Sam Tanksley Trucking, Inc.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Tanksley Trucking, Inc. and District No. 9, International Association of Machinists and Aeros- pace Workers, AFL-CIO, and Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 574, Jointly. Case 14-CA-6324 July 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 7, 1972, Trial Examiner Henry L. Jalette issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as modified herein. We do not adopt the Trial Examiner's 8(a)(1) findings of threats to and interrogation of Looney based on Looney's pretrial affidavit. Looney could not remember anything about the facts set forth in his affidavit after reading it at the hearing. Nor could he recall on the witness stand in detail what had occurred at his home the evening before he testified. Because of Looney's thus demonstrated unreliability as a witness, we do not credit Looney's testimonial assertion that the affidavit was nonetheless accurate when he gave it.' Accordingly, we shall so modify the Trial Examin- er's Conclusions of Law and recommended Order. AMENDED CONCLUSIONS OF LAW 1. Delete paragraph 7 from the Trial Examiner's Conclusions of Law and substitute therefor the following: 1',7. By creating the impression of surveillance of its employees' union activities, Respondent engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act." 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 as modified below and hereby orders that Respondent, Sam Tanksley Trucking, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Order, as so modified: 1. Delete subparagraphs (a), (b), and (c) from paragraph 1 of the Trial Examiner's recommended Order and reletter the succeeding subparagraphs accordingly. 2. Substitute the attached notice for the Trial Examiner's notice. I Members Fanning and Jenkins do not, however, find the affidavit inadmissiblePer se. Looney was available for cross-examination, and the affidavit, at the time it was made, constituted a recording of Looney's recollection of events at that time only 16 days old and considerably fresher than his recollection at the hearing In these circumstances , Members Fanning and Jenkins think the Trial Examiner was correct in receiving the affidavit in evidence, for what it was worth. In the circumstances here presented, Chairman Miller believes the use of such an affidavit is an impermissible use of hearsay evidence APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence , the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL bargain collectively, upon request, with District No. 9, International Association of Machinists and Aerospace Workers , AFL-CIO, as the exclusive representative of all our employ- ees in bargaining unit A with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement . Bargaining unit A is: All mechanics employed by Sam Tanksley Trucking, Inc., at its Cape Girardeau facili- ty, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act, and all other employ- ees. WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574 as the exclusive representative of all our employees in bargaining unit B with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. Bargaining unit B is: All washers, greasers, and tiremen employed by Sam Tanksley Trucking, Inc., at its Cape Girardeau facility, excluding office clerical 198 NLRB No. 45 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Tanksley Trucking, Inc. and District No. 9, International Association of Machinists and Aeros- pace Workers, AFL-CIO, and Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 574, Jointly. Case 14-CA-6324 July 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 7, 1972, Trial Examiner Henry L. Jalette issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as modified herein. We do not adopt the Trial Examiner's 8(a)(1) findings of threats to and interrogation of Looney based on Looney's pretrial affidavit. Looney could not remember anything about the facts set forth in his affidavit after reading it at the hearing. Nor could he recall on the witness stand in detail what had occurred at his home the evening before he testified. Because of Looney's thus demonstrated unreliability as a witness, we do not credit Looney's testimonial assertion that the affidavit was nonetheless accurate when he gave it.' Accordingly, we shall so modify the Trial Examin- er's Conclusions of Law and recommended Order. AMENDED CONCLUSIONS OF LAW 1. Delete paragraph 7 from the Trial Examiner's Conclusions of Law and substitute therefor the following: 117. By creating the impression of surveillance of its employees' union activities, Respondent engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act." 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 as modified below and hereby orders that Respondent, Sam Tanksley 198 NLRB No. 45 Trucking, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Order, as so modified: 1. Delete subparagraphs (a), (b), and (c) from paragraph 1 of the Trial Examiner's recommended Order and reletter the succeeding subparagraphs accordingly. 2. Substitute the attached notice for the Trial Examiner's notice. 1 Members Fanning and Jenkins do not, however, find the affidavit madmissibfeper se. Looney was available for cross-examination, and the affidavit, at the time it was made, constituted a recording of Looney's recollection of events at that time only 16 days old and considerably fresher than his recollection at the hearing. In these circumstances , Members Fanning and Jenkins think the Trial Examiner was correct in receiving the affidavit in evidence, for what it was worth. In the circumstances here presented, Chairman Miller believes the use of such an affidavit is an impermissible use of hearsay evidence. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL bargain collectively, upon request, with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all our employ- ees in bargaining unit A with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. Bargaining unit A is: All mechanics employed by Sam Tanksley Trucking, Inc., at its Cape Girardeau facili- ty, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act, and all other employ- ees. WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574 as the exclusive representative of all our employees in bargaining unit B with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. Bargaining unit B is: All washers, greasers, and tiremen employed by Sam Tanksley Trucking, Inc., at its Cape Girardeau facility, excluding office clerical SAM TANKSLEY TRUCKING 313 employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. WE WILL NOT tell employees we know who is attending union meetings. WE WILL NOT discharge employees because of their activities on behalf of District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO; Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574; or any other labor organization. Since the Board found that we violated the law when we fired Arthur Terry, Eric Robinson, Robert York, Robert Proffer, and J. R. Bradshaw, WE WILL offer them their jobs back (except for Eric Robinson and Robert Proffer who already have their jobs back) or, if such jobs no longer exist, WE WILL offer them substantially equivalent employment, and WE WILL pay them for any loss of pay they may have suffered because we fired them. You are free to become and remain members of the District No. 9, International Association of Machin- ists and Aerospace Workers, AFL-CIO; Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574, or any other labor organization. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: This proceeding was initiated by a charge filed by District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574, Jointly (hereinafter referred to jointly as the Unions; separately, as Machinists Union or Teamsters Union), on June 28, 1971,1 and amended on August 4. Pursuant to the charge, as amended, complaint issued on August 13 alleging that Respondent had engaged in conduct independently violative of Section 8(a)(1) of the Act and had discharged six employees in violation of Section 8(a)(1) and (3) of the Act. The complaint, as amended at the hearing, further alleged that the Unions were each the exclusive representative of Respondent's employees in separate appropriate units, and that a bargaining order was necessary to remedy the 8(a)(1) and (3) violations. On October 13 and 14, a hearing was held at Cape Girardeau, Missouri. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by General Counsel and Respondent, I make the following findings of fact, conclusions of law and recommendations: FINDINGS OF FACT 1. INTRODUCTION SAM TANKSLEY TRUCKING, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced- by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 448 , 210 North 12th Boule- vard, St. Louis, Missouri 63101, Telephone 314-622-4167. i Unless otherwise noted all dates are 1971 2 Commerce is not in issue The complaint alleges, the answer admits, Respondent is a Missouri corporation with its principal office and place of business at Cape Girardeau, Missouri. Respondent is engaged in the furnishing of interstate trucking services from terminals in various States of the United States, including a terminal at Cape Girardeau, the only terminal involved in this proceeding.2 There are three buildings at the terminal. One is an office building, another is a repair shop, and the other is a service building. Although incorporated, Respondent is more like a partnership, with Sam Tanksley as owner of half of its shares, and another individual owning the other half. Charles Harris, who owns and operates several businesses in Cape Girardeau, is manager of Respondent's business. On June 22, several employees met with representatives of the Unions to discuss organization of the employees of Respondent, and eight employees signed cards applying for membership in either the Machinists Union or the Teamsters Union. The following morning, representatives of the Unions sought out Hams and they were informed, by an associate of his in one of his other enterprises, that Harris was away on a fishing trip. On Thursday, June 24, after finishing work, five employees were told by Foreman John Mosier that they were being laid off: Arthur Terry, Eric Robinson, Bobby Proffer, J. R. Bradshaw, and Robert York. All but Bradshaw had signed cards on June 22. Bradshaw had signed a card on the morning of the 24th. and I find that Respondent meets the Board's gross revenue standard of $50,000 for the interstate transportation of freight. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 15, Michael Sprenger, who had attended the meeting of June 22 and had signed a card, was discharged. General Counsel contends that the six discharges were attributable to the union activities of the employees. He also alleges that in the period following the discharges Respondent engaged in certain acts of interference, restraint, and coercion. ii. THE ALLEGED INTERFERENCE, RESTRAINT, AND COERCION A. The Testimony of Robert Proffer Proffer was one of the five employees terminated on June 24. About a week later, he went to see Harris about vacation pay due him from another company owned or managed by Harris, by which he had been employed before going to work for Respondent . In the course of this conversation, Harris is said to have made the following statements: (a) He said something about, one time he said it wasn't going to win, or something. That there is no way in the world it can win it. That it wasn't going to win the case or win it. That's about what he said. (b) He told me once he knew everything that went on in the room when everybody was there. The statements under (a), which Harris did not deny making, are alleged to be violative of the Act in that they are said to have suggested to an employee the futility of designating or selecting the Union as bargaining agent. It is clear to me that Proffer did not recall Harris' remarks. What he did remember , as recited above, is so ambiguous that it cannot support a finding of an unfair labor practice . Accordingly, I shall recommend dismissal of paragraph 5(f) of the complaint. The complaint alleges that Harris created the impression of surveillance "by telling an employee that Harris knew about the Union and which employees started and supported the Union." The testimony of Proffer quoted in (b) above is the sum total of General Counsel 's proof of this allegation. General Counsel states in his brief that Harris told Proffer that he knew everything that had gone on in the room "at the Holiday Inn," thus embellishing the testimony beyond what the witness said. However, the embellishment appears to reflect accurate- ly the understanding of both Proffer and Harris about what room Harris was referring . Harris admitted telling Proffer that someone had told him who was in the room, but denied saying he knew everything that went on in the room. Proffer's testimony was so sketchy that I cannot give it any weight where it differs from the testimony given by Harris. On Harris' own testimony, however, a finding is warranted that he created the impression of surveillance when he told Proffer that someone had told him who was in the room . Such a remark has a tendency to coerce employees in the exercise of their Section 7 rights because it might well instill in them a fear of reprisal . N.L.R.B. v. Terry Industries of Virginia, 403 F.2d 633 (C.A. 4, 1968). Respondent's principal contention with regard to this allegation is that at the time Harris made the remark, Proffer was not an employee . He had been discharged on June 24 and had approached Hams not as an applicant for employment but about vacation pay from another employ- er. However, as will appear below , I find that Proffer was discriminatonly discharged as alleged by General Counsel. Accordingly, he was still an employee within the meaning of Section 2(3) of the Act at the time of Harris' statements. But even if Proffer had been lawfully discharged, I would find that he was an employee within the meaning of Section 2(3) of the Act when he had his conversation with Harris. The Board has long held that the term "employee" in Section 2(3) of the Act includes "any employee and shall not be limited to the employees of a particular employer" and includes "any member of the working class ." E.g., Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177; Briggs Manufacturing Company, 75 NLRB 569. In this case, not only was Proffer a member of the working class, but even more, despite the fact he was not literally an applicant for employment when he had this conversation with Hams, he was a prospective applicant and, in fact, was recalled to work shortly after this conversation . On the facts herein, assuming Proffer had been lawfully discharged on June 24, I find Proffer was an employee at the time of Harris' statement to him conveying the impression of surveillance and that Respondent thereby violated Section 8(a)(1) of the Act. B. The Testimony of Paul Mirly The complaint alleges that on or about July 1, Harris interrogated an employee by asking him if he had sent in a card to the Union. The allegation is based on the testimony of employee Paul Mirly that about a week to 10 days after the termination of five employees on June 24, he had a conversation with Harris about purchasing an automobile during which Harris said he would like to talk to him about the Umon. Harris said he understood Mirly had not signed a card. Mirly replied, "I'm afraid I have." Hams said he thought that Mirly would have been the last one to sign and was so evidently disappointed that Mirly told him that it looked like he was going to have to hunt for another job. Harris told him no, that he had a job for him, and if he had no work with Respondent, there would be work for him at some other place operated by Hams. In view of this express assurance against reprisal , I see no basis for holding that the interrogation was coercive and I shall recommend dismissal of the allegation. Ben Duthler, Inc., 157 NLRB 69 (interrogation of Pierce). C. The Testimony of Harold Looney Paragraphs 5a through 5b of the complaint contain allegations of independent 8(a)(l) conduct on the part of Harris directed to an employee. In support of these allegations, General Counsel called as a witness Harold Looney, an employee of Respondent. Upon examination by General Counsel, Looney admitted to a conversation with Harris, but he could not recall anything about the conversation. However, he identified a prehearing state- ment he had given to a Board investigator and acknowl- edged that the statements he had made therein were true. The statement was offered into evidence as the past SAM TANKSLEY TRUCKING 315 recollection recorded of the witness and it was received into evidence over objection as General Counsel's Exhibit 4.3 On the basis of statements contained therein, General Counsel contends that a finding is warranted that Respondent violated Section 8(a)(1) of the Act as alleged in paragraphs 5a through 5d of the complaint. According to Looney, on June 29 he approached Harris about ordering some tires. After this matter was disposed of, Harris remarked there was something he wanted to talk to him about. He said there was a rumor about a union going around and he asked Looney if he had been approached. Looney said he had heard about it, but he said that he had not been approached. (This was untrue. Looney had signed a union card on June 24.) Harris said, "Well, I want you and Micke [Sprenger] to stay out of it." Looney replied that he didn't know about that, if Hams was fair with them, they would be fair with him. Hams pointed out that he had given Looney a job, and Looney countered that he could get a job anywhere. Harris then said, "If the union does get in, I'll close the place down, move it out of the state, and lay everybody off." Looney repeated that he'd be fair with Harris if Harris was fair with him. Harris said it would be hard to get another tire man and another man on the grease rack, but he still expected Looney and Mike to stay out of the union deal. Harris denied telling Looney that if the Union got in he would close the place and move it out of State. He corroborated the fact of a conversation with Looney and that he remarked he had "heard there were some union negotiators going [around]." Looney confirmed the fact and said he wanted no part of it, that he didn't like unions, and they could do nothing for him. Harris remarked that he had unions in some of his other companies that he could live with, but it would be hard on Respondent to have a union because of the truckdrivers (Respondent employs over 300 truckdnvers) and he didn't think that Respondent could live with a union. The issue presented by the foregoing is the usual one in Board cases: who told the truth. Normally, however, the conflict in testimony arises from the testimony of the witnesses given at the hearing. Here, the conflict is between Harris' sworn testimony before me and Looney's prehear- ing statement which he swore before me was true at the time he gave it. In my judgment, this circumstance does not alter the nature of the credibility issue: rather it is one of the circumstances that I have been forced to weigh in .deciding credibility. It is a nettlesome circumstance. In the first place, I cannot believe that Looney could not remember any part of his conversation with Harris. Surely, upon his reading of the prehearing statement, he must have remembered more than he would admit to. In my judgment, he was not truthful when he claimed to be unable to recall what it was Harris said to him about the Union. I believe he was afraid of losing his job and this was why he professed a lack of recollection. In my judgment, his preheanng statement contained a true account of his 3 In its brief, Respondent has renewed its objection to the receipt into evidence of Looney's affidavit I adhere to the ruling I made at the hearing In my judgment, Looney's affidavit fulfills the requirements for receipt into evidence of a preheanng written statement as past recollection recorded Looney verified the correctness of the contents of the statement and the prehearing statement was prepared on July 15, only 16 days after the conversation with Harris and I credit it. This conclusion is based on the absence of any showing that Looney had any motive to lie when he gave his prehearing statement and the fact that despite his fear of testifying Looney confirmed the truth of his prehearing statement. Moreover, Harris' own testimony is generally confirmatory of Looney's. The only significant difference is his denial of a threat to close the place down; yet, even there, Harris' testimony that he didn't think Respondent could live with a union is suggestive of a threat to shut down. For these reasons, and because I have concluded that Harris could not be credited in several other matters, I do not credit this denial and find that he made the statements attributed to him by Looney. These statements consisted of interrogation, accompanied by an express threat to close the place down, an implied threat that Looney and Sprenger could be replaced, and a direction that they stay out of the Union. Those statements were all violative of Section 8(a)(1) of the Act as alleged in paragraphs 5a through 5d of the complaint. III. THE ALLEGED DISCRIMINATORY DISCHARGES A. The Discharges of June 24 As previously described, a group of 10 or 11 of Respondent's employees met with union representatives at a local motel on June 22 and 8 of them signed applications for umon membership either in the Teamsters Union or the Machinists Union. Two days later, four of these employ- ees, plus an employee who signed a membership applica- tion card on June 24, were discharged. These discharges and a later discharge are alleged to have been motivated by these union activities and therefore violative of Section 8(a)(3) and (1) of the Act. At the outset then, it is seen that the Trial Examiner has the difficult task of determining Respondent's motive in discharging six employees. ... These discharge issues are difficult and sensi- tive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment-a good record, superior comparative production, recent change in assignment, lack of individual warning, and the like-and would tie his discharge solely to union sympathy or activity known to the employer. Management in turn presents equally plausible cause for the discharge-under production, production not in line with ability, trouble- making, attitude, undesirable effect on fellow employ- ees, similar contemporaneous discharges on non-umon employees, and the like,-and would tie the discharge to time-honored and accepted management preroga- tives wholly unrelated to union activity or sympathy The trier of fact must choose between these two. N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329, 332-333 (C.A. 8). conversation with Harris described therein In my judgment, this was sufficiently close in point of time to the date of the conversation to meet the test that a past recollection must have been recorded at or near the time of the events 3 Wigmore, Evidence, Sec 734, et seq (Chadbourn rev 1970), cf Airfan Radio Corporation, Lid, d/b/a KFSD-TV, I I I NLRB 566, 571 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In making his choice, the Trial Examiner must nearly always rely on circumstantial evidence. "Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circum- stances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact-here the trial examiner-required to be more naif than a judge." Shattuck Denn Mining Corp. v. N. L. R. B., 362 F.2d 466, 470, (C.A. 9). The task of determining Respondent's motive in this case is rendered doubly difficult by the circumstance that there is no direct evidence of company knowledge of the employees' union activities before the discharges of June 24. Thus, Harris testified that he made the decision and issued instructions to discharge the alleged discriininatees 1 week before the discharges were effected, and that he had no knowledge of any union activity among Respondent's employees at the time he made the decision. (There is no evidence there was any union activity at the time he assertedly made the decision.) On the date of the discharges, Harris was in Canada having left Cape Girardeau either the morning of the discharges or the day before.4 But just as the self-serving declaration of lawful motive is not conclusive, the declaration of lack of knowledge is not conclusive. It is settled law that proof of knowledge of union activity, like proof of motive, may be established by circumstantial as well as by direct evidence.5 Moreover, the same circumstances may support both an inference of company knowledge and actual motive. That is the situation in this case. Several circumstances support both an inference of company knowledge and a finding of unlawful motivation. These circumstances refute the testimonial assertions of Harris and compel me to discredit not only his denial of knowledge of the union activities of the employees but also his asserted reasons for the June 24 discharges. I cannot fault Harris' demeanor on the witness stand; he appeared to be honest and candid. However, upon review of his testimony, I find that it was far from precise; rather, contrary to impressions I formed at the hearing, I find his testimony vague and significantly lacking in details. But the point at which my credulity was 4 The date of Harris' departure for Canada is uncertain At one point he said he left for Canada on Friday, the same day as the discharges. When it was suggested to him that the employees were discharged on Thursday, he said then he must have left for Canada on Thursday At another point, he admitted he might have left on Wednesday The question with which his date of departure was interrelated, namely, the date of the discharges, was also left in an indeterminate state The discharged employees testified they were discharged on Thursday, June 24, whereas Foreman Mosier testified he discharged them on Friday Thus, as to two questions that seemingly could have been resolved with certitude by either party, the record was left in an indeterminate state Apparently neither party regarded the exact dates as critical While they are not critical to a decision, analysis of the case could have been simplified by fixing both the date of Harris' departure for Canada and the date of the discharges Certitude on these points would have helped in assessing the question of company knowledge and the motive for the discharges (Thursday marked the end of the workweek, and whether the discharges occurred then or a day later could have been a factor in my decision) In any event, since Respondent did not contest the date of the discharges, I accept the testimony of the employees as more reliable than that of Mosier and throughout my decision use June 24 as the date of the strained beyond the breaking point was where Hams testified how it happened that five employees were discharged at the same time. Each of the five alleged discnminatees discharged on June 24 were discharged for a different reason. Thus, Proffer was assertedly discharged because a new wash rack had arrived for installation; Bradshaw because work had been completed on a new office building; York because he was a careless employee; Terry and Robinson because they were not satisfactory employees. In other words, each discharge represents a separate case. A logical question is why was there a collective discharge. What single incident or common factor led to the decision to fire all five at the same time? Harris' only explanation was that "I don't consider myself vicious but I always try to group a few people together if there is anybody to be let go and let them go at one time so as they can go home and say, well, we or some of us got laid off instead of just I did, and it makes it easier as far as home is concerned." On cross- examination, Harris gave one example of the past exercise of his considerate policy, but one could not tell from the example given whether it presented a similar situation. More importantly, Harris contradicted his own policy when he discharged Michael Sprenger 3 weeks later. Moreover, his conduct in this matter contrasted sharply with the treatment he generally accords employees under his management. As previously indicated, Harris owns several businesses in Cape Girardeau, and he frequently refers an employee about to be laid off by one of his businesses to employment with another. Several of Res- pondent's employees, including Sprenger, Proffer, and Bradshaw, were sent to Respondent from one of Hams' other businesses. In this case, he not only did not offer the discharged employees other employment, or, if he had none, explain that he had none, he caused them to be discharged summarily; 6 so summarily, in fact, that the foreman who was instructed to notify the dischargees did not receive notice of the contemplated action until a few hours before the discharges, and was left so shorthanded by the discharge of Terry and Robinson that it was necessary to contract out work previously performed on Respondent's premises.7 "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N L.R.B. v. Sutherland Lumber Co., 452 F.2d 67 (C.A. 7, 1971). It is noteworthy that Harris' testimony that he discharges 5 Wiese Plow Welding Co, Inc, 123 NLRB 618, Piezo Manufacturing Corp, 125 NLRB 686, enfd 290 F 2d 455 (C A 2); N L R B v Tru-Line Metal Products Company, 324 F 2d 614 (C A 6), cert denied 377 U.S 906 6 Harris did assist Proffer in obtaining other employment, but this was some time after he had been discharged. r The foreman in question is John Mosier Respondent contends he is not a supervisor within the meaning of Section 2(11) of the Act The evidence indicates otherwise Every employee referred to Mosier as his supervisor Several reported to him when first hired and he is the only supervisor who is always on the premises Because Harris manages several companies besides Respondent, he is frequently absent, and Sam Tanksley did not have an office on the premises at the time of the events and is not shown to have played any part in supervision of the shop employees All the evidence indicates that it is Mosier who assigns work to employees and is responsible for the day-to-day operation of the shop and garage While he has no authority to hire or fire, it is clear that his direction of employees requires the use of independent judgment and it is a responsible direction of employees within the meaning of Section 2(11) of the Act. SAM TANKSLEY TRUCKING 317 instructed Sam Tanksley to discharge the five employees 1 week before the discharges were effected was not corrobo- rated by Sam Tanksley who for some unexplained reason was not called as a witness. When one couples the fact that the discharges occurred 48 hours after the union meeting and the signing of union membership application cards with the facts that all the employees discharged were card signers, that the discharg- es came without advance warning, that the reasons asserted for their discharges were supported only by vague and generalized accusations of unsatisfactonness, and the lack of any credible explanation for the tinung of the discharges, the only plausible inference that can be drawn is that Respondent learned of the employees' union activities and that the discharges of June 24 were motivated by such activities.8 The foregoing are general considerations which apply with equal force to all the discharges of June 24. However, there are some factual differences in the case of each which require presentation for a better understanding of my reasons for concluding that the discharges were unlawfully motivated. Arthur Terry had worked for Respondent since April 1970. He worked as a truckdnver until October 1970, when he was transferred to the shop as a mechanic at his request. He worked as a mechanic until his discharge on June 24. Terry testified that about 6:30 p.m. on the 24th, in the presence of Eric Robinson, Roy Bolick, and Jerry Henly, Mosier told him he was laid off. When Terry asked why, Mosier replied the only reason he could give was that he had been told the office force was being moved from its old location to the new office building and they would need less help and they were cutting down because it would be better organized. Terry said that was not a satisfactory explanation and asked if he was fired or laid off. Mosier said he was fired. Mosier testified about discharging the employees, but he did not really describe what it was he told the employees. Thus, Terry's testimony is uncontradicted and I credit it. Actually, Mosier added little to the case insofar as the reasons for the discharges. He was not consulted about them and learned that they were to take place only a few hours before they occurred. Under the circumstances, his testimony about the reasons for discharge has little value in support of Respondent's position. The decision to dis- charge the employees was made by Harris and it is his reasons we must examine. Harris' reasons for deciding to discharge Terry are not too clear. In his explanation, he used such phrases as "irritable towards John Mosier and Roy Bolick"; "His work wasn't what it ought to be"; and "he became sick from this emphysema." As to Terry's irritability and the shortcomings in his work, Harris supplied no details, nor did he relate these factors to any point in time. There is no evidence he received any reprimands or warnings. Mosier, Terry's foreman, gave essentially the same reasons, but, like his superior, he gave no details, except that Terry didn't get along with mechanic Roy Bolich who was senior to him and who was teaching Terry the work. As to Terry's illness shortly prior to his discharge, I do not understand the import of Hams' testimony. I do not understand whether Hams meant that Terry's illness rendered him unfit to do the work or that it made him unreliable. In any event, neither he nor Mosier spoke to Terry about it; neither asked him whether he could continue to do the work and be depended upon to work regularly. In fact, the only time Terry's illness surfaced as a reason for his discharge was at the hearing herein. I cannot accept such testimonial assertions as the real reason for discharge. They are at odds with undisputed facts such as the failure to notify the foreman of the proposed terminations beforehand so that when he was instructed to implement the decision he was upset ". . . because I didn't know anything about it," and because he was short of men. In other words, whatever Terry's shortcomings, he had been retained because of a lack of better mechanics. When Respondent discharged him, there was still a shortage of better mechanics and Terry's shortcomings were not shown to have interfered in any way with the performance of the repair work required, nor was he told that his work performance had anything to do with his discharge. The only new factor in the picture was the union meeting on June 22 which Terry had attended and where he had signed a card. Under these circumstances, on the basis of the record as a whole, including the evidence of Respon- dent's union animus and the timing of the discharge, I find that Respondent's asserted reasons for discharging Terry are pretextuous and that Respondent seized upon such reasons to conceal its motive to discharge Terry because its employees had evidenced a desire for union representation by their attendance at a union meeting and signing cards on June 22. What I have said respecting Terry's discharge applies with equal force in the case of Eric Robinson. Robinson had been hired in April as a mechanic. He had not previously been employed as a truck mechanic, but he testified, credibly, that Hams said he was willing to try him out, without specifying any trial period. He testified, without contradiction that he was never criticized about his work and that when he asked Mosier on June 24 why he was being discharged, Mosier could not give him a reason. According to Robinson, Terry asked Mosier specifically whether he was dissatisfied with their work and Mosier said no. (Terry did not include this in his testimony about the termination conversation, but he may have overlooked it. In any event, Mosier did not contradict Robinson's testimony.) Robinson also stated that Mosier told them that when he asked the office what he was going to do for mechanics in the shop, he was told they would get the work done on the road. 8 There is direct evidence that Harris acquired knowledge of the employees' union activities at or about the time of the discharges on June 24 Thus, on either June 23, 24, or 25 (Hams testified to each of these dates at one point or another in his testimony, see In 4, supra) Harris left for Canada He testified that on his arrival he called Respondent's office to relay a message to his wife on his safe arrival He was then told that they had fired a bunch of boys Just in the nick of time because there were union activities going on When he asked what proof they had of this, he was told that mechanic Roy Bolick had been badgered into signing a card Bolick had signed a card on the evening of June 23 If Bolick informed representatives of management on the evening of June 23, or early June 24, Harris' knowledge could very well have preceded the discharge action at the end of the workday, rather than followed it as he testified. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harris testified he decided to discharge Robinson because he had been told by Mosier that Robinson had had some trouble with some gears and with not getting rings and the heads back properly and had proven he did not have enough experience . Mosier confirmed that Robinson lacked experience, but the only example of bad work he gave was one where Robinson left a nut loose. According to Mosier , he made reports to Hams about Robinson's work, but all he claims to have told him was that Robinson was slow, but he thought Robinson might make it. Mosier did not recommend that Robinson be fired. Under the foregoing circumstances , I find that Robinson was discriminatorily discharged and that his asserted inability to do the work was seized upon as a pretext to discharge him because of Respondent's opposition to the Union. Robinson's testimony belies any contention that he was discharged because of unsatisfactory work perform- ance, and Mosier's own testimony tends to support him rather than Harris. An additional indicium of the pretextu- ous nature of the reasons asserted for discharge is the fact that shortly after June 24 Hams rehired Robinson. If Robinson was not qualified on June 24, he was no more qualified when rehired. Harris' only explanation for rehiring him was that it was with the understanding that Robinson could not expect a raise and would be trained by Mosier and Bolick, According to Harris, Robinson's rate of pay before discharge was the same as Bolick's and only 5 cents per hour less than Mosier's and they were complaining about it. He felt he either had to give them a raise or reduce Robinson 's rate of pay, something you just don't do. The difficulty with this argument is that I don't see how this problem was resolved by rehiring Robinson at the same rate of pay he had received prior to his discharge and with no raises to Mosier and Bolick. Nor am I persuaded that it explains Hams' failure to talk to Robinson before he fired him. Moreover, I cannot help but note that upon rehiring Robinson, Harris pointed out to him that if the employees went union it would be a low blow to him. While this statement is not alleged to have been unlawful, and, standing alone, does not appear to be so, Robinson would have been a dullard not to conclude that he had better not continue his adherence to the Machinists Union. Robert York was hired in March as a result of being solicited by Harris for whom he had previously worked. He was hired as a diesel engine mechanic's helper, but 3 weeks after he started working he was assigned to help out on the construction of a new office building doing such tasks as helping pour concrete and painting. About a month to a month and a half before his termination York received a 20-cent-per-hour raise . At about the same time, Harris spoke to him about attending a "Thermo-King" school for training on the maintenance and repair of truck refrigerat- ing units . This was not to come about for another year when York had more experience. Despite this auspicious beginning , York was discharged allegedly because he became sloppy, irritable , and hard to get along with. Harris testified that York worked briefly as a mechanic's helper, and Mosier and Bolick complained about his work, and he was moved to help out the employee working on refrigerated units and was to be sent to school. There was not enough work on refrigerated units for an entire week so York would shift from that to working on the office building. It was there that he demonstrated such an indifferent attitude to his work and did such sloppy work that Hams concluded he would not make a good mechanic. He instructed Mosier not to order any tools for York because he wasn't going to last. I have the same difficulty with Hams' explanation of York's discharge that I had with his explanation of the discharge of Terry and Robinson . As with Terry and Robinson, York was given no warning . Moreover, Harris' assertion that York did not perform well as a mechanic's helper for Mosier and Bolick is belied by the 20-cent raise given to York and the promise of training for another job involving mechanical skills. Harris' case against York really centers around his performance as a painter on the new office building. But this was temporary work and had been concluded . There was no complaint about York's performance as a trainee on refrigerated units, unless one regards the use of terms such as "sloppy," "irritable" (a term Harris also applied to Terry), and "hard to get along with" as complaints. Harris' complaints about York deserve little credence when one weighs the facts that York was given no warning and that when he asked Mosier why he was being terminated , all Mosier replied was he didn't know. Under these circumstances, including the timing of the discharge and Respondent's union animus, I conclude that York's discharge, like that of Terry and Robinson, was discriminatorily motivated and violative of Section 8(a)(3) and (1) of the Act. Robert Proffer began working for Respondent in the spring of 1971. He washed Respondent's trucks. He testified that Mosier discharged him about 7 p.m. on June 24 and that Mosier told him he was sorry, that it was a shock to him. Mosier did not describe his conversation with Proffer. He did admit, however, that he remarked he was upset, and that "sooner or later, I knew about J. R. [Bradshaw ] and Bob Proffer that they were going to be let go, but I didn't know it was going to be then." The asserted reason for the discharge of Proffer is that Respondent had ordered a new wash rack some time before June which was represented to it as so automatic that it would not need Proffer's services once it was installed. According to Harris, he told Proffer that he would have to let him go about 30 days before he did so. Of Respondent's position, all that is clear and undisput- ed is the fact that it purchased a new wash rack. In all other respects, its defense of the discharge of Proffer can only be sustained by an uncritical acceptance of Hams' and Moser's testimony . In view of the findings above that Respondent seized on various pretexts to discharge Terry, Robinson, and York, it is understandable that I cannot accept the testimony of Harris and Mosier in this matter also. In my judgment, the record establishes that Respondent ordered a new wash rack , that in anticipation of its arrival and in the belief it would not need Proffer after its installation it alerted Proffer he would be let go. However, Proffer was not to be let go until after the new wash rack was installed. SAM TANKSLEY TRUCKING 319 Proffer testified that on June 17, a day well remembered by him because it was his birthday, in a conversation with Harris about some vacation pay due him, Harris told him he was going to have to let him go in 6 weeks. The testimony that he would be let go in 6 weeks was undemed and I credit it .9 I deduce from this that Harris, knowing the new wash rack would arrive in the near future and that it would be automatic, was telling Proffer he would no longer have any work after the new washer was installed. Certainly, the statement is wholly at odds with Harris' testimony that he decided I week before June 24 to discharge Proffer and the four other dischargees, else on June 17 he would have given Proffer 1 week's notice. Actually, Harris never explained why he decided to discharge Proffer I week before the 24th. Some equipment for installation of the new wash rack had amved before the 24th, but installation had not begun, and, in fact, did not begin until after Proffer was discharged. At the time Proffer was discharged, he was not using the old wash rack because it was broken. He was handwashing trucks. This fact, and Mosier's own surprise at the timing of Proffer's discharge, supports a finding that Proffer's discharge was accelerated. For reasons given earlier, I conclude that the acceleration of the discharge was due to the employees' union activities and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. J. R. Bradshaw had formerly been employed by another concern owned or managed by Harris and was employed by Respondent in the spring of 1971. He worked at various jobs for Respondent and at the time of his discharge had been doing manual labor work in connec- tion with the construction of the new office building, and assisting Proffer washing trucks. According to Harris, some 5 to 6 weeks before Bradshaw's termination, he told Bradshaw that it looked the the work was running out. Hams testified that he had tried Bradshaw at three different jobs and that with the completion of the new office building, there was nothing left that Bradshaw could do. Bradshaw's is the most difficult of the cases before me. It is undisputed that the new office building was completed for occupancy on the weekend immediately following Bradshaw's discharge. If, therefore, there was no other work for Bradshaw because of his limitations, there is an explanation for the timing of his discharge which cannot be found in the cases of the other employees. Yet, I am persuaded from the precipitate manner in which the discharges were effected that he, like the other June 24 dischargees, was discharged on that date because of the employees' union activities. In this connection, I note Harris' admission that while he had mentioned to Bradshaw that the work was temporary, and intimated that the work was running out, he had not told him he would not have a job. I note again Harris' failure to notify Mosier of his alleged decision I week before June 24 to discharge any of the employees and his failure to tell Bradshaw. 9 Harris described a conversation with Proffer about 30 days before his discharge wherein he told him of the new washer, but he did not indicate how he fixed the time of that conversation, whereas Proffer did Hams did not indicate to Proffer how long he would have a job, but he did not deny Proffer's testimony of 6 weeks' work 10 Sprenger's examination by General Counsel was very sketchy Under these circumstances , I cannot divorce Bradshaw's case from that of the other employees and I find that he was discharged in violation of Section 8(a)(1) and (3) of the Act. B. The Discharge of Michael Sprenger Sprenger was hired as a tireman by Respondent in mid- June. He signed a union membership application at the union meeting on June- 22. He was terminated on July 15. According to Hams, about the same time Respondent hired Sprenger it also hired Harold Looney as a tireman although it did not need two tiremen. Hams told Mosier to try both men out and keep the better of the two on tires and assign the poorer to the grease rack. Looney turned out to be the better and Sprenger was assigned to the grease rack. He was not a cooperative employee and was caught numerous times with a soda bottle in his hands doing nothing when there was lots of work to do. For this reason, plus the fact that Sam Tanksley's brother had returned to work on July 9 and was working on the grease rack, Harris decided to terminate Sprenger. The foregoing is based on the uncontradicted testimony of Harris which I credit.10 Based on Harris' testimony, there is no basis for finding that Sprenger's discharge was discriminatorily motivated. True, Sprenger had no warn- ing, a factor I relied on in the cases of the other discharged employees, but Sprenger's discharge was not part of a mass discharge, and in his case the Respondent established the existence of good cause for discharge. Under the circum- stances, I conclude that General Counsel has failed to establish by a preponderance of evidence that Sprenger's discharge was discriminatorily motivated. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discharged Arthur Terry, Robert York, and J. R. Bradshaw because of their union activities, I shall recommend that it be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially General Counsel was content to elicit a "No" answer from Sprenger to a question as to whether there had been any criticism of his work by either Harris or Mosier This is hardly a satisfactory way of meeting Harris' testimony about Sprenger 's lack of cooperation and loafing. If Harris was not truthful, General Counsel could have recalled Sprenger on rebuttal His failure to do so leads me to believe Harris was truthful in this matter 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages, from the date of their discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As to Robert Proffer and Enc Robinson, who I have found were also discharged because of their union activities, I shall not require Respondent to make offers of reinstatement as they had been reinstated to their former jobs prior to the hearing. I shall recommend, however, that they be made whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of reinstatement computed in the same manner as set forth above. Although the complaint does not allege that Respondent violated Section 8(a)(5) of the Act, General Counsel has requested that a bargaining order be issued to remedy the 8(a)(1) and (3) violations. His request is predicated on the assertion that the Teamsters Union and the Machinists Union were each designated by a majority of the Respondent's employees as exclusive representative of such employees in separate appropriate units and on the principle, approved in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575 (1969), that Respondent's unfair labor practices were "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices.]" Relying on N. L. R. B. v. Li '1 General Stores, Inc., 422 F.2d 571 (C.A. 5), Respondent contends a bargaining order would be inappropriate because the Unions neither claimed a majority, nor demanded recognition, nor filed a petition. In my judgment, the case is distinguishable. Two days after the Union acquired a majority, they saw five of their supporters discharged. They can hardly be faulted if thereafter they did not demand recognition, nor filed a petition, but instead filed the charge herein. Whether a bargaining order should issue in this case depends on the seriousness of Respondent's unfair labor practices. There is no gainsaying the fact that my conclusions herein reveal flagrant unfair labor practices. The precipi- tate and summary discharge of five employees within 48 hours of their signing union membership application cards, the unlawful interrogation of employees, and the threat to close the shop down, are all actions that cannot help but have a chilling effect on any continued exercise by employees of Section 7 rights. The reinstatement of the 11 Cf The Loray Corporation, 184 NLRB No 57 12 Tom Ederle did not sign a card 13 Respondent asserts that the cards are not valid because they are not unambiguous cards in that they are applications for union membership and no authorizations to represent the employees in collective bargaining This is not so The cards are not ambiguous The Machinists card expressly authorizes it to act as the representative of the signatory, and the Teamsters discharged employees and the posting of a notice to employees are actions designed to remedy the unfair labor practices found and will tend to dissipate the coercive effects of such unfair labor practices. But as the Board nearly always states in cases of unlawful discharges, such unfair labor practices strike at the very heart of employees' rights safeguarded by the Act. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4). The coercive effects of discharges are not easily dissipated. The victims of such conduct may be reinstated to their former jobs, but at a cost to them not repayable by an award of backpay. They have suffered the anguish of a period of unemployment. They are an example for other employees to see of the probable consequences of selecting a union to represent them. In my judgment, the effects of the unfair labor practices found herein can only be repaired by a bargaining order. Such an order is appropriate, however, only if, as General Counsel asserts, the Unions have each been designated as exclusive representative of employees by a majority of the employees in each appropriate unit.ii The unit in which General Counsel asserts a majority of Respondent's employees designated the Machinists Union as exclusive bargaining representative has been denominat- ed unit A and is as follows: All mechanics employed by Respondent at its Cape Girardeau facility, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act and all other employees. General Counsel contends this unit consisted of nine employees: Arthur Terry, Roy Bolick, Paul Mirly, J. W. Jones, Grover Morrow, Jerry Henley, Eric Robinson, Robert York, and Tom Enderle. Respondent does not dispute the appropriateness of a unit of mechanics, but would include in such unit, in addition to the nine employees named above, Gary Tanksley and John Mosier. I exclude Mosier because he is a supervisor. Gary Tanksley is the son of Sam Tanksley, who owns 50 percent of Respondent's stock. He is therefore excluded on the authority of Foam Rubber City #2 of Florida, d/b/a Scandia, 167 NLRB 623. In addition, the record indicates that he enjoys privileges not enjoyed by unit employees. I find, therefore, that as of June 22, the unit of mechanics consisted of nine employees, and it did not increase in size thereafter. As of June 28, all but one of nine employees in this unit had signed union membership application cards.12 As these cards were valid authorizations of Machinists Union to act as representative of Respondent's employ- ees,13 for the reasons given above, I shall recommend that Respondent be ordered to recognize the Machinists Union as exclusive representative of Respondent's employees in unit A, and that it bargain with it upon request. Unit B, the second unit in which the General Counsel seeks a bargaining order is a unit of: all washer, greasers, and tiremen employed by Respondent at its Cape card states the signatory voluntarily chooses and designates it as his representative for purposes of collective bargaining, and there is no evidence the language of the cards was "deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature " N LR B. v. Gissel Packing Company, Inc, supra, at 606-607 SAM TANKSLEY TRUCKING 321 Girardeau facility, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act and all other employees. According to General Counsel, this unit consists of six employees: Harold Looney, Michael Carpenter, J. R. Bradshaw, Michael Sprenger, Steve Jones, and Robert Proffer. Respondent contends that this unit also includes Richard Tanksley, R. Cunningham, and Frank Kelley. Richard Tanksley is Sam Tanksley's brother. He owns and operates a large farm and works only when it suits him. He had worked for Respondent during the period preceding March 19, 1971, but did not work thereafter until July 9, 1971. In the week preceding the hearing, he worked 2 days because he was combining beans. Mosier testified that when Richard Tanksley is putting in his crop "and every thing else" he is not there, and the length of time he will be out will depend on whether it rains "or if he wants to go fishing." As Harris stated it, "He's, of course, Sam Tanksley's brother, and of course, you don't turn him down." It is clear that Richard Tanksley enjoys special privileges as a result of his relationship to Sam Tanksley and that his interests are more closely allied with those of management than with employees in the unit. Accordingly, I shall exclude him from the unit. R. S. Cunningham is janitor in Respondent's new office building. He spends 50 percent of his time working for Respondent and 50 percent working for another of Harris' businesses. His hours of work are different from those of unit employees, and it appears that he is separately supervised and has no or limited contact with unit employees. I conclude he does not have sufficient community of interest with unit employees and shall exclude him from the unit. Frank Kelly is a cleanup man at night and a watchman. Unlike Cunningham, his work is in the shop area and he receives his instructions from Mosier. His duties include checking the water in the trucks, fueling them, and picking up tools. Under the circumstances, I conclude he has a community of interest with the employees in the appropri- ate unit, and I shall include him. On the basis of the foregoing, as of June 24, there were seven employees in the appropriate unit, four of whom had signed Union membership application and authorization cards (Looney, Bradshaw, Proffer, and Sprenger). That same day, Respondent sought to destroy the Teamsters Union's majority by discriminatorily discharging Brad- shaw and Proffer. Such flagrant conduct was part and parcel of similar conduct in another unit of employees working in close proximity. The considerations that dictate a bargaining order in Unit A are the same for Unit B, and I shall recommend that a bargaining order issue respecting Unit A as a necessary remedy to repair the effects of Respondent's unfair labor practices. As I previously noted, the unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act. I shall therefore recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing 14 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. upon the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Co., supra. CONCLUSIONS OF LAW 1. Sam Tanksley Trucking, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 9, International Association of Machin- ists and Aerospace Workers, AFL-CIO, and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574, are each labor organizations within the meaning of Section 2(5) of the Act. 3. All mechanics employed by Respondent at its Cape Girardeau facility, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. All washers, greasers, and tiremen employed by Respondent at its Cape Girardeau facility, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. District No. 9, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is the exclusive representative of the employees of Respondent in the unit described in paragraph 3 above within the meaning of Section 9(a) of the Act. 6. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574 is the exclusive representative of the employees of Respondent in the unit described in para- graph 4 above "within the meaning of Section 9(a) of the Act." 7. By interrogating employees about their union activi- ties, creating the impression of surveillance of union activities, and threatening closure of its facilities if employees select a union as their representative for purposes of collective bargaining, threatening to replace employees if they select a Union to represent them, and directing them to stay out of a Union, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 8. By discharging Arthur Terry, Eric Robinson, Robert York, Robert Proffer, and J. R. Bradshaw, because of their union activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) and 2(6) and (7) of the Act. 9. General Counsel has failed to establish by a preponderance of the evidence that the discharge of Michael Sprenger was violative of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 14 102 48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Respondent, Sam Tanksley Trucking, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities in a manner or under circumstances constituting interfer- ence with, and restraint and coercion, of employees in their exercise of Section 7 rights. (b) Threatening to close its facility if employees select a Union to represent them. (c) Threatening to replace employees if they select a Union to represent them and directing them to stay out of a Union. (d) Creating the impression of surveillance of the union activities of its employees by telling employees it knows who attended union meetings. (e) Discouraging membership in, or activities on behalf of, District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 574, or any other labor organization of its employees, by discharging employees because of their activities on behalf thereof, or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (f) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self- organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the unit described in paragraph 3 above, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Upon request, bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 574 as the exclusive representative of all employees in the unit described in paragraph 4 above, and, if an understanding is reached, embody such understanding in a signed agree- ment. (c) Offer Arthur Terry, Robert York, and J. R. Bradshaw 15 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of their reinstate- ment in the manner set forth in the section entitled "The Remedy." (d) Make whole Robert Proffer and Eric Robinson for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date they were reinstated in the manner set forth in the section entitled "The Remedy." (e) Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this Recommended Order. (g) Post at its Cape Girardeau, Missouri, place of business, copies of the attached notice marked "Appen- dix." 15 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (h) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.i6 IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by a preponderance of the evidence be dismissed. 16 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith "