The Singer Co.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Singer Company, Climate Control Division and Bob L. Atkinson and Sheet Metal Workers Inter- national Association, AFL-CIO, and its Local Union No. 459, Parties to the Contract Sheet Metal Workers International Association, AFL-CIO, and Sheet Metal Workers Internation- al Association, Local Union No. 459, AFL-CIO (The Singer Company , Climate Control Division) and Bob L. Atkinson and The Singer Company, Climate Control Division, Party to the Contract. Cases 14-CA-6426 and 14-CB-2341 August 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 27, 1972, Trial Examiner Louis Libbin issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, the Employer filed cross-exceptions and a brief in support thereof, and Respondent Union 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 briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions as modified herein. 1. The Trial Examiner found, and we agree, that Respondent did not engage in any conduct violative of the Act by accreting the over-the-road truckdri- vers to the production and maintenance unit.' 2. The Trial Examiner further found that Respon- dent Company's discharge of over-the-road driver Atkinson was not in violation of the Act. We do not agree.2 The Trial Examiner correctly found that Atkinson was discharged for engaging in concerted activity in attempting to persuade the Company to agree to a more satisfactory wage scale for the over-the-road drivers. He further found, however, that such activity, though concerted, was not protected be- cause, in attempting to negotiate changes in the current contract, Atkinson bypassed Local 459, the I The Trial Examiner also found that the Company, through statements by three of its supervisors, violated Sec 8(a)(I) of the Act As no exception was taken to these findings, we hereby adopt them pro forma 2 Chairman Miller does not join his colleagues in this finding He would affirm the Tnal Examiner on this issue , for the reasons stated by the Examiner in his decision " Combustion Engineering, Inc, 177 NLRB 521, 526, Eastern Illinois Gas and Securities Company, 175 NLRB 639, 640, reversed on other grounds 440 -exclusive bargaining representative. The complaints which led to Atkinson's discharge took place between May 7, 1971, and June 7, 1971. ',Although the contract, including provisions for the 'over-the-road drivers, was agreed upon and became ,effective on May 1, it was not printed in its final ,form and executed until July 19. In fact, during the ,time between the parties' agreement on May 1 and ,the execution of the contract, changes were made in those provisions covering the over-the-road drivers, increasing the wage scale, as a result of Atkinson's efforts. Clearly then, Atkinson could not be expected to be sure of the status of the contract and its provisions regarding the over-the-road drivers at the time he pressed his grievance. Indeed, the provisions quite obviously remained subject to change, and were in fact changed, before the contract was executed on July 19. The Board has held that, while under Section 9(a) and its proviso an employer may lawfully refuse to ,resolve, without the presence of a union representa- tive, an employee's grievance which poses demands which are in conflict with the contract in effect, Section 9(a) does not confer on an employer the right ,to discharge an employee for presenting such a !grievance.3 The Board reasoned that to view the 9(a) proviso otherwise: would lead to the incongruous result of, on the one hand, granting an employee freedom to present his complaints to his employer without the intervention of the bargaining representative and on the other, subjecting that employee to the peril of discharge should his complaint contradict the terms of the contract.4 The same rationale for protecting an employee who may, in the final analysis, have incorrectly interpret- ed the contract, is applicable when, as here, an employee could be justified in believing that he was not yet covered by a final and binding contract. Further, in the absence of unusual circumstances not present here, we can find no basis for withdrawing the Act's protection of an employee's right to engage in the concerted activity of grieving simply because the proviso of Section 9(a) does not require the Employer to adjust the employee's complaint under the present circumstances.5 Thus, we find that, while Atkinson's complaint may have contradicted the terms of the contract in F 2d 656, Mushroom Transportation Co, Inc, 142 NLRB 1150, 1157, 1158 4 Eastern Illinois Gas and Securities Co, 175 NLRB 639, 640, reversed on other grounds 440 F 2d 656 5 The protections of the Act are not dependent upon a correct interpretation of the contract or on the merit or lack of merit of the concerted activity Combustion Engineering, Inc, 177 NLRB at 526, Eastern Illinois Gas and Securities Co, 175 NLRB at 640, Anaconda Aluminum Company, 160 NLRB 35, 40, Mushroom Transportation Co, Inc, 142 NLRB at 1158 198 NLRB No. 122 THE SINGER COMPANY It 871 effect and did not merit adjustment under Section 9(a)'s proviso, it was, nevertheless, protected concert- ed activity. His discharge for such activity was, therefore, violative of Section 8(a)(1) of the Act 6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Singer Company, Climate Control Division, Red Bud, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with loss of their jobs by discontinuing its over-the-road truckdriving oper- ations and going back to using common carriers to haul all its freight or going to leasing drivers, or with any other economic reprisals, if they joined or selected a Teamsters local as their bargaining representative. (b) Discharging employees for engaging in protect- ed concerted activity. (c) In any like or related manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2, Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its plant in Red Bud, Illinois, copies of the attached notice marked "Appendix." T Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case 14-CA-6426 be, and it hereby is, dismissed insofar as it alleges violations of Section 8(a)(2) and (3) and of Section 8(a)(1) not herein specifically found. IT IS FURTHER ORDERED that the complaint in Case 14-CB-2341 be, and it hereby is, dismissed in its entirety. B As Atkinson returned to work on the same day of his dismissal and suffered no loss of worktime, we find it unnecessary to provide any remedial order for reinstatement or for backpay r In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with loss of their jobs by discontinuing our over-the-road trucking operations and going back to using common carriers to haul all our freight or going to leasing drivers, or with any other economic reprisals, if they joined or selected a Teamsters local as their bargaining representative. WE WILL NOT discharge employees for engaging in protected concerted activity by presenting grievances on behalf of themselves and other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. THE SINGER COMPANY, CLIMATE CONTROL DIVISION (Employer) Dated By (Representative) (Title) 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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101 , Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner : Upon charges filed on September 10 and October 20, 1971, by Bob L. Atkinson, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14 (St. Louis, Missouri), issued a complaint, dated October 28, 1971, against the Singer Company, Climate Control Division, herein sometimes called Respondent Company or the Company, and also issued a complaint, dated November 15, 1971, against the International and its local, 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, AFL- CIO, and Sheet Metal Workers International Association, Local Union No. 459, herein sometimes called Respondent International or the International and Respondent Local 459 or Local 459, or collectively Respondent Unions. With respect to the unfair labor practices , the complaint against Respondent Company alleges, and the duly filed answer of said Company denies, that said Company engaged in unfair labor practices violative of Section 8(a)(1), (2) and (3) of the Act; and the complaint against Respondent Unions alleges, and their duly filed answer denies, that Respondent Unions engaged in unfair labor practices violative of Section 8(b)(1)(A) and (2) of the Act. Said complaints were subsequently consolidated. This case was tried before me at St. Louis, Missouri, on January 17 and 18, 1972. All parties appeared at the trial and were given full opportunity to participate therein. On February 22, 1972, the General Counsel, Respondent Company and Respondent Unions filed briefs, which I have fully considered . For the reasons hereinafter indicat- ed, I find that Respondent Company engaged in conduct violative only of Section 8(a)(1) of the Act and that Respondent Unions did not engage in any conduct violative of the Act. Upon the entire record in the case , and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Respondent Singer Company, Climate Control Division, a New Jersey corporation with its principal office and place of business in New York, New York, maintains plants in the State of Illinois where it is engaged in the manufacture, sale and distribution of heating and air conditioning systems and related products. The only facility involved herein is the Company's plant at Red Bud, Illinois. During the year ending December 31, 1970, a representative period, the Company sold and shipped products, valued in excess of $50,000, from its Red Bud, Illinois plant directly to points located outside the State of Illinois. Upon the above admitted facts, I find , as all Respon- dents also admit in their answers, that Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaints allege, all Respondents admit, and I find, that Respondent International, Respondent Local 459, and Chauffeurs & Helpers Local Union No. 50, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter sometimes called Teamsters Local 50 , or the Teamsters, are each labor organizations within the meaning of Section 2(5) of the Act. Ili. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues As previously noted, Respondent Company's Red Bud, Illinois, plant is the only facility involved in this proceeding. Pursuant to a petition filed in Case 14-RC-6107 on December 20, 1968, Respondent International won a Board-conducted election and was certified by the Board on February 17, 1969, as the exclusive collective-bargain- ing representative of Respondent 's Company's employees in a unit of "all production and maintenance employees including truck drivers of the Employer's Red Bud, Illinois facility EXCLUDING office clerical and professional employ- ees, guards and supervisors as defined in the Act." At the time there were about 235 employees in the appropriate unit, including the only truckdriver employed at the plant, Alfons Wolter, who voted in the election and whose duties consisted principally of making several trips daily between Red Bud, Illinois and St. Louis, Missouri, a distance of about 30 miles each way. That same month, Respondent Local 459 was organized and thereafter it entered into collective-bargaining negotia- tions with the Company. As a result of said negotiations, Respondents Local 459 and the Company executed a collective-bargaining agreement, effective from May 12, 1969, to April 30, 1971, in which the Company recognized Local 459 as the "sole and exclusive bargaining agent .. . for all hourly production and maintenance employees as stipulated in Case # l4-RC-6107 and certified" by the Board in the specific language set forth in the Board's certification. The contract contained no classification of over-the-road driver or of truckdriver. Wolter was covered by the contract under the classification of "truck chauf- feur." In May 1970, the Company began an over-the-road trucking operation at its St. Louis facility, using "casual" drivers who were hired and paid on the basis of individual trips to haul materials to and from the Red Bud plant and who were not carried on the Company's payroll as employees. The 1969-1971 contract contains no reference to these or to any other over-the-road truckdrivers. In late 1969 the Company's Traffic Manager Bandy made a survey and recommended that the establishment of an over-the-road truckdriving operation would result in economies in the Red Bud operations. In early 1971 the Company determined to establish a new over -the-road trucking operation at the Red Bud plant and to add over- the-road drivers to its Red Bud employee complement. Discussions with Respondent Local 459 concerning the addition of the over-the-road truckdrivers to the Red Bud operations began in February 1971. Negotiations for a new collective-bargaining agreement began on March 17, 1971. During the negotiations, the Company's chief negotiator took the position that the over- the-road truckdrivers were included in the original Board certification and should be part of the plant unit represent- ed by Local 459. The Company also relied on certain provisions of the contract (art. 2 and 16) as authorizing it to establish a new job or make a permanent change in an existing job. Agreement between the parties on all points of the new contract, including provisions for the over-the- THE SINGER COMPANY ')road truckdrivers, was reached on May 1, 1971, and ratified by Local 459 on that day, although the final form of the new contract was not signed until July 19, 1971. The provisions relating to the over-the-road truckdrivers are contained in a Letter of Agreement which is included in the contract. Between May and July 19, the wage scale for the over-the-road truckdrivers was increased and the contract as executed reflects this increase . The contract is effective from May 1, 1971 to April 30, 1973. It contains, among other things, a dues checkoff authorization provi- sion and a union-security clause requiring as a condition of continued employment that all new employees hired after its effective date should become members of Local 459 "by their thirty-first day of continuous employment within the bargaining unit." The Company's Red Bud over-the-road trucking opera- tion began on May 9, 1971, and thereafter functioned with a complement of four over-the-road truckdrivers. Some of the drivers were requested to join Local 459 on penalty of discharge if they did not join within the first 31 days of their employment. Some joined, signed dues checkoff authorizations and had their dues deducted from their pay by the Company. At the time when Respondents agreed upon the terms of the 1971-73 contract and extended its terms and conditions of employment, including the union security provisions, to the over-the-road truckdrivers, Respondent Local 459 did not represent a majority of the over-the-road truckdnvers. Bob Atkinson, the Charging Party herein, was first employed as an over-the-road truckdriver at Respondent's Red Bud plant on May 9, 1971. He was discharged by the Company on July 8, 1971, and reinstated that same day when it was learned that his 60-day probationary period had already expired. Some of the over-the-road truckdrivers who were dissatisfied with their wages and conditions of employment joined Teamsters Local 50 which filed a petition with the Board on October 4, 1971, to represent a unit of over-the- road truckdrivers at the Company's Red Bud plant. Processing of this petition is being withheld by the Board's Regional Office because of the pendency of the charges in the instant case. The facts hereinabove detailed are not in dispute. The principal issue litigated in this proceeding is whether, by the conduct of the Respondents in agreeing that Local 459 was the representative of the over-the-road truckdrivers as part of the production and maintenance unit and by entering into and enforcing a union-security agreement covering these over-the-road truckdrivers, all at a time when Local 459 did not represent a majority of them, Respondent Company violated Section 8(a)(1), (2), and (3) of the Act and Respondent Unions violated Section 8(b)(I)(A) and (2) of the Act. A determination of this issue depends on whether over-the-road truckdrivers on the one hand are found either to be included in the unit described by the certification and the contract or to constitute a proper accretion to the existing unit, or on the other hand are found to constitute a separate appropriate unit. Also involved is the issue of whether Respondent International 873 is liable for any unfair labor practices which may be found against its Local 459. Other issues litigated in this proceeding are whether Respondent Company violated Section 8(a)(1) and (3) of the Act by the discharge of Bob Atkinson on July 8, 1971, and independently violated Section 8(a)(1) of the Act by certain statements made to over-the-road truckdrivers by admitted statutory supervisors of the Company. The latter issue also involves the usual credibility resolutions as to some of the alleged statements. B. Allegations Relating to the Contract Covering and Applied to Over-the-Road Truckdrivers i 1. The over-the-road trucking operation The Company's over-the-road trucking operation is geared to inbound materials used in the Company's manufacturing process. The procedure starts out with a "pickup sheet" designating a vendor's place of business where a pickup is to be made of compressors, coils, or tubing which constitute the raw materials used by the Company in the manufacture of its product . Then the sales division is contacted to determine what available outbound shipments of the Company's products would coincide with the geographic location where pickups are required to be made . Thus, the driver's routing is based on the incoming pickups of raw materials and not on the shipment of the Company's finished product. An over-the-road driver is dispatched to make deliveries of the Company's products only if a pickup of raw materials is required in the same geographic location . As a result of this procedure, the Company still makes about 65 to 75 percent of its outbound shipments by common carrier rather than by its own drivers. In February 1971, when it became known among the employees that the Company was going to employ over- the-road truckdrivers, three production employees (Shoe- maker, Millman, and Biesterfeld) in the plant bargaining unit applied to the Personnel Manager for Jobs as over-the- road drivers. All three were obviously members of Local 459. The Company employed four full-time over-the-road truckdrivers when this operation began on May 9, 1971. These four were Shoemaker and Biesterfeld , both of whom had requested a transfer from plant production jobS,2 and Atkinson and Brumley, both of whom had previously worked as "casual" drivers. At his own request , Shoemaker was transferred back to the plant as a production welder early in June 1971. He was replaced by Burns who had previously worked as a "casual" driver. On June 28, 1971, Biesterfeld , at his own request, was transferred back to a plant production job and was replaced on that date by Wilson. On October 21, 1971, Brumley, at his own request, was transferred into a plant production job as a punch press B operator . He was replaced by Macklin who had been temporarily employed for a short period a month earlier. About 5 days after his transfer into a production job, Brumley requested a transfer back to the job of over- the-road truckdriving. His request was not granted because there was no vacancy in the driving staff . Thereafter he I The factual findings hereinafter set forth are not in dispute 2 Millman was disqualified because he failed to pass the driving test 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewed his request on three different occasions and each time was told that he would have to wait until there was an opening. During the month preceding the instant trial, Bums asked Traffic Manager Bandy if it would be possible for him to transfer into a production job if he should so desire in the future. Bandy was noncommittal and said he would think about it. From time to time in emergency situations, production employees have been assigned by the Company to make over-the-road truckdriving trips. On such occasions, they are paid on the same basis as the regular over-the-road drivers. At no point has the truckdnv- erjob ever been posted for bid. Duane Pryor is general manager of the Company's approximately 400 hourly and salaried employees. About 50 employees are salaried and comprise executives, supervisors, and clericals. The remaining 350 are hourly production and maintenance employees represented by Respondent Local 459. Directly under Pryor in the supervisory heirarchy is Materials Manager Blitzer. Direct- ly under Blitzer is Traffic Manager Bandy who directly supervises the over-the-road drivers. Bandy's backup man is Shipping Foreman Winkleman who supervises the local driver, Wolter, and the shipping department employees who load the over-the-road drivers' trucks. Winkleman is in charge of the over-the-road drivers when Bandy is absent or sick, issues the over-the-road drivers all their bills of lading and has a key to the over-the-road drivers' box. They spend over 95 percent of their time away from the plant and have little or no contact with plant employees. Their equipment consists of twin-axle, diesel-powered, sleeper cab tractors, pulling 40-foot high-cube trailers 12-1/2 or 13 feet high. Under the current contract, the over-the-road drivers are paid a weekly salary of $90 plus mileage rates and allowances for waiting time, room and board while on the road. However, for vacations, holidays, and other benefits, they are paid the same hourly rate as the "truck-chauf- feur," Wolter. In common with the production employees, they share the compensatory benefits such as pensions, vacations, holidays, insurance, and other fringe benefits as well as seniority. 2. The "truck-chauffeur" Alfons Wolter has been the only employee in the classification of "truck-chauffeur." The current contract lists this classification as labor grade 8 with an hourly rate of $3.54. Article 11(c) provided for time and one half for all hours worked in excess of 8 per day or 40 per week. He admittedly is covered by the term "truck drivers" in the certification. Wolter is the local driver. He is under the direct supervision of Foreman Winkleman of the shipping department, makes two to three loads a day from Red Bud, Illinois, to St. Louis, Missouri, a distance of 30 miles each way, and may spend 2 to 3 hours sitting around the warehouse and shipping department waiting for his truck to be loaded. However, prior to 1971 he spent about 10 percent of his time on over-the-road driving. During 1971 he spent only about 2 to 3 percent of his time driving over- the-road. On over-the-road trips he is still paid his contract rate, including time and a half over 8 hours a day, plus expenses for meals and lodging. He has never been paid on a mileage basis and never took an I.C.C. test on safety regulations. He drives a gasoline single-axle tractor and pulls the older trailers varying in length from 36 to 40 feet. 3. Contentions of the parties The General Counsel contends that (1) the classification of over-the-road truckdrivers was not included in the unit for which the International was certified or in the original contract between Local 459 and the Company; (2) the Respondent neither claimed to, nor did, represent a majority of them; and (3) in view of the lack of community of interest between the over-the-road drivers and the local driver and the production and maintenance employees, the over-the-road truckdriver constitute a separate appropriate unit and not an accretion to the production and mainte- nance unit represented by Local 459. Under these circumstances, the General Counsel contends, the conduct of the contracting parties in extending to the over-the-road truckdrivers, and enforcing, the terms and conditions of employment set forth in the current contract, constitutes violations of Section 8(a)(1), (2), and (3) of the Act by the Company and violations of Section 8(b)(I)(A) and (2) of the Act by the Unions. The Respondents advance two alternative contentions. First, they contend that the over-the-road drivers are included in the unit described by the certification and the original contract. In support of this contention, they point out that (1) while the certification and contract description of the unit includes "truckdnvers," there never has been a job classification with that title; (2) although Wolter was the only driver employed at the time of the election, the unit description is in the plural; (3) Wolter at that time spent about 10 percent of his time in over-the-road driving; (4) a reasonable interpretation of the word "truckdrivers" in the unit description would have to include the over-the- road portion as well as the local portion of the then existing work; and (5) the over-the-road function of the "truckdnv- ers" was expanded pursuant to the provisions of the contracts which outline the procedure to be followed "if the Company establishes a newjob, or makes a permanent change in an existing job." For their second contention, Respondents assert that in any event "the facts in this case nevertheless warrant the inclusion of over-the-road drivers in the bargaining unit under the Board's accretion doctrine." They then point out the facts which, they contend, establish that the over-the- road drivers have a substantial community of interest with the production and maintenance unit to warrant their inclusion in a single bargaining unit. 4. Applicable Board unit principles In Valley of Virginia Cooperative Milk Producers Assn., 127 NLRB 785, the Board, in considering the unit placement of driver-salesmen , stated at p. 787: Even though they may be away from the plant most or all of the time and have little contact with plant employees, truckdrivers are included, under established Board practice, in production and maintenance units unless the parties agree to exclude them or some labor THE SINGER COMPANY 875 organization seeks to represent them separately . . . we conclude that they have sufficient interest in common with the production and maintenance employees to warrant their inclusion in a production and mainte- nance unit when, as here, there is no agreement to exclude them and no other labor organization seeks to represent them separately. Two years later, the Board in E. H. Koester Bakery, 136 NLRB 1006, changed its blanket policy of automatically including truckdrivers in the more comprehensive unit when the foregoing factors are present. Thus, the Board stated in that case as follows (pp. 1010-11): However, when the parties are in disagreement as to the unit placement of truckdrivers , there is no bargain- ing history, and no union is seeking to represent them separately, it is incumbent upon the Board to consider the pertinent factors present in order to determine wherein the predominant interests of truckdrivers are vested. In treating with this type of situation, the Board has, over the years, considered various criteria as guides in its determinations. In large part, such determinations were based upon the evidence present- ed in each case bearing upon the factual situation as it reflected the existence of a community of interest or lack thereof. In another 2 years, the Board followed this development with the rationale of Marks Oxygen Company of Alabama, 147 NLRB 228. In considering the unit placement of nine truckdrivers who transported the Employer's product to both local and distant points , the Board stated as follows (pp. 229-230): Prior to the Koester decision, the Board for a period of time followed a policy of requiring the inclusion of truckdrivers in production and maintenance units unless the parties agreed to exclude them, or unless another labor organization sought to represent them separately . In the Koester case, supra, the Board reversed the policy of requiring the inclusion of truckdrivers where there was disagreement. However, it did not reverse the finding, stated in Valley of Virginia, concerning a community of interest between truckdriv- ers and production and maintenance employees in relation to the flow of materials and products into and out of the plant. Nor did the Board reverse such basic policies as (a) a plantwide unit is presumptively appropriate ; (b) a petitioner's desires as to the unit is always a relevant consideration ; and (c) it is not essential that a unit be the most appropriate unit. The elimination of the policy of requiring the inclusion of truckdrivers brought the Board 's policy with respect to such employees into harmony with its long-standing and oft-stated policy of not compelling a labor organization to seek representation in the most compre- hensive grouping . Where, as here, a labor organization is willing, and seeks, to represent them in a plantwide unit, we agree with the Regional Director that even though they may be away from the plant most or all of the time and do little or no work in the plant, truckdnvers have sufficient community of interest with production and maintenance employees to warrant including them in such a unit. As recently as September 22, 1971, the Board reaffirmed its adherence to the principles of the Marks Oxygen case when it affirmed the Regional Director's inclusion of three over- the-road drivers in the production and maintenance unit. Dayton Steel Foundry, 193 NLRB No. 45. 5. Conclusions If the General Counsel's contentions are sustained, then it follows under controlling Board precedents that the Respondents violated the Act in the respects previously stated. On the other hand, if either the first or second contention of the Respondents is sustained, it follows that they engaged in no unlawful conduct in these respects. I find merit in Respondents' second contention and therefore deem it unncessary to address myself to the first one. In arriving at this conclusion, I have been motivated primarily by the following relevant factors: (a) At the time when the current contract was agreed upon and applied to the over-the-road truckdrivers, no other union was seeking to represent them in a separate unit. I agree with Respondents that for the purpose of determining the lawfulness of their conduct, the situation must be viewed as it existed at the time of their alleged misconduct. (b) Although Respondent Company initiated the move- ment to include the over-the-road truckdrivers in the production and maintenance unit, Respondent Local 459 nevertheless was willing and agreed to represent them as part of the comprehensive unit. (c) The over-the-road operation is geared to the pickup of inbound raw materials used by the Company in its manufacturing process and any outbound shipments are only incidental thereto. This demonstrates the existence of a community of interest with production employees in relation to the flow of materials into the plant. (d) During a short period of time, there was a considerable amount of regular transfers between the plant production job classifications and the over-the-road truckdriving and vice versa, albeit always at the request of the transferee. In addition, there were several "emergency" temporary transfers from job classifications in the plant to over-the-road work. (e) There have been instances when the over-the-road drivers report to or get instructions from Shipping Foreman Winkleman who supervises the local driver and the shipping department employees who load the over-the- road drivers' trucks. And it is Winkleman, rather than Traffic Manager Bandy, who possesses a key to the drivers' box. (f) Over-the-road truckdrivers share in common with the production and maintenance employees such compensato- ry benefits as pensions, vacations, holidays, insurance, and other fringe benefits as well as seniority. (g) Over-the-road truckdrivers are paid the "truck- chauffeur" hourly rate for vacations, holidays and other benefits. (h) The equipment operated by the over-the-road drivers is essentially the same as that operated by the local driver classified as "truck-chauffeur," who admittedly is in the production and maintenance unit. Upon consideration of all the foregoing in the light of the 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established Board unit principles previously set forth, I find that the four over-the-road truckdrivers have a sufficient community of interest with the approximately 350 production and maintenance employees to warrant their inclusion in the comprehensive unit as an accretion thereto. I therefore find that the contracting parties did not engage in any conduct violative of the Act on this aspect of the cases. As the contract was validly applied to the over- the-road drivers, I further find that the conduct of Respondent Local 459 in seeking to enforce the union- security and checkoff provisions thereof also is not unlawful. Moreover, as the complaint against Respondents in Case 14-CB-2341 contains no other allegations of violations of the Act, I will recommend that said complaint be dismissed in its entirety. C. The Independent Violations of Section 8(a)(1) 1. The facts a. As to Personnel Manager Eggemeyer Over-the-road driver Bud Atkinson testified that during his employment interview on May 4, 1971, Eggemeyer discussed the wages and benefits offered by the Company under the contract which had been agreed upon with Local 459, and that during the discussion Eggemeyer stated that if Atkinson went to the Teamsters the Company would just discontinue its trucking operation and go back to common carriers and that the Company would have nothing to do with the Teamsters at the Red Bud plant. Brumley, another over-the-road driver, testified that during his employment interview on May 7, 1971, Eggemeyer stated that the Company did not want the Teamsters in the plant and that, if the drivers elected to go Teamsters, the Company would go back to common carriers. During the period between May 7 and June 7 Atkinson, Biesterfeld, and Brumley were in the plant cafeteria, discussing their wage scale and working conditions. Eggemeyer was called over to their table. Acting as the spokesman for this group of over-the-road drivers, Atkin- son urged upon him the inadequacy of their wage scale and proposed in writing one that would result in more money for the men without any substantial increase in costs to the Company. Atkinson and Brumley testified that in the course of their conversation, Eggemeyer told the men that if they went with the Teamsters the Company would go back to common carriers. Atkinson testified that about May 15, 1971, he met with Eggemeyer and Traffic Manager Bandy and discussed increases in the drivers' mileage rates and allowances. During the course of this discussion, according to Atkin- son's further testimony, Eggemeyer stated that if Atkinson tried to get the Teamsters in, the Company would go back to common carriers, that they had a contract with the Sheet Metal Workers [Local 459] and that was the contract they were going by. Atkinson testified that during the course of his discharge interview on July 8, 1971, he talked to Eggemeyer about Teamster wages, grievance procedures and seniority. He further testified that Eggemeyer told him that the Compa- ny would have nothing to do with the Teamsters, that Singer did not want the Teamsters and wanted to stay with what it had and that if the Teamsters came into the picture the Company would go back to common carriers. Brumley testified that on September 12, 1971, Atkinson, Wolter, and he were in the plant cafe when Eggemeyer came in and joined them at their request. He further testified that Atkinson then started to talk with Eggemeyer about the rates of pay which the Company's drivers in New York were getting and started figuring out an alternative method of payment which could be used at the Red Bud plant. He further testified that Eggemeyer said if they went Teamsters, he would do away with the trucking operation and put it back to common carrier. Atkinson testified that on this occasion he told Eggemeyer that the men had all signed cards authorizing the Teamsters to represent them, that Eggemeyer retorted he was sick and tired of hearing Atkinson talk about wages and that if he did not stop it Eggemeyer was going to pick up the phone and cancel the contract on the trucks and go back to common carrier, and that Atkinson replied that Eggemeyer had better get on the phone and call the leasing company because the men were going to send in their union cards. Eggemeyer denied that he ever told Atkinson or Brumley or any employee that the Company would discontinue the trucking operation and go back to common carrier if the drivers went Teamsters or brought the Teamsters in as the bargaining agent . I do not credit Eggemeyer's denials. I credit the testimony of Atkinson and Brumley and find that Eggemeyer made the statements attributed to him as hereinabove set forth. b. As to Traffic Manager Bandy During a discussion with Traffic Manager Bandy about the middle of July 1971, Bandy told Atkinson that a leasing company in St. Louis had offered Singer a deal of leasing drivers for so much an hour and that before Singer would go Teamsters it will either go back to common carriers or it will lease drivers. The foregoing is based on the credited and undisputed testimony of Atkinson . Although Bandy testified at the instant trial, he did not deny having made the above statement to Atkinson. c. As to Shipping Foreman Winkleman After ratification of the current contract on May 1, 1971, Winkleman told Alfons Wolter, the local driver, that if the drivers joined the Teamsters, the Company would go back to common carriers. On another occasion when Wolter was talking to Winkleman in the shipping department , Winkle- man said that if they joined the Teamsters the Company would discontinue the truck lines and go to common carriers. During a conversation with Winkleman in the first part of September 1971, Wolter mentioned that he knew two men in the city who had belonged to the Teamsters for 18 years and who only worked until 12:05 and then went home but who were paid for the full 8 hours whereas he (Wolter) was driving a truck all day for $3.54 an hour. Winkleman replied, "it's your choice. If you want to go Teamsters, O.K. They'll discontinue the truck line." The foregoing findings are based on the credited and THE SINGER COMPANY 877 undisputed testimony of Wolter. Although present in the hearing room throughout the trial, Winkleman was not called as a witness. 2. Conclusions Although I have found that the over-the-road drivers were properly part of the production and maintenance unit represented by Local 459 and covered by its current contract with the Company, they nevertheless had the right guaranteed by Section 7 of the Act to join the Teamsters and to try to get the Teamsters to become the employees' bargaining representative at an appropriate time. The statements of Personnel Director Eggemeyer, Traffic Manager Bandy and Shipping Foreman Winkleman, all admitted agents of the Company, were clear threats of discontinuance of their jobs as reprisals for exercising that right. I therefore find that by such conduct, Respondent Company violated Section 8(a)(1) of the Act.3 D. The Discharge of Atkinson Eggemeyer discharged Atkinson on July 8, 1971, believing that he was acting within the contract 60-day probationary period during which an employee could be discharged without recourse to the grievance procedure. Later that afternoon, Atkinson telephoned Eggemeyer and stated that according to his calculations he had already worked 61 days and therefore could not be discharged under the probationary provisions of the contract. Upon checking with Traffic Manager Bandy, Eggemeyer was apprised of the correctness of Atkinson's calculations. Eggemeyer thereupon telephoned Atkinson, told him that he had made a mistake about his probationary period of work, asked him to "forget it ever happened" and "just erase it from your mind," and to report back to work as scheduled. Atkinson returned to work without having lost any time.4 Eggemeyer admitted that he discharged Atkinson on July 8, 1971, because of his frequent complaints about his wage rate and that on at least one occasion Atkinson was acting as spokesman for a group of drivers in this respect. This has reference to the meeting in the plant cafeteria during the period between May 7 and June 7 when Atkinson acted as the spokesman for himself and drivers Brumley and Biesterfeld, as previously found. During the discussion on this occasion, Atkinson told Eggemeyer, among other things, that "we weren't so much in love with the Teamsters union, we were willing to work with what we could get." Eggemeyer also admitted that he entered on Atkinson's employment record the reason for his dis- charge. The crossed-out entry on this document states, in part, `let him go-he was good driver but was not happy with the pay arrangement-too energetic ...." Atkinson credibly testified, without dispute, that during his discharge interview the Teamsters was brought into the discussion only insofar as their contract provided a standard for 3 In view of my findings that the over-the-road truckdrivers were appropriately included as an accretion to the production and maintenance unit and properly represented by Local 459 and covered by the current union-security agreement, I find no violation of Sec 8(a)(l) in additional conduct alleged in the complaint and urged by the General Counsel For example, I find nothing unlawful in Eggemeyer telling the drivers that they comparison with the Company's wages, and that he told Eggemeyer at that time that the drivers were not actively seeking representation by the Teamsters. The complaint alleges, and Respondent Company's answer denies, that Atkinson was discharged because he joined or assisted Teamsters Local 50 or engaged in other union or concerted activities , in violation of Section 8(a)(1) and (3) of the Act. I am not persuaded that the evidence warrants a finding that Atkinson was discharged because he joined or assisted Teamsters Local 50. However, I am convinced and find that it was motivated by his persistent conduct in attempting to get the Company to agree to a more satisfactory wage scale for the over-the-road drivers. Although such conduct was at times a concerted activity, I find that it was not a protected concerted activity because Atkinson was on these occasions bypassing Local 459, the exclusive collective-bargaining representative, in attempt- ing to negotiate changes in the current contract which I have previously found properly covered and was applied to the over-the-road drivers. Indeed, both Eggemeyer and Bandy at times told Atkinson that they could not bargain wtih him individually but that he would have to take such matters up through the plant union. Accordingly, I find that the discharge of Atkinson was not violative of the Act and will recommend dismissal of the complaint in this respect also. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III , above, occurring in connection with the business operations of said Respondent described in section I , above, have a close, intimate, and substantial relation to trade, traffic, and commerce between the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By the conduct of Personnel Manager Eggemeyer, Traffic Manager Bandy and Shipping Foreman Winkle- man in threatening the drivers on a number of occasions with loss of their jobs by discontinuing its over-the-road truckdnving operations and going back to using common carriers to haul all its freight or going to leasing drivers if they joined or selected the Teamsters as their bargaining agent, Respondent Company interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent Company did not engage in any other would have to join Local 459 at the end of 31 days or in Bandy telling Atkinson and other drivers that the plant union was the bargaining agent for the drivers and that they would have to go through the plant union to settle whatever complaints they had 4 The findings in this paragraph are based on a composite of the mutually consistent and undisputed testimony of Eggemeyer and Atkinson 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices alleged in Case 14-CA-6426 but not specifically found herein. 4. Respondent Unions did not engage in any unfair labor practices alleged in Case 14-CB-2341. THE REMEDY Having found that Respondent Company has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]