R-W Service System, Inc.

R-W SERVICE SYSTEM, INC. 659 R-W Service System, Inc. and William Kusley. Case 13-CA-10291 October 8, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On May 18, 1971, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent has not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examin- er's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief to the Trial Examiner's Decision as well as a motion to remand for further proceedings, and Respondent filed a reply brief to the General Counsel's exceptions and motion to remand. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The General Counsel excepts to the Trial Examiner's refusal to admit into evidence certain tape recordings and the denial of the General Counsel's offer of proof concerning the contents of the tapes The General Counsel waited until after he had presented his case-in-chief and after the Respondent had presented its defense and its witnesses had been excused to offer the tape recordings The evidence was offered solely to corroborate the testimony of the General Counsel's principal witnesses and not in rebuttal of testimony given by witnesses for Respondent in these circumstances, we find that the Trial Examiner did not commit error and his ruling is accordingly affirmed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This case was tried before me on March 8 and 9, 1971, at Chicago, Illinois, and is based on a charge filed on December 29, 1970, as amended on January 25, 1971, by William Kusley, an individual; upon the complaint issued on January 28, 1971, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against R-W Service System, Inc., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1), (3) and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices.' At the hearing, all parties were represented by counsel, and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of hearing, timely briefs were filed by counsel for the General Counsel and for the Respondent.2 Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of the testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474-496), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, is a motor carrier and trucking concern maintaining a place of business and truck terminals at various locations in the States of Ohio, Michigan, Indiana, and Illinois, where it has engaged in the business of providing interstate transporta- tion services to various points in these States. During the calendar year 1970 the Respondent furnished interstate transportation services for which it received in excess of $100 million of which sum it received in excess of $50,000 for services which involved the movement of goods in interstate commerce directly from its Gary, Indiana, truck terminal at 4075 East 15th Place, the only facility involved in this proceeding, to locations in States of the United States other than the State of Indiana. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. li. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether, on December 8, 1970, the Respondent interrogated employee applicant William Kusley concern- i The complaint was amended at the hearing to include the 8(a)(3) allegation and to delete that portion of the 8(a)(1) allegations which asserted the maintenance of an employment application form which interrogates employee applicants concerning past concerted activities 2 Subsequent to the filing of briefs in this matter, the General Counsel filed a motion to strike certain portions of the Respondent's brief as not being supported by the record With one exception, the Respondent in its letter of March 31, 1971, has admitted as in error the portions of its brief objected to by the General Counsel, specifically all matters contained therein relating to Kusley and his alleged association with the Fraternal Association of Steel Haulers General Counsel's motion to strike portions of brief filed by counsel for Respondent is hereby granted 193 NLRB No. 100 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing his former strike activities in violation of Section 8(a)(1) of the Act. 2. Whether, on and since December 8, 1970, the Respondent refused to hire William Kusley because of his having engaged in 1967 strike activities while employed by another employer, in violation of Section 8(a)(3) of the Act. 3. Whether, in refusing to hire said William Kusley during this period , the Respondent did so because Kusley several years earlier had filed a charge against another employer and had given testimony under the Act, in violation of Section 8(a)(4) of the Act. B. Facts William Kusley, the sole alleged discriminatee in this proceeding, is a truckdriver and owner -operator of a tractor and trailer . As such , he leases his services , with or without equipment , to truck lines, either on a long-term lease, good for 1 year or more, or on a term or trip lease basis, applicable to one trip . From 1957 to 1967 Kusley operated under a long-term lease with Yellow Transit Company out of Gary, Indiana. Between 1967 and December 1970, Kusley's employment was limited to trip leasing for several companies. On December 6, 1970, Kusley noticed an ad in the Gary Post Tribune "Help Wanted" section stating "brokers wanted-freight or steel 938-9295 ." About 2.30 p.m. Kusley drove to an old friend 's house, Joe Vainer , a retired steelworker, telling him that he planned to call the telephone number in the paper and that he wanted someone to listen in as a witness . Vainer agreed, and Kusley, who had brought a small tape recorder with him, placed the recorder to the ear piece of the telephone Kusley dialed the number with Vainer listening close to the ear piece, and, when a lady answered with, "This is R-W Truck Lines," Kusley alluded to the newspaper ad and asked her "if they were still hiring trucks and drivers." She replied in the affirmative and shortly a man came on , saying "This is Bob Conway." According to Kusley's testimony , he asked Conway, terminal manager for the Respondent's Gary, Indiana, operation , if they were still hiring trucks. Conway allegedly replied "There is no problem . .. we will lease your truck and driver and myself as the driver." Conway then asked Kusley what kind of equipment he had, and was told that he owned a tandem tractor and tandem trailer. Conway, upon learning that Kusley's trailer was only 34 feet, told Kusley he could not use the trailer but that the Company had trailers he could use. According to Kusley, Conway told him that he would put him to work immediately. Kusley said that would be fine, that he would come down to the terminal and talk with him. Vainer corroborated Kusley's version of this telephone conversation only as to the preliminaries and the fact that Conway indicated that the Company was hiring men and equipment. The remainder of Kusley's testimony as to Conway putting him to work and "there being no problem" was not mentioned by Vainer in his testimony. Conway testified that he told Kusley to come over, but denied telling him he was hired . I credit Conway's denial of Kusley's uncorroborated testimony in this regard , and find that no such commitment was made by Conway during this telephone conversation.3 Kusley, accompanied by Vainer and armed with his tape recorder, drove over to the Respondent's Gary terminal at East 15th Avenue , arriving about 2:45 p .m. Kusley placed the recorder under his coat, the microphone in his pocket, turned it on, and walked into the office . While walking in, Kusley told Vainer that if there were any question raised as to why he was with him, they would say that he (Vainer) was going to finance Kusley's purchase of a 40-foot trailer. Kusley asked for Conway. The latter introduced himself and, without stating his name, Kusley alluded to their recent telephone conversation . Kusley then said, "Well, I am here. I want to go to work . I want to lease my tractor and I want to go to work for you people pulling your trailer." Conway allegedly replied that that was fine, that there was no problem, that he would put him to work immediately, that they had a lot of company trailers, and that R-W Truck Lines operated in Indiana, Michigan, Ohio, and Illinois. At that point, Conway received a telephone call, overheard by Kusley and Vainer. Based on Conway's part of the conversation , Conway indicated that he was hiring trucks and learned that the following day somebody would be bringing Indiana stickers and "the necessary papers and permits." After the telephone conversation , Kusley asked Conway what percentage the Company paid , and was told that R-W paid 75 percent if Kusley used his tractor and trailer and if Kusley pulled the company trailer it would be 62 percent. Kusley testified that Conway said "there was no problem so far as putting me to work . . . that I could go to work tomorrow, they had a lot of trailers. We will hire you. No problem." Kusley then asked about "these permits, if he had any paper work on it." Conway replied that he did. Conway said that the Company paid the Indiana stickers, the Michigan Public Service Commission stickers, and all the toll fees, that R-W would take 50 percent of the cost of the permits out of his pay and that if he were to remain with the Company for I year he would be reimbursed the 50 percent. Kusley said that that was fine, and Conway replied that R-W would pay the $50 fee for the Michigan Public Service sticker. According to Kusley, Conway again mentioned that he had a lot of trailers and that Kusley could go to work, that "there is no problem." Conway said that he would call a man in Detroit and see when he was coming down . Conway proceeded to dial a number, during which time, in reply to Vajner's question , Conway identified himself as the terminal manager, and allegedly asserted that "he did the hiring and everything." When the telephone connection was made, Conway said into the telephone, "I have got the man right here , he wants to pull the R-W 3 trailer." Conway, on the telephone, said that the trailer was in Chicago and also stated that there were two other men coming in the next day to pull company trailers. This concluded the telephone conversa- 3 Apart from other factors concerning Kusley's credibility, hereinafter other things, is, in my opinion , totally unrealistic and defies all aspects of noted, that a terminal manager would agree on the telephone to employ a sound business sense person for this type of work without even inquiring as to his name, among R-W SERVICE SYSTEM, INC. 661 tion, and Conway allegedly told Kusley to come in the following morning around 10 or 10:30 a.m., "there is no problem, you can go to work tomorrow Bring your tractor down. You are working." Conway told Kusley that he would send him to Chicago with his own tractor to pick up the R-W 3 trailer. With that Kusley and Vainer left. Vainer corroborated Kusley's testimony as to this conversation, almost word for word as a matter of fact. Vainer added that Conway said that he had some stickers and the permits coming in from Michigan the following morning, and also, alluding to Kusley's picking up the R-W 3 trailer in Chicago, that when Kusley got to Michigan "he could take his physical from there." Vajner's testimony did not include Kusley's assertion that Conway stated during the conversation that he did the hiring. With respect to this conversation at the terminal, Conway testified that he talked briefly with Kusley concerning arrangements made with drivers as to percentage, payment of permits and licenses, and the Michigan Public Service charge, but told him to come back the following morning to process an application. Conway admitted telling Kusley that the Company had a R-W 3 trailer in Chicago at the time, but denied telling Kusley that he could go after it, and denied at any time telling Kusley that he was hired Notwithstanding an attempted corroboration of Kusley's version of the incident by his close friend, Vainer, based on my appraisal of Kusley and Vainer while testifying, including the fact that they both admitted agreeing beforehand to lie to Conway if the occasion required it, I dust do not believe their testimony as to the crucial aspects of this conversation with Conway. Again, it is inconceiva- ble to me that the terminal manager, whose absolute authority as to hiring without clearance appears to be in doubt, would commit the Company to hiring a man on the spot without first knowing his name, securing an applica- tion form, or having any information on him, as testified to by Kusley and Vajner. I find that Conway's discussion with Kusley on this occasion was confined to matters relating to company employment of truckers generally. The following morning, December 8, with his tape recorder but without Vainer, Kusley reported to the R-W terminal and asked for Bob Conway. Conway took Kusley to Dallas Hall, Respondent's safety supervisor, and told him to talk with Hall The two then walked over to a small office, where, for the first time, Kusley made known his identity and introduced himself as William Kusley from Hobart. With Kusley's concealed recorder turned on, Hall asked Kusley if he had filled out an employee application. Upon ascertaining from Kusley that he had not, Hall gave him one and requested that he go to the drivers room and fill it out. According to Kusley, while he was in the process of filling it out, Hall appeared in the doorway. Kusley asked him if he still wanted him to go to Chicago to pick up the trailer "or what do you want me to do'" Hall replied that he did not know what Conway wanted to do with him. Upon finishing his application, Kusley took it back to Hallo and sat down. In looking over the application and in obvious reference to question number 14,5 Hall asked Kusley, "How active were you in the strike in 1967?" Kusley testified that he had no alternative but to tell Hall that he "was very active in the strike," detailing the fact that "I tried to help the truckers. The companies were unhappy about it. The Teamsters were unhappy about it. As a result of it I was fired or terminated in 1968 dust after the strike and I filed unfair labor charges against Yellow Transit." Hall, at some point, told Kusley he wanted to look over the application, suggesting that Kusley leave the drivers room. After waiting some 10 or 15 minutes, Hall came out and told Kusley that he wanted to go outside and inspect Kusley's tractor. According to Kusley, Hall walked around the tractor, but did not inspect it. Hall told Kusley that until he had a Public Service Sticker he could not let him run on the road. Hall said that he would look over Kusley's application, would check his driving and his employment record, and would call him in several days. As to this interview, Hall, who, as safety supervisor for all of Respondent's operations assists in hiring of equipment, testified that, pursuant to his telephone conversation with Conway on December 7 concerning several employee applicants, he arrived in Gary on December 8 and talked with them. Hall, in reviewing Kusley's application with him, and noticing the discharge from previous employment and Kusley's answer "active in strike," admitted that he asked him about it. Hall, although not recalling, did not deny asking him how active he was in the strike, but did deny asking Kusley whether Yellow Transit was pretty mad about the strike or asking Kusley about what happened to his unfair labor practice situation. Hall asked additional questions relative to his application, one concerning his not having had a permanent employer for 3 years, to which Kusley replied that he had been trip leasing for 3 years. Hall credibly denied that Kusley mentioned anything to him about there being a R-W 3 trailer in Chicago. Hall was not asked and did not testify concerning inspecting Kusley's trailer on this occasion or telling Kusley he could not drive until he had a Public Service sticker .6 Hall, after talking with Kusley and the other two applicants, called Richard Coppens in Detroit. Hall told Coppens, who is Respondent's manager of driver personnel and equipment, that he had three applicants, that two were normal in his opinion, but that the third was doubtful as the applicant had 3 years of trip leasing. Coppens told him definitely to hold off on the third, and to bring the application back to him in Detroit. According to Kusley, a week later, on December 15, with his buddy, Vajner, again listening in on an extension telephone and with his tape recorder in working order, Kusley telephoned the R-W Truck Lines. When a person answered, identifying herself as Carol, Kusley identified himself as Kusley, telling her he was supposed to go to work for them and asking her whether they had received the Indiana Public Service Stickers yet. Complying with her 4 The transcript initially indicates that Kusley gave it to Conway, but it discharged from any employment, Kusley had answered in the affirmative, is clear from the remainder of the transcript that he meant Hall As a setting forth in the space reserved for an explanation, "Steelhaulers matter of fact, but for the initial contact, Conway was to have no strike-active in strike" conversation with Kusley on this date 6 I credit Hall as to this incident I also find that Hall's inquiry was S In reply to question 14 as to whether the applicant had ever been limited to the one question concerning how active Kusley was in the strike 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion that he hold the phone, a minute or so later she came back on, stating to Kusley that they had not received the stickers, and suggesting that he call back in a couple of days.? Subsequently, on December 21, again taping the conversation, Kusley called R-W Truck Lines, this time with Conway answering. Kusley asked Conway if he had the Public Service Stickers, telling him that he had a family to support and that he wanted to go to work. Conway said that he had not received them yet. According to Kusley, Conway then volunteered the fact that he had just hired a man who is driving without an Indiana Public Service Sticker with the understanding that the man would pay the fine (presumably if caught). Kusley said, "Well, it is illegal but . . . I have got to support a family. . .," and suggested that he go to work with the same understanding. Conway assertedly replied that he did not know, he would have to talk to Detroit about it, suggesting that Kusley call back about 2 p.m. At the designated time, tape recorder and all, Kusley called again, getting hold of Conway, and asking him "Have you got-what did you find out about the Public Service Stickers?" Conway answered, "We are not going to employ you." In reply to Kusley's query, Conway told him that Mr. Coppens out of Detroit had looked over his application and that "they kicked it back and that was it." Conway confirmed Kusley's testimony concerning his telephone inquiry on December 21, but testified that Kusley asked if he had heard anything back on iris application. According to Conway, he then called Coppens in Detroit who told him that the Company could not hire Kusley because of his trip leasing activities. When Kusley called again, Conway told him that he had talked with Coppens and that the Company had rejected him. Kusley did not ask for and Conway did not volunteer Coppens' reason for rejection.8 Analysis and Conclusions The General Counsel contends that Kusley applied for employment, was told that he could have employment, and, upon finding out about his 1967 strike activities and his having filed unfair labor practices against a former employer, the Respondent refused his employment. The Respondent asserts that Kusley was never promised employment and that he was denied employment solely on the ground that for the 3 prior years he had had no regular employment and had been engaged only in sporadic trip lease arrangements. The strike activities of Kusley and his unfair labor practice charges upon which the General Counsel relies are detailed by Trial Examiner John Gregg in his decision adopted by the Board in Yellow Transit Freight Lines et al, 175 NLRB 672, 673-674. Specifically, the General Counsel requested that judicial notice be taken of certain para- 7 Vainer corroborated Kusley's testimony generally as to this conversation except that Vainer testified that Carol said that she would call Kusley back in a day or two 8 Conway testified that he did not believe he told Kusley that they had put on a man without a sticker with the understanding that he would pay his own fines if caught Conway was not questioned concerning Kusley's graphs contained therein. The following is taken directly from that portion of Judge Gregg's decision: William Kusley was in the employ of the Respondent since approximately 1959. He hauled out of the Respondent's Gary, Indiana terminal to Michigan, deadheading back to Gary, Indiana his home base, hauling steel, steel coils, sheets and steel bars. Kusley operated a four-axle tractor and seven-axle tractor called Michigan trains, hauling exclusively for Yellow Transit Freight Lines, the Respondent. The record is replete with credible testimony indicating that Kusley was a key figure in the concerted activities of the owner- operators, attending several meetings during the year 1966 with owner-operators of the Respondent in Toledo, Ohio, Detroit, Gary, Indiana, and Chicago. Kusley testified that the meeting in Chicago was attended by representatives from all the local unions, presidents, and business agents and that the purpose of these meetings was to better working conditions... . The record indicates that Kusley was discharged by the Respondent on December 9, 1966, and that he subsequently filed a charge with the Board in Case 13-CA-7686. His reinstatement with the Respondent was effected through the grievance procedure and a Settlement Agreement was executed by the parties and approved by the Board. Kusley testified additionally to a meeting in 1967 with Respondent company officials, including Mr. Dale Merriman and Mr. Whitchurch, where Kusley was the spokesman for the drivers and the discussion centered on minimum loads, better terminal facilities, better hotels, relief from the steel addendum, and payment of the Company of the highway use tax. According to Kusley, during the summer of 1967, the owner-operator drivers picketed Local Union 142 over the matter of the alleged failure of Local 142 to cooperate with them. Kusley testified that he tried on many occasions to contact the Union but could get no cooperation, so in August 1967, he organized a strike. According to Kusley, he and Jim Levitt put out posters calling for a general strike, which started at Gary, Indiana and extended directly to an 8 state area, and indirectly perhaps a 20 state area involving possibly 20,000 men. There is no question on this record but that Kusley was a key figure and active in concerted activity for the purpose of collective bargaining or other mutual aid or protection. While, on the instant record, Kusley "assumed" that he was well known to everybody in the trucking business because of his involvement in the 1967 industrywide strike which resulted in an agreement to which R-W Service System was one of some 600 signatories, there is no direct evidence that any of the Respondent's officials ever heard of him prior to receiving his application. That his "reputation" of 3 years earlier had followed him to the Respondent's operations on December 8 is questionable. It request that he be permitted to assume such responsibility . While "stickers" may have been discussed during this conversation, I find that the real concern on this occasion was Kusley's employment application, and that the facts of the matter are more accurately reflected in the testimony of Conway R-W SERVICE SYSTEM, INC 663 is on this date, December 8, as I understand General Counsel's primary position, that the Respondent, after indicating to Kusley that he had a job, suddenly decided not to hire him Kusley never introduced himself to Conway so the latter would not have known his name. Hall had been in Viet Nam during the period of Kusley's 1967 activities, and therefore, it is doubtful that Hall would have known of Kusley's reputation, if such he had. When Hall telephoned Conway in Detroit on this date concerning the threejob applicants, no names were mentioned. According- ly, Coppens, in directing that the application with the 3- year employment gap be held and brought to Detroit, was not aware of whose application he was holding up. Therefore, on December 8, when the Respondent allegedly became unlawfully motivated against Kusley, such motivation would have to have been derived from Kusley's interview reply to Hall rather than from his general reputation Apart from the legal issue raised by Hall's sole question of Kusley on this occasion, the information supplied by Kusley is in no way commensurate with the detailed personal involvement upon which Kusley asserts his general reputation. Thus, his answer to Hall was that he "was very active in the strike," and that "I tried to help the truckers. The Companies were unhappy about it. The Teamsters were unhappy about it. As a result of it I was fired or terminated in 1968 just after the strike and I filed unfair labor charges against Yellow Transit." Kusley's answer to Hall not only does not reveal the extent of his participation or leadership in the strike, but, except for the charges, such information conceivably could have been supplied by any one of the 20,000 participants in the 1967 industry strike While this knowledge, particularly that relating to the filing of charges, undoubtedly could have an adverse effect upon the employment decision of an employer with a history of union antagonism, such is not the case here. The record herein is void of evidence revealing antiunion animus on the part of the Respondent. The only incident from which even a slight inference might be drawn is that concerning Hall's interview question of Kusley However, to properly assess motivation in this regard requires that the question be appraised in context. In reviewing Kusley's application and raising a question here and there concern- ing an answer supplied by the applicant, Hall came across Kusley's explanation for a prior discharge from employ- ment, said explanation being "Steelhaulers strike-active in strike." Hall posed his question in the language of Kusley's answer, "How active were you in the strike in 1967?" Hall did not follow this up with any other question but appears to have gone on with the remainder of the application It would appear to me that, seeing this written answer, this, under the circumstances, could have been a natural thing to do-and to do it without either realizing the import of the question or truly seeking a definitive reply. Certainly, without a scintilla of additional evidence of union animus on the part of Hall, or anyone else in the Respondent's organization, an unlawful inference as to this one question under these circumstances is not warranted. The decision to not hire Kusley was made by Coppens in accord with company policy to not employ applicants whose immediate employment is limited to trip leasing. The record reveals that Respondent's policy concerning the employment of new drivers is, and has been for many years, governed by Department of Transportation regulations and insurance company standards. While in most cases it is apparent on the face of the application that an applicant is well qualified, permitting the Company to hire the man with a reference check to follow, other applications raised questions requiring a check before hiring the applicant. In some 10 percent of the cases it is apparent from the face of the application that the applicant is substandard. Under the Company's policy of maintaining high standards for its applicant drivers, apart from an applicant's driving record, the Company looks to his recent employment experience. Trip leasors, such as Kusley had been for the past 3 years, are looked upon as risks, whose employment records are difficult, if not impossible at times, to check. Accordingly, the Respondent has adhered to its policy of not hiring driver applicants whose most immediate employment has been of this nature. Such was the case of Kusley. Notwithstanding efforts by the General Counsel to show to the contrary, the record supports the Respondent's position that the Company had not deviated from such a policy, that the Company had at no time apparent hired a driver whose immediate employment over any period of time was limited to trip leasing. Although Coppens, because admittedly the Respondent needed drivers, sought advice from Joseph Farhat, Respondent's Director of Personnel and Safety, as to the possibility of making an exception in the case of Kusley, in view of the 3-year period involved it was decided that they could not deviate from company policy. Accordingly, I find that, in refusing Kusley's employment application, the Respondent was following established company policy. This, coupled with a lack of proof that the Respondent was discriminatorily motivated in adhering to such policy, compels a finding, which I make, that the General Counsel has failed to prove by a preponderance of the credible evidence that the Respondent unlawfully refused employment to Kusley in violation of Section 8(a)(3) and (4) of the Act. While Hall's question to Kusley on December 8 during his review of Kusley's application as to "How active were you in the strike in 1967?" would, under most circum- stances, constitute unlawful interrogation violative of Section 8(a)(1) of the Act, I find that in context here it would constitute nothing more than a de minimis violation. Accordingly, I find it unnecessary to determine whether such question was in contravention of the Act.9 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: 9 Carpet Man, inc, 170 NLRB No 45, fn I 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, R-W Service System, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint, herein, be dismissed in its entirety.