel, machinery, heavy equipment, tanks, boxcars, fertilizer and lumber. He testified that he "usually hauled anything at any time," and in view of the length of his employment and the wide range of the commodities he hauled, I credit that testimony and find that he was competent to perform any of the trucking services performed by any of the Company's drivers. He worked with substantial consistency through the first half of' 1967; was then off the payroll for several months preceding the cotton season, returned at the start of the season during the first hall of October, and from that point worked each week, with earnings varying from 1 week to another through the workweek ending March 10, 1968 Starting on March 14, O'Hearon had no work on 8 successive days, on each of which one or more of the five nonunion drivers had work, and he had assignments for only about 5 days during the second half of March, whereas each of the non-union drivers worked substantially more during that period. He had a total of seven days of work in the first two workweeks in April, but during the next seven workweeks ending on June 2. he earned but $15.30, for one day of work during the week ending May 5 ii He had earnings in the workweeks ending June 9 and June 16, and quit in the latter week, apparently to take employment elsewhere. The General Counsel contends that the Respondent followed a policy of discrimination toward O'Hcaron starting in mid-March, soon after he began his organizational activity, and continuing for much of the time after that through the workweek ending June 2. As in Johnson's case, there is abundant support in the record for that position To begin with, O'Hearon initiated the organizational campaign among the employees, solicited their support for the Union, and secured execution of about half the authorization cards that were signed. And it should be borne in mind that Clinton, in charge of the dispatching department until about April 25, intimated to Johnson on March 19 that he had a policy of withholding work from union adherents : acknowledged during the restaurant discussion. in reply to a query by O'Hearon, that those who had "signed up" for the Union would be discharged; and upon departure from the restaurant implied that work would be withheld from union adherents with the remark. "Don't call us. We will call you." As with Johnson, moreover, the record establishes great disparity between the work volume and earnings of O'Hearon and each of' the five nonunion drivers during the period of alleged discrimination. Starting with the workweek ending March 17 and terminating with that ending June 2, a period of some 12 weeks, O'Hearon earned a total of only approximately $280 (nothing at all in about half the weeks), whereas each of the five nonunion drivers worked in each of the 12 weeks and earned at least three times as much during the period ranging from about $890 for Tyler to more than 51500 for Hayes 22 Neither Good or Clinton Cagle offered any explanation for the disparity but Forrest Cagle testified that O'Hearon "wouldn't show up for work," did not report " on time." and was "very rough on equipment"; and that "customers" objected to him. The explanation does not weather examination. There is no dispute, and O'Hearon in effect concedes, that he did not regularly appear for work at the Company's premises, nor telephone for it, during the period in question, but it is quite another matter to say, as does Forrest Cagle in effect, that that was a reason for his relatively small work volume during the period. For one thing, O'Hearon gave undisputed testimony to the effect that prior to the period, when the Company had an assignment for him and he was not on its premises to receive it. the management customarily notified him by telephone at his home to report for it 1 have no doubt that such was the practice, but more to the point, the evidence establishes that after the organizational campaign began, the Company had what amounted to a standing rule that drivers were not to come to the premises or call in quest of work. Prior to the start of union activity, it was customary for drivers to sit about waiting for assignment in the "drivers' room," but after discussion of unionization began among the men, Forrest Cagle told the drivers not to use the room or stay on the premises when there was no work for them to do. (According to him, he issued the directive because the "The transcript quotes the General Counsel as asking Forrest Cagle what O'Hearon was doing on "April 20," and Cagle as replying, "Hauling forms and lumber ', but the date is mistaken, and should be another, perhaps April 12 O'Hearon' s timecard for April 20 reflects no work, and the relevant payroll records (G C Exh. 4) show no earnings by him for the workweek ending April 21 In any case, the end results here are the same whether O' Hearon worked t or 2 days during the 7-week period "The exact figures may be ascertained from the payroll records in evidence NEW TRUCK TRANSPORT, INC. 551 drivers "were agitating each other about union matters.") Clinton, in fact, as previously described, told the drivers, including O'Hearon, at the tail of the restaurant discussion not to call the Company for work. And about April 15, shortly after the election, Forrest Cagle's brother, Ray, who is president of the Company, told a group of drivers O'Hearon was not present) that they would be called if needed, and that they were otherwise not to come to the premises . All these admonitions, it should be remembered, preceded the period of 7 weeks during which O'Hearon had only about 1 day's work. In the light of the practice of notifying O'Hearon by telephone when he was needed, and of the expressed requirements after the organizational campaign began that drivers stay away from the premises unless called, one can hardly fault O'Hearon for depending on the custom and obeying the admonitions. Neither Good nor Clinton gave any evidence that O'Hearon failed to report for work when and as required, and Forrest Cagle cited no specific instance when O'Hcaron failed to "show up for work" as required, and in the absence of such evidence. Forrest's claim that O'Hearon "wouldn't show up for work at times" and was tardy for work appears to me to be a contrived self-serving generalization. I am unable to accord it any weight, and am convinced that the failure of the Company to assign work to O' Hearon on any occasion during the period under inquiry was not attributable to any omission by him to inquire for work in person or by telephone. Forrest Cagle's claim that O'Hearon was "very rough on equipment" and that "customers" objected to his assignment to their work is, in my view, of a piece with his generalization that Johnson rejected "all kinds of fobs," and that O'Hearon "wouldn't show up for work at times"; and no more reliable as a basis for findings. There is no demonstration of the respect in which O'Hearon was "very rough" on equipment, nor in what way that affected his work volume in the relevant period. The allegation that "customers" objected to O'Hearon subsequently became a claim that only one did "just about the only- customer for whom the Company hauled pipe. Cagle was vague as to when the alleged objection was registered. testifying that "it was during the time between January and the time here that he (O'Hearon) hauled pipe." The term "here" was a reference to some work records of O'Hearon which reflect some pipe hauling trips in March. As the Company hauls pipe for "just about" one customer, one may fairly infer that the March trips were made for that concern and that O'Hearon was thus assigned notwithstanding an alleged prior request by the customer not to "send this man (O'Hearon) back " Moreover, the alleged objection does not explain why O'Hearon was not given any work at all in a substantial number of weeks during which all live nonunion drivers, all his juniors in total service, had assignments that did not involve the hauling of pipe. The sum of the matter is that Forrest Cagle does not plausibly explain the disparity between O'Hearon's work volume and earnings and those of the five nonunion drivers during the relevant period. The reason. 1 am convinced, is to be found in the Company's hostility to O'Hearon's support of the Union. As previously indicated, most of the numerous days in the period in question on which he was given no work came after the restaurant discussion, and there can be no question that the Company knew as of that time. at least, that O'Hearon favored unionization and had "signed up" for the Union. But, in addition, although there is no direct evidence of knowledge by the Company of any union activity or interest by O'Hearon prior to March 14, such knowledge may be inferred from surrounding circumstances." O'Hearon was the spearhead of organizational activity among the drivers, starting his organizational activity about the beginning of March. The Company is a relatively small concern, with a small force of drivers. Forrest Cagle was quite sensitive to discussions of unionization among the drivers, as is evident from his reason for expelling them from the drivers' room, and, with his sensitivity. I think it likely that he would have become aware during the first half of March, when much of the activity went on, that O'Hearon was an active supporter of the Union. Moreover, O'Hearon, much like Johnson, had no work for eight successive days beginning in mid-March, soon after the filing of the representation petition, and the Respondent does not plausibly account for the fact that work was withheld from O'Hearon who was competent to perform it, and, in disregard of its seniority policy, was given to employees who were junior to him in service and deemed by the management to be opposed to the Union. In short, I am convinced that the Company knew or believed as of March 14 that O'Hearon was a supporter of the Union." On the basis of what has been said, it is clear that during the period beginning March 14 and ending on June 2, the Respondent discriminatorily withheld work from O'Hearon because it regarded him as a supporter of the Union. Although he was competent to handle any of the work assigned to any of the non-union drivers during that period, I deem it unnecessary, at this stage of the proceeding, to specify the dates upon which the work was thus withheld That is a matter for the compliance stage when, on the basis of the seniority policy in effect prior to the organizational campaign and of O'Hearon's competency as found herein, a determination can be made of the particular dates when he would have been assigned work but for the policy of discrimination against him. I find, in sum, that by discriminatorily withholding work Irom O'Hearon during the period beginning March 14 and ending June 2, the Company violated Section 8(a)(l) and (3) of the Act. 3 William O. Shuff Shuff entered the Company's employ as a driver in March 1967, and, except when he was off duty or on limited duty as a result of industrial injury, was competent to perform whatever hauling work the Company had. He was a supporter of the Union, executing an authorization card on March 6. the day before the representation petition was filed, solicited other employees to support the Union; was among the employees who had been to the union meeting on the night of the restaurant discussion; was present during the conversation, and when Clinton Cagle told the group upon his departure. "Don't call us. We will call you". and voted in the election. Shuff sustained an industrial accident in January, and was incapacitated for work until about May 14, drawing workmen's compensation during the period. On or about May 14. his doctor gave him a medical "release" permitting him to do "light work," and he presented it to "N L R B v Link-Belt Co. 3 11 U S. 584, 602, N L R B v Abbott Worsted Mills . 127 F 2d 438, 440 (C A. I) As is evident, I do not base the finding of knowledge or belief as of March 14 only on the fact that the Company is a relatively small entt.rprisc Its size, however, is a factor that may properly be taken into account Cf N L.R B v Radcliife, 211 1-.2d 309, 312, in 2 (C A 9), cert denied 348 U S 833 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forrest Cagle, who told him that the Company had no such work. About a week later, on May 21, Shuff returned with a medical statement from his doctor certifying to his capacity for "full duty"; gave the document to a dispatcher named Donald Brechler who had recently been hired as a replacement for Clinton Cagle; and requested work. Brechler gave him none, although Shuff waited for about an hour. Shuff reported for work for several days thereafter, but was given no work. He then discontinued reporting for assignment until after he received a letter from the Company dated September 10, sent to him about a week after the Company had been served with a charge filed by him and Rivera, alleging unlawful discrimination against them. The letter, written by Forrest Cagle, told Shuff "to report for work on or before 9/16/68 to do the same type of work you were doing in early 1968." Shuff received the letter a day or two later, reported for work thereafter in accordance with the terms of the letter, and was employed by the Company for some unspecified period until his employment ended in circumstances not disclosed in the record, and not material to the issues here. Although the Company had Shuff's address and telephone number, it neither gave him any work nor offered him any between the May date when he reported for "light work" and the September date when he reported in compliance with the letter, and the basic issue regarding him is whether a discriminatory motive underlay the omission. Forrest Cagle offers the explanation that until the hearing he understood that Shuff was medically eligible only for "limited duty," but for this we have only Forrest Cagle's word, as on other material matters where his word is not enough for the reasons stated. The claim is not entitled to credence if for no other reason than that Forrest's letter of September 10, written some 5 months before the hearing, notified Shuff to report for "the same type of work you were doing in early 1968" or, in other words, for the full duty status he had before his injury. The very tenor of the letter indicates that Forrest Cagle knew long before the hearing that Shuff was medically eligible for full duty. Nor will an unsubstantiated claim by Forrest that he "was dispatching" on May 21 suffice. Perhaps he was doing that work on that date (although that would mean that the Company had three dispatchers instead of the two while Clinton served in that capacity), but that does not explain why neither Good nor Brechler gave Shuff any assignment on May 21 and for almost 4 months thereafter- a periodduring which all five nonunion drivers, all junior to Shuff in job tenure, had substantial earnings." Good, although a witness, gave no explanation of the failure to assign Shuff during the relevant period, and Brechler was not called, nor has the Respondent explained its failure to do so. I have no doubt that the Company knew or believed at least as of the time of the restaurant discussion involving Clinton Cagle late in March or early in April that Shuff was a supporter of the Union, and am convinced that he was not given work during the relevant period as a result of a policy of discrimination against at least some union adherents, evidenced Clinton's threats and the discriminatory failure to give O'Hearon and Johnson work, as previously described. "Payroll records in evidence for the five nonunion drivers do not go beyond the week ending June 16 The record does not establish whether there was any "light work" available for Shuff during the week between the two medical certificates, but, as I find, the discriminatory policy toward Shuff was in effect when he gave the first certificate to Forrest Cagle, and the question of whether work Shuff could perform was available during the week between the two certificates is a matter for determination during the compliance stage of this proceeding, as is the identification of the subsequent days when, but for the policy of discrimination against him, Shuff would have been given work on the basis of the seniority policy previously described, and of his capability, as found above. I find that during the period beginning with his submission, in May, of the medical statement that he was fit for "light work" and the date of his return to work in September, the Company discriminated against Shuff by withholding work from him because it believed or knew him to be a supporter of the Union; and that it thereby violated Section 8(a)(1) and (3) of the Act. 4. Henry M. Chayrez Chayrez entered the Company's employ in 1966 or earlier; had an industrial accident at some point in 1967, for which he drew workmen's compensation; and was not medically fit for duty until about the third week in January when he returned to work under a medical restriction that he perform "light duty" and lift no "heavy" objects. He was assigned to "light duty" such as "helping straighten out . pipe in the yard," At some point in February, he asked Clinton Cagle to assign him to "local" driving. Clinton said that he would "work out something". and did so. Starting in the first full workweek in February, Chayrez worked in each week until some point in the workweek ending on March 17, in the main performing yard tasks and making local deliveries. The tasks assigned were within his physical capacity, so far as appears, except on one occasion late in February or early in March when he drove to another community about 95 miles from Phoenix, and found upon his arrival that the assignment involved some lifting work beyond his medical limitation. Upon his return, he told Clinton, in substance, that he could not do such work because of the limitation. Chayrez signed an authorization card for the Union on March 2; was individually interrogated by Forrest Cagle prior to the election, in common with others similarly questioned, as to the reason he desired unionization; had attended the union meeting preceding the restaurant discussion with Clinton Cagle; was present during the discussion; was among those, on that occasion, to whom Clinton made the parting statement: "Don't call us. We will call you"; and voted in the election. Chayrez earned $91.64 in the workweek ending March 17, but that was for work performed prior to March 13 that week, as may be inferred from his timecards for March beginning with the 13th. Clinton Cagle told him in mid-March that "there was no more work" for him, and Chayrez was given none for a period of some six months beginning March 13, except for four hours during the first half of April, for which he was paid a total of $10. During the early part of the period, he made inquiries of the Company for work, doing so twice a day over a period of 1 or 2 weeks, and also waited about for work in the "drivers' room" as late as mid-April (to an extent not elaborated in the record), but was given only the 4 hours of work previously mentioned. He was one of a group of drivers told by Clinton and Ray Cagle shortly after the NEW TRUCK TRANSPORT, INC. election not to come to the premises to seek work, and that they would be called at home if needed. Chayrez, obviously, was not physically qualified to perform all tasks required by the Company's trucking services, but it is quite another matter to say that the paucity of work for him for a period of some six months was solely due to his physical condition and a decline in business with the end of the cotton season. In fact, his return to work following his injury came toward the end of the season, but he nevertheless had substantial earnings for some weeks between the end of the season and March 13. And it is incredible that the Respondent would not have considerably more than 4 hours of work within Chayrez' physical capacity during a 6-month period beginning on March 13. There is not much information in the record as to the volume and nature of "local" delivery work the Company had during the period, but from what there is, one may infer that the volume was substantial (see R. Exhs. 1-3) and, what is more, during that period a number of the nonunion drivers, all junior in service to Chayrez, were given tasks in the Company's truck maintenance shop and in the yard. It is a striking fact that the cessation of work for Chayrez, O'Hearon, and Johnson for a substantial number of days began about a week after the filing of the representation petition, which had been preceded by organizational activity for about a week; that the excuses offered for O'Hearon and Johnson do not weather examination; and that none is given for Chayrez, except a vague generalization by Forrest Cagle that Chayrez was unable "to unload" a certain "type" of fertilizer This purported explanation contributes nothing of substance to a resolution of the material issue, which is not whether Chayrez was physically able to perform every task for which the Company needed a driver's services, but whether work he could perform was discriminatorily withheld from him for an unlawful reason. On that score, the poverty of the proffered excuse becomes especially manifest in the light of the fact that the elder Hill, who was substantially junior in service to Chayrez, worked in the yard or shop on a substantial number of days over a period of some two months after March 13. Details of these tasks are scant, but they included such work as "helping" in the shop, "lawn" work, and "cleaning", and especially against the background of Chayrez' yard and local delivery duties in the 6-week period preceding March 13, one may fairly conclude that at least much of the shop and yard work given to Hill and other nonunion drivers during the 6-month period following March 13 was within Chayrez' capacity. I find, in short, that during that period the Company withheld work from Chayrez that he could perform, doing so in disregard of the seniority policy in effect prior to the organizational campaign. In the absence of a credible explanation of this course, and taking into account the timing of the start of cessation of work for Chayrez and other supporters of the Union, Clinton's threats to withhold work from union adherents, and the fact that the threats were carried out for other union adherents, the record as a whole points to a policy of discrimination against Chayrez in work assignments because the Company believed or knew that he supported the Union. To be sure, there is no direct evidence of such knowledge or belief as early as March 13, but the surrounding circumstances, including the fact that the cessation of work for a substantial period began for Chayrez, O'Hearon and Johnson about the same date in mid-March, soon after the filing of the representation petition, point to a common discriminatory purpose in 553 withholding work from these three employees. Deferring until the compliance stage of this proceeding a determination of the particular dates on which Chayrez would have been given work on the basis of the seniority policy, previously described, but for the policy of discrimination against him, I find that during the period beginning on March 13 and ending with his return to work in September, following receipt of a letter from Forrest Cagle, like that sent to Shuff, the Company withheld work from Chavrez because it believed or knew that he supported the Union. and thereby violated Section 8(a)(1) and (3) of the Act. 5. Claudino Rivera Rivera was hired by the Company as a driver in October 1967, and during his employment has operated both diesel and gasoline-fuelled trucks, hauling almost every type of product transported by the Company in the course of its business. He signed an application for membership in the Union on March 6; has attended union meetings, including the one on the evening of the restaurant discussion, was among those to whom Clinton that evening addressed the remark: "Don't call us. We will call you"; and voted in the election. About 2 days after the election, Clinton and Ray Cagle told Rivera in the "drivers' room." in substance, much as they told Chayrez and others, that drivers were no longer to come to the premises unless notified, and that they would be called if needed Clinton asked Rivera if he had a telephone, and the latter said that he did not, but that he could be reached on a neighbor's telephone, and that the Company's office had a record of the number. Rivera also wrote the number on a slip of paper and gave it to Clinton. On or about May 11, upon Rivera's return from a hauling trip of several hours to another Arizona community, Brechler asked Rivera in the "drivers' room" why he had not telephoned him while on the trip (apparently to inquire whether he was needed for a return load), and Rivera replied that he had not done so because he did not believe that there was a load for him to haul before his return. Forrest Cagle entered at about this point and it was then, as previously described, that Cagle asked Rivera to tell him who had been at a union meeting the night before; and following Rivera's denial that he had attended or knew who had, stated that if he learned that Rivera had lied about the meeting he would discharge Rivera. Rivera earned about $76 in the workweek ending May 12, but only S13 in the next workweek. Following that week, he was given no work until he reported, on September 16, in compliance with a letter dated September 10, written by Forrest Cagle shortly after Rivera joined with Shuff in filing one of the charges involved here, and notifying Rivera to report for work on or before September 16. The General Counsel's position regarding Rivera is much the same as that concerning O'Hearon and Johnson, that is, that the Respondent adopted a policy of discrimination in work assignments against Rivera during a period beginning "on or about" March 13 because he was a union adherent. Putting aside the period following May 12 for separate discussion, there are some important differences between the situations of O'Hearon and Johnson and that of 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rivera For one thing, there is no evidence in Rivera's case, unlike that of O'Hearon and Johnson, of a cessation of work for a substantial number of days beginning in mid-March He earned some 5131 in the workweek ending March 17, and this was more than tour of the nonunion drivers earned that week. True, he had no work in 4 successive days in the week ending March 24, earning about $42 that week, but he earned approximately S68 in the week ending March 31. His wages dropped to $40 in the following week, but rose to some $205 in the week following, earning considerably more that week than any of the nonunion drivers For another matter, it is not established that Rivera has service seniority over some of the nonunion drivers (Hayes, Tyler, and Hill, Sr.), and it would thus be a guess to say that these were given preference in assignment over Rivera in disregard of the seniority policy Moreover, for the period beginning with the week ending March 17 and terminating with the week ending May 12. Rivera's total earnings of about $712 are more than one of the five nonunion drivers (Tyler), almost as much as two others (the two Hills), and not so far short of the remaining two (Hayes and Byers) as to warrant a conclusion, in all the circumstances, that the two were given preference in the period in question because of an antiunion motive.26 In short, the record will not support a finding that an unlawful discriminatory purpose underlay the ratio of Rivera's work assignments to any nonunion driver prior to May 12. But I take a different view of the period of some 4 months that followed it is a significant fact that Rivera's earnings plummeted soon after Forrest Cagle, on or about May 11, asked him to identify those who had attended a union meeting, and upon Rivera's disclaimer of knowledge, threatened him with discharge if it turned out that he had lied about the meeting . The Respondent gives no explanation for the fact that Rivera earned but $13 in the week ending May 19, and nothing for almost four months thereafter. Obviously, the fact that the cotton season had ended in or about mid-February will not serve as an explanation, for Rivera' s earnings for some months after the season's end were substantial. The Respondent presented no evidence that it ever called Rivera to report for work during the period in question, and bearing in mind the instruction to Rivera not to report for work unless called, the Respondent surely has no standing to claim that he was not assigned during that period because he did not come to the premises or telephone in search of work. It does not appear by what means Rivera was notified to report for the relatively little work he had in the week ending May 19. but, at least for the period that followed until the letter of September 10, I am convinced, and find, that the Respondent did not call or otherwise tell him to report to work The Respondent offered no evidence that during the relevant period it had no work available for Rivera on the basis of operation of its seniority system, and in the absence of any explanation of the paucity of work assignments for Rivera that followed hard upon Forrest Cagle's threat, I am persuaded, and find, that the Company withheld work from Rivera during a period beginning in the week ending May 19 and terminating with Rivera's resumption of work in mid-September because Forrest Cagle believed that Rivera was an adherent of the Union and had the information regarding "During the relevant period , the five nonunion drivers respectively earned the following approximate total sums Tyler $603, Hill, Jr $744, Hayes $1213, Byers $ 1070, and Hill, Sr $804 a union meeting requested by Cagle; and wished to punish him for withholding the information, and for his support of the Union.27 Deferring until the compliance stage of this proceeding a determination of the work assignments Rivera would have had on the basis of the seniority system and his capability, but for the discrimination against him, I find that by withholding work from Rivera during the period starting with the week ending May 19 and his resumption of work on September 16, the Company violated Section 8(a)(1) and (3) of the Act. 6. Robert Bean Bean entered the Company's employ as a driver prior to 1967 and, as evidenced by the Company's payroll records, worked each week that -year, and except for the week ending April 21, worked each week in 1968 until he quit durmg the week ending April 28.29 He did not testify (the General Counsel stated that he was unvailable), and evidence hearing on his union activity and attitude toward unionization is scant. There is no indication that he signed an authorization card, but he was in the group on the sidewalk in front of the Union's headquarters on the night of the restaurant discussion, and, as I infer from the sequence of events that night, had been at the union meeting that preceded the discussion He was in the group to whom Clinton addressed the remark: "Don't call us. We will call you." The General Counsel's position regarding Bean, as expressed at the hearing and reflected in amendments of the complaint made there, is that work was discriminatorily withheld from Bean on 14 consecutive days beginning with March 15 and ending with March 28.29 A major difficulty with the General Counsel's thesis is that so far from proving that work was withheld from Bean on the 14 days, the record establishes that he worked on almost ally of them, and, what is more, for the workweek ending March 24, he earned $281.82 (G.C. Exh. 3). a substantially larger sum than that any of the nonunion drivers earned that week The General Counsel's claim connotes a misconception of the evidence in the light of a stipulation of counsel providing, in substance, that the General Counsel would read into the record work and attendance information pertaining to Bean taken from the Respondent's records, and that in the absence of comment by the Respondent's counsel, the information would constitute evidence in lieu of the records themselves 30 "I note, in passing , that the fact that the record does not support a finding of unlawful discrimination against Rivera prior to mud-May, although the Company very likely knew or believed that Rivera had prounion sympathies prior to the election, does not militate against the finding of discrimination against O 'llearon and Johnson during a period beginning in mid-March The Respondent knows best why it assigned work to Rivera while withholding it from O' Hearon and Johnson in a period starting in mid-March , but has not given a candid explanation of its course "Bean returned to the Company' s employ in September No aspect of that employment is m issue here "As amended at one point dung the hearing, the complaint's allegations of specified dates of discrimination against Bean did not include March 18 and 19, but a later motion to amend the complaint to conform to the evidence had the eflect of including these two dates in the complaint as amended A claim of discrimination on the two dates is also reflected in the General Counsel's brief "The stipulation is embodied in the following colloqy Mr. Slall (for the General Counsel)- May we assume, unless there is a NEW TRUCK TRANSPORT, INC. In the course of the reading procedure, the General Counsel stated. "There are no payroll record cards, and apparently no work, for Bean for March 15, 16, 17, 18, 19. 20. 21, 22, 23, 24" (emphasis supplied). This was followed by information taken from the records to the effect that Bean worked on March 25, earning 527.50; March 26, earning $15: and March 27, earning $56.88. and that he had no work on March 28. The assertion that there was "apparently no work" for Bean on 10 days beginning with March 15 will not do as evidence that he had no work on those days, for, plainly, the stipulation did not extend to a concurrence by the Respondent in the General Counsel's conclusion as to the "apparent" meaning of the lack of cards for the 10 days. Indeed, 1-orrest Cagle testified, without dispute, that the absence of a card for a given date for a driver does not necessarily mean that he did no work that day, for on long trips, such as one taking eight days, for example, the time will be reflected on one card. To cap the matter, there is hard evidence that Bean earned over $280 for the week beginning on March 18 and ending with March 24, and it may fairly be inferred from the size of the sum that he worked substantially the entire workweek. His earnings, in fact, were so large for the week that a finding that the Company discriminated against him during the 7 day period would not only do violence to the record but border on absurdity. That view of the matter is reenforced. rather than diminished, by the evidence that Bean's earnings fir the 3 day period consisting of March 25, 26. and 27 amounted to about S100. a sum substantially more than that of any of the 5 nonunion drivers, except Byers, earned for the 3 days. What remains is a determination whether the Company discriminatorily withheld work from Bean on March 15, 16. 17, and 28. The only possible basis for a finding that he had no work on March 15, 16, and 17 is the fact that he earned the relatively small sum of S27 90 for the week ending March 17. In the state of the record, it would be something of a guess to say on which days of that week he was given no work. But assuming that he had little or no work on March 15. 16, and 17, it is a far leap from that to a conclusion that his work volume during the period was the product of unlawful discrimination. The fact of Bean's large earnings for the 10-day period immediately following the three days would of itself go far to negate such a conclusion In addition, there is no evidence that Bean was available for work on March 15, 16, 17, and 28. It does not appear that Clinton Cagle's admonition, on the night of the restaurant discussion, not to "call" the Company for work preceded these dates, and the other instructions to drivers not to come to the premises for work unless called were issued in April. In short, for all that appears, prior to these admonitions, Bean habitually reported at the premises in quest of work, and was not given any assignment on the days in question because of some indisposition or other reason that rested with him. Summarizing the matter, the record does not establish unlawful discrimination against Bean, and thus I shall recommend dismissal of so much of the complaint as alleges it " question , that if I continue in this manner (reading from the Company's timecards) that they are correct, that since Mr. Wilson (Respondent's counsel ) is examining the cards, they are correct if there is no disagreement, and that they are as stated' Mr Wilson: Silence will be assent. 555 IV. THE EFFFCTS 01' THE UNFAIR PRA('TICFS UPON LABOR COMMERCE The activities of the Respondent set forth in section 111, above, occurring in connection with the operations of the Respondent described in section 1, above, 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 V. Tilt' RIMPDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and desist from such unfair labor practices and take certain affirmative actions designed to effectuate the policies of the Act. In view of the nature and extent of the unfair labor practices committed, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order below which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by said Section 7 'Z Having found that the Company, in violation of Section 8(a)(1) and (3) of the Act, discriminatorily withheld work assignments from William 0 Shuff, Thomas A. O'Hcaron, James C. Johnson, Henry M. Chayrez, and Claudino Rivera during the periods of' discrimination respectively found for them above, I shall recommend that the Company make each such person whole for any loss of pay he suffered by reason of the said failure to give him work during the period of discrimination against him, as found above, together with interest thereon as provided below: and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F W Woolworth C'ompanv, 90 NLRB 289, together with interest on the said loss at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716, to which cases the parties to this proceeding are expressly referred.'; Conclusions of Law Upon the basis of the foregoing findings of fact, and upon the entire record m this proceeding, I make the following conclusions of law: 1. The Company is, and has been at all material times. an employer within the meaning of Section 2(2) of the Act. 2. The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily withholding work assignments from William O. Shuff, Thomas A. O'I-Iearon. James C. Johnson, Henry M. ChayreL and Claudino Rivera, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by "Unlike the General Counsel, I sec no significance in the fact that Good, in the course of his testimony, acquiesced in a suggestion put to him by the General Counsel that he (Good) "knew that Johnson, O'Hearon and Bean ran around together " "N.L R B v Entwistle Manufacturing Co. 120 F 2d 532 (C A. 4), May Department Stores v. N L R B. 326 U S 376, Bethelehem Steel Company v NLRB.. 120 F 2d 641 (C A D.C.). "There is no issue of reinstatement involved here 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act. 6. The record does not establish that the Company withheld work from, or otherwise discriminated against. Robert Bean in violation of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this proceeding, I recommend that New Truck Transport, Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership of its employees in The Transport & Local Delivery Drivers, Warehousemen & Helpers, Local Union 104, or in any other labor organization, by discharging, laying off, denying work to, or withholding work from, any employee, or in any other manner discriminating against any employee in regard to his hire, tenure of employment or condition of employment. (b) Interrogating any of its employees as to any employee's activities, membership or interest in. support of, or adherence to, any labor organization, in a manner constituting interference, restraint or coercion , in violation of Section 8(a)(1) of the Act (c) Threatening, warning, or in any manner otherwise informing, any employee that it will go out of business, or discontinue, shut down or otherwise curtail any business operation, or lease, sell or otherwise dispose of any of its equipment, or lay off, discharge or otherwise withhold work from, any employee, because any employee has engaged, or engages, in activity in, or on behalf of, any labor organization, or supports, or has supported, any such organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to sell-organization, to form, join. or assist any labor organization; to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection: or to refrain from any or all such activities. 2 Take the following affirmative actions which, I find. will effectuate the policies of the Act (a) Make William O. Shuff. Thomas A. O'Hearon, James C. Johnson. Henry M. Chayrez, and Claudino Rivera whole in the manner and according to the method set forth in section V, above, entitled "The Remedy." (b) Preserve until compliance with any order for backpay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board and its agents, upon request, for examination and copying, all payroll records, social security records, timecards. personnel records and reports, and all other records relevant to a determination of the amount of backpay due under any such order. (c) Post in conspicuous places at the Company's place of business in Phoenix , Arizona, including all places where notices to employees are customarily posted, copies of the attached notice. Copies of the said notice to be furnished by the Regional Director for Region 28 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that §aid notices are not covered, altered, or defaced by any other material." (d) Notify the said Regional Director, in writing, within 20 days from the date receipt of a copy of this Decision, what steps the Respondenthas taken to comply therewith 35 IT IS FURTHER RECOMMENDED that so much of the complaint be dismissed as alleges that the Company violated the Act by discriminating against Robert Bean In the event that this Recommended Order is adopted by the National Labor Relations 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 additional event that the Board 's order is enforced by a decree of a United States Court of Appeals , "a Decree of a 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, par 2(d) thereof shall be modified to read "Notify the said Regional Director, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply therewith " APPENDIX NOTICF 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 hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, and ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization. To form, join or assist any union; To bargain collectively through representatives of their own choice; To engage in activities together for the purpose of collective bargaining or other mutual aid or protection; To refrain from the exercise of any or all such rights WE WILL NOT threaten to lay off, discharge, or punish any employee. or to go out of business, or to lease or sell any of our trucks or other equipment, because any employee has exercised any of such rights. WE WILL NOT lay off, discharge, punish, or withhold any work from any employee, because any employee has exercised any of such rights. WE WILL NOT ask any employee any questions about the exercise of any of such rights in any manner that might interfere with such exercise. WE WILL NOT in any other manner interfere with any employees' exercise of any of such rights. The National Labor Relations Board has found that we discriminated against William O. Shuff, Thomas A. O'Hearon, James C Johnson, Henry M Chayrez, and Claudino Rivera by withholding work from them in violation of the Act, and has ordered us to reimburse them for any loss of pay they suffered because of such discrimination. NEW TRUCK TRANSPORT, INC. 557 WE WILL, therefore , reimburse each of these This notice must remain posted for 60 consecutive days employees for such loss of pay, together with interest from the date of posting and must not be altered , defaced, thereon , in accordance with the Board 's Order. or covered by any other material. NEW TRUCK TRANSPORT, If employees have any question concerning this notice INC. or compliance with its provisions they may communicate (Employer) directly with the Board's Regional Office, 7011 Federal Dated By Building & U.S. Courthouse , 500 Gold Avenue,SW., ( Representative) (Title ) Albuquerque, New Mexico , Telephone 843-2555.