G. L. Gibbons Trucking Service, Inc.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. L. Gibbons Trucking Service, Inc. and Teamsters Board in F. W. Woolworth Company, 90 NLRB 289, Local Union No. 631, International Brotherhood of together with interest thereon at the rate of 6 percent Teamsters, Chauffeurs, Warehousemen & Helpers per annum (Isis Plumbing & Heating Co., 138 NLRB of America. Cases 31-CA-2817 and 31-CA-2944 716)." October 10, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 21, 1972, Administrative Law Judge 1 Robert L. Piper issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and the General Counsel filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, G. L. Gibbons Trucking Service, Inc., South Point, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as herein modified: Delete paragraph 2(c) and substitute the follow- ing: "(c) Offer LeRoy Mason, Mark Vaughn, Ronnie I. Jenkins, and Brian Fountain each immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from, in the case of Mason, December 28, 1971, as the date of his discharge; in the case of Vaughn December 29, 1971, the date of his discharge; and in the cases of Jenkins and Fountain, January 3, 1972, the date of their unconditional offer to return to work, to the date of the above-required offer of rein- statement by Respondent, less the net earnings of each during said periods (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 1 we agree, for the reasons set forth by the Administrative Law Judge, that Respondent had knowledge of Mason 's union activity, but find additional support for this conclusion from the fact that although Respondent's presi- dent stated that he took no part in the hiring or firing of employees prior to learning of the union activity, which he contended was as a result of the strike, he concededly spoke with Struck concerning Mason's discharge and approved the hiring of a replacement for him a day before the strike began. The Administrative Law Judge erroneously concluded that Vaughn was entitled to backpay only from the date of his unconditional offer to return to work. However, Vaughn was discriminatorily discharged on December 29, 1971, prior to his joining the strike. Vaughn, therefore, is entitled to reim- bursement for backpay from the date of his discharge . Cf. Cone Brothers Contracting Company, 161 NLRB 937. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner : This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard at Las Vegas, Nevada, on April 4 and 5, 1972, pursuant to due notice. The consolidated com- plaint, which was issued on March 15, 1972, upon a charge filed January 18, 1972, and a charge filed February 29, 1972, alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(l), (2), and (3) of the Act by: (1) various specified acts of interference, re- straint, and coercion; (2) dominating and interfering with the formation and administration of, and contributing fi- nancial and other support to, Ash Haulers of Nevada, Inc. (hereinafter called the Ash Haulers), a labor organization; (3) on December 28, 197 1 , 1 discriminatorily discharging Le- Roy Mason; (4) on December 29 discriminatorily dis- charging three named employees because of their union or protected concerted activities, namely, striking; and (5) fail- ing and refusing thereafter to reinstate said employees, al- though the striking employees made an unconditional offer to return to work. Respondent's answer denied the alleged unfair labor practices. The General Counsel and Respon- dent filed briefs. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is an Arizona corporation engaged in trucking services with its principal office and place of busi- ness located in Tucson, Arizona, and with one of its fa- cilities located at South Point, Nevada, where it is engaged in providing ash hauling services pursuant to contract. Dur- ing the past year, Respondent received gross revenues from its ash hauling operation at its South Point facility in excess quarterly basis in the manner established by the 1 All dates hereinafter refer to 1971 unless otherwise indicated. 199 NLRB No. 88 G. L. GIBBONS TRUCKING SERVICE 591 of $50,000, which revenues were derived from services ren- dered to a firm directly engaged in interstate commerce. Respondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Teamsters Local Union No. 631, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America (hereinafter called Local 631) and the Ash Haulers are labor organizations within the meaning of Sec- tion 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues During the latter part of 1970 Respondent commenced its ash hauling services at the South Point generating plant of Southern California Edison (hereinafter called Edison) pursuant to contract with Edison. Edison and its various contractors at the South Point plant employed approxi- mately 1,000 employees, all of whom belonged to various unions, including Local 631. At that time Respondent's work force at its South Point facility consisted of one fore- man and three employees, none of whom were unionized. Their job consisted of hauling from the plant by truck ash generated by Edison and dumping it in adjacent canyons on Edison's property. Respondent's only supervisor was Wil- liam Strunk, the foreman. He was the, son-in-law of G. L. Gibbons, the president of Respondent as well as of Gibbons Enterprises, of which Respondent was a wholly owned sub- sidiary. As a result of considerable pressure from Edison and the unions representing its employees and its contractors' employees, Respondent's three employees, under the guid- ance and leadership of Strunk, decided to form their own union, primarily in order to retain their jobs at the plant site. During August, September, and October they formed the Ash Haulers with the assistance of an attorney, and formal articles of association were filed with the Secretary of State of the State of Nevada. Strunk was one of the three "incor- porators" or organizers of the Ash Haulers and was elected an officer and director. During October Respondent hired two additional employees. Ensuing bargaining negotiations with Respondent were unsuccessful. As a result the four working employees (one was on extended sick leave) decid- ed to seek union representation elsewhere, and one of them secured membership application cards from Local 631 and distributed them at the jobsite to the others. All four signed such cards on December 7 and 8 and delivered them to Local 631.On December 20 Local 631 filed a representation petition with the Board in Los Angeles. On December 28 Respondent fired the employee who had organized the oth- er employees. On December 29 two of the remaining three employees engaged in a strike and they and the dischargee began picketing Respondent's South Point facility at Edison's main gate. The other employee was at home on sick leave that day. On December 29 Respondent dis- charged the two striking employees and the employee who was at home on sick leave. On December 30 that employee joined the picketing. Various negotiations and proposals between Respondent and the four striking and picketing employees ensued. At various times between December 28 and 31, Respondent made various arrangements to secure future replacements for the discharged and striking employ- ees. On January 3, 1972, the two striking employees and the employee discharged on December 29 while on sick leave unconditionally offered to return to work. Respondent re- jected their offer. The issues as framed by the pleadings are: (1) on and after August 29, Respondent's initiating, forming, sponsor- ing, promoting, assisting, dominating, contributing to the support of, and interfering with, the Ash Haulers; (2) on December 28, discharging LeRoy Mason and thereafter failing and refusing to reinstate him because of his union or concerted activities; (3) on December 29, discharging Mark Vaughn, Brian Fountain, and Ron Jenkins, and thereafter failing and refusing to reinstate them, although they made an unconditional offer to return to work on January 3, 1972, because of their union or protected concerted activities, including striking; and (4) interference, restraint, and coer- cion by the aforesaid activities and by (a) threatening em- ployees that future employment was conditioned upon their abandoning support for Local 631; (b) interrogating an em- ployee about his union membership and activities; and (c) informing employees that Respondent would sign a con- tract immediately with the Ash Haulers if the employees withdrew their support from Local 631. The complaint further alleged that the strike was caused and prolonged by Respondent' s unfair labor prac- tices, that Respondent engaged in the alleged discrimina- tion and interference, restraint, and coercion to undermine Local 631 and destroy its majority status, and that because of such alleged unfair labor practices a bargaining order should issue. Respondent's answer affirmatively alleged that the strike was for recognition, that each of the striking employees had voluntarily quit, and that the striking em- ployees were permanently and lawfully replaced. B. Chronology of Events Respondent commenced operation of its ash hauling and other services at the Edison plant in South Point, Ne- vada, in September or October 1970. Until October of 1971 Respondent had only three employees at its South Point ash hauling facility: Dwight Olson, truckdriver, Mark Vaughn, heavy equipment (tractor) operator, and Brian Fountain, ash dumping equipment operator and cleanup man. Respondent's only supervisor at the facility was William Strunk, foreman. During April Respondent was engaged in some additional coal hauling services for Edison at the South Point facility, and G. L. Gibbons, Respondent's pres- ident, was present. Respondent's coal hauling truckdrivers were not members of any union. A representative of Local 631 required Gibbons to have his trucks manned by mem- bers of Local 631. Although Gibbons protested, he capit- ulated, laid off his own drivers, and used members of Local 631 to drive his trucks at that time for a period of 5 or 6 weeks. As previously noted, all of the approximately 1,000 employees of Edison and its contractors at the South Point 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant were union members and the only employees on the entire facility who were not union members were Respondent's three employees. During the summer of 1971 considerable pressure was brought by the various unions representing the other employees at the facility, particularly Local 631, upon Strunk and his employees, particularly Ol- son, the truckdriver, to become unionized. Olson was strongly opposed to Local 631. During July Edison and others brought pressure on Respondent to discharge its three nonunion employees, namely, all of its employees at the facility. As a result Respondent did so, whereupon the three employees filed charges with the Board, and Respon- dent reemployed them approximately 3 days later. Howev- er, Respondent and its employees continued to receive pressure to become unionized. Strunk told the employees that they should become unionized in order not to lose their jobs. Strunk suggested to Olson that it might be feasible for the employees to form their own independent labor organization. The record es- tablishes that Strunk was the instigator of the idea. Strunk contacted Gibbons and he agreed that it would be a good solution. Strunk and Olson then suggested this to the other two employees. All three employees agreed that if possible it would be a good idea in order to retain their jobs. At Gibbons' suggestion, Olson, the senior employee, tried with- out success to secure an attorney to form an independent union. Olson told Strunk that Olson was unable to find an attorney to handle such a matter and Strunk contacted Gib- bons. Gibbons advised Strunk to call Gibbons' attorney to request help in finding a Nevada attorney to set up an independent union. Strunk did so. Gibbons' attorney refer- red him to a Las Vegas law firm, Goodman & Snyder. Strunk relayed this information to Olson who contacted Goodman during late August or early September. Good- man agreed to set up such a labor organization by drafting articles of association under the Nevada law which were filed with the Secretary of State of Nevada as "articles of incorporation." The procedure required three "incorpora- tors" or organizers, called directors, and the organizers and directors were Strunk, Olson and Vaughn. As such on Sep- tember 29 they signed the articles of association of the Ash Haulers. On October 4 at a meeting of said directors they elected Olson president and Strunk secretary-treasurer of the Ash Haulers, its only officers, and adopted an initiation fee of $100 for membership in the Ash Haulers, with dues of $8 per month. The same day the articles of association were filed with the Secretary of State of Nevada who issued a charter to the Ash Haulers. Goodman was appointed resident agent and his office became the Ash Haulers' prin- cipal office. On October 4, Respondent hired LeRoy Mason as cleanup man in place of Fountain, who was out on sick leave. On October 24, Respondent hired Ronnie I. Jenkins as truckdriver to replace Olson, who was hospitalized and remained on sick leave thereafter throughout the incidents herein. On October 29, Respondent laid off Mason because Fountain returned from sick leave and Respondent did not need four employees at the time . On November 3, Respon- dent recalled Mason to his job and thereafter continued with four employees. During September, October, Novem- ber, and December, Respondent engaged in "bargaining negotiations" with the Ash Haulers as the representative of its South Point employees without any agreement being reached. Struck acted as the bargaining representative of the Ash Haulers and dealt directly with Gibbons, who was located at Respondent's principal office in Tucson. Thus the "bargaining" took place between Respondent's president and his son-in-law, its only supervisor at the South Point facility. At the first meeting of the members of the Ash Haulers concerning its bargaining proposals, Strunk sug- gested that they use the contract between Edison and its employees' union as a guide to the type of contract they should seek from Respondent. The member-employees adopted some 20 proposals for improved wages and benefits which Strunk later presented to Gibbons. Gibbons rejected most of the proposals and counterproposed several items. Various proposals and counterproposals continued for sev- eral months into December without agreement. The em- ployees became dissatisfied with the lack of progress and the arrangement, particularly their inability to meet with Gibbons, and wanted him to come to South Point so that they could negotiate directly rather than through Strunk. Sometime during October, Goodman presented the Ash Haulers with a bill for $1000 plus costs for his services in setting up the Ash Haulers and drafting the articles of association. The bill was sent to Olson as president at Bull- head City, Arizona, some 12 miles from the South Point facility, where Strunk and the employees resided. Previously thereto the employees had been concerned about how with their limited income they would be able to pay for the services of an attorney in setting up the Ash Haulers, and Strunk assured them that Respondent would foot the bills. During September and October, Respondent through Strunk advanced Olson $800 for "car rental." The record establishes that Olson used $700 of this "advance" to make payments on account on Goodman's bill. While Goodman's second bill was also sent to Olson on November 3, the subsequent two bills on January 4, 1972, and March 10, 1972, were sent to Strunk. The record establishes that only Strunk and Olson paid the $100 initiation fee to the Ash Haulers. Thus the $800 paid Olson by Strunk from Respondent's funds covered the $700 paid to Goodman and the $100 initiation fee paid by Olson. In late November Mason informed Strunk that Mason was a member of a Teamsters local in Phoenix and asked if he should continue his membership in the Teamsters. Strunk advised him not to do so but to take a withdrawal card because Respondent had no contract with the Team- sters or Local 631. Because of the four working employees' dissatisfaction with the lack of progress in bargaining with Respondent through the Ash Haulers, and their inability to meet directly with Gibbons, they decided it might be pref erable to join an established labor organization. Mason, Vaughn, Fountain, and Jenkins on numerous occasions, while working at the jobsite, discussed the desirability of joining an established union and as a result agreed to have Mason contact Local 63l's steward, who was employed at Edison's South Point plant by one of its contractors. On December 5 Mason did so. On December 6 Local 63l's steward, whom Strunk knew, delivered membership appli- cation cards to Mason while he was working at the jobsite, which he in turn presented to and discussed with his fellow G. L. GIBBONS TRUCKING SERVICE 593 employees Fountain, Jenkins, and Vaughn, during working hours. On December 7 and 8 all four of them signed the cards which the other three returned to Mason on the job- site. During working hours on December 8 Mason delivered the signed cards on the project to Local 631's steward. Strunk admitted that he was present on the jobsite every day and frequently observed Respondent's employees at work every day, which would appear self -evident in view of the limited nature of Respondent's South Point operation and the small number of employees . On December 20 Local 631 filed a representation petition with the Board's regional of- fice in Los Angeles. Either that day or the following day a copy of the petition was air mailed by the Region to Re- spondent at Tucson. On several occasions during November and December, Mason requested Strunk to try Mason as a truckdriver, in order to improve his position from that of cleanup man. On December 22 Strunk agreed to do so and instructed Jenkins to take Mason with him on the truck, teach Mason its operation and observe how Mason was able to drive the truck. Jenkins did so and Mason drove the truck both with and without Jenkins throughout that day . Mason continued to operate the truck the following 2 working days , Decem- ber 23 and December 27. On December 22 Strunk left the South Point facility to spend the Christmas holidays in Tuc- son with Gibbons . During this period they discussed the operations at South Point. Strunk returned to the jobsite on the morning of December 28 at which time Jenkins, whom I credit, informed Strunk that Mason had driven the truck almost all of the time while Strunk was gone, and that Mason had done a good job, his only fault being that he was a little careless, but that that was no problem and that Mason would make Respondent a good truckdriver . Strunk made no comment. Strunk, whom I do not credit unless otherwise corroborated, denied that Jenkins had said that Mason was a good driver and contended that Jenkins had reported that Mason was a poor and careless driver. Al- though Mason worked the entire day of December 28 and was in personal contact with Strunk, Strunk admittedly said nothing to Mason about his alleged poor truckdriving. On the afternoon of December 28, John Knight, the owner of a business in Bullhead City, visited Strunk at the jobsite and observed Mason working . Knight informed Strunk that Mason had injured his back while working for Knight in the past and had cost him a lot of money by bringing suit for Mason's injury. According to Strunk, whom I do not credit, he replied that he was dissatisfied with Mason in any event. Later that day in Bullhead City Strunk talked to Olson who was at home on extended sick leave and allegedly told Olson that Strunk was going to fire Mason because he was worried about Mason claiming a back injury against Respondent and bringing suit. Howev- er, Strunk admitted that he knew all about Mason's prior back injury and litigation before employing him, and that in fact on October 15 had Mason sign a formal release stating that Mason had received a release from his doctor as being fit to work, that Respondent was not responsible for any of his back injuries received prior to his employ- ment, and that he would not at any time bring suit against Respondent for such back injuries. The record fails to estab- lish, and Respondent does not contend, that Mason had any trouble with, or complaints about, his back while working for Respondent. Nevertheless, Strunk claimed that the prin- cipal reason for his discharge of Mason that evening was because of Knight's report concerning Mason's back injury and his litigation against Knight's company . Olson told Strunk that Mason had had a disagreement with a former employer in Bullhead City. Strunk allegedly talked with another friend in Bullhead City, who informed him that Mason had had "trouble" at two other companies where he had worked. Strunk also claimed that he was dissatisfied with Mason's work performance as cleanup man from the outset of his employment in October. About 7 p.m. that evening Strunk called Mason and told him not to report to work the following morning, that he was fired, and that Strunk would give him the reason when he brought his check to him the following morning. Inasmuch as Mason had received no complaints or warn- ings from Strunk whatsoever, he was of the view that his discharge was the result of his organizing activities on the job for Local 631 . Mason called Jenkins and told him what had occurred . Jenkins agreed that the reason for Mason's discharge was probably his distribution of the Local 631 cards on the jobsite. Jenkins called Strunk and asked why he had fired Mason. According to Jenkins, whom I credit, Strunk never told him why Mason was fired . Strunk admit- ted that he did not tell Jenkins about the "information" Strunk had received from Knight , allegedly the principal reason for Mason's discharge . When Strunk asked Jenkins why he had called, Jenkins replied that Strunk would learn the following morning . Jenkins went to Mason's home. The two men decided to picket Respondent's operation the fol- lowing day and prepared picket signs reading : "Union or- ganizer fired by scab Ash Haulers, Gibbons Trucking Co." They agreed to meet the following day at the main gate of the Edison plant at 6 :30 a.m. They did so and started picketing with their signs. A number of union members of one or more of Edison's con- tractors honored and joined the picket line. About 7 a.m., Fountain arrived for work , discussed the situation with Ma- son and Jenkins, agreed that Mason had been fired for his union activities and joined the picket line. Vaughn was at home on sick leave December 28 and December 29. Strunk appeared at the picket line about 8 a.m. and asked the men what was occurring. They showed him the picket signs as quoted above. He asked who their spokesman was and Jen- kins agreed to be. Strunk and Jenkins proceeded in Struck's truck to his office. During the drive in, Strunk told Jenkins that the men should have waited another day because Gib- bons was coming to South Point the next day to negotiate a contract with the Ash Haulers. Jenkins asked Strunk why he had fired Mason. Strunk replied that he would tell him about it sometime. According to Strunk, Jenkins said that the men wanted to see Gibbons that day in order to nego- tiate a contract. Strunk admitted that he asked Jenkins why the employees had gone over to Local 631 , and that Jenkins replied that the Ash Haulers were useless and not doing the employees any good and they wanted to join a union which could accomplish something. Strunk then called Gibbons. Strunk told Jenkins that Gibbons could not be there until the next day and they returned to the picket line. During the drive back to the picket line, Strunk complained about the 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees striking and wondered aloud what he could do about it. Jenkins told Strunk that he knew what he could do about it if he wanted. Strunk in substance replied that he had no alternative but to give the men their final checks. Jenkins and Strunk conceded that they both had reference to discharging or terminating the striking employees. Strunk informed Jenkins that Strunk was going to Bullhead City to get Mason's checks. Jenkins suggested that he pick up the other employees' checks. The checks for the prior week had been mailed from Tucson to Bullhead City. Jenkins in- formed the other employees of his entire conversation with Strunk. As soon as Strunk learned about the picketing, he called Gibbons at his home to inform him of it. According to Gibbons, whom I do not credit unless otherwise corrobo- rated, Strunk said he did not know why the men were strik- ing, although he had just read the picket signs and been told by the strikers, and had a conversation with Jenkins during which Jenkins asked him why he had fired Mason, which Strunk refused to answer. Gibbons called his attorney in Phoenix. Gibbons then went to his office, where for the first time he found in his mail a copy of Local 631's petition from the Board. He again contacted his attorney who advised him that he could hire permanent replacements for the strik- ing employees and could not bargain with the Ash Haulers or anyone else as long as the representation petition of Local 631 was pending before the Board . Strunk was in contact with Gibbons several times on December 29. Later that day Gibbons informed Strunk that Gibbons could not negotiate with the Ash Haulers or the men unless they with- drew their support from Local 631 and Local 631 withdrew its petition from the Board. Strunk admitted that Gibbons mentioned both withdrawal of the cards by the men from Local 631 and Local 631 's withdrawal of its petition. Gib- bons also asked Strunk if he needed any replacements whom Gibbons could immediately fly up. Strunk replied that he did not because Edison was not producing much ash and he needed no additional help at the time. About 11 a.m. Jenkins called Local 631 , informed it of Mason's discharge and the strike activity, and requested support. Local 631 replied that it would look into it and see what it could do to help, which Jenkins reported to the other men. Strunk proceeded to Bullhead City, picked up the checks of all four men for the prior week, and wrote person- al checks for the two days of the current week for all four, including Vaughn, who was at home on sick leave and knew nothing about the strike activity. Struck then went to Vaughn's home. Strunk admittedly interrogated Vaughn about his membership in Local 631 and whether or not he had joined it with the others. Vaughn admitted that he had signed a card for Local 631 and went along with the others in supporting Local 631. Strunk said that he could not see why Vaughn went along with Local 631 since he was a director of the Ash Haulers. Vaughn replied that it was because they had made no progress in bargaining through the Ash Haulers. Although Vaughn was on sick leave and knew nothing about Mason's discharge and the strike be- fore Strunk told him, Strunk gave Vaughn both of his checks, thereby terminating his employment. Strunk returned to the picket line and presented Mason and the two striking employees, Jenkins and Fountain, with two checks each, one for the prior week and one for the two preceding days, thereby terminating their employment as he earlier had advised Jenkins he intended to do. Although Strunk told Mason the evening before that Strunk would tell Mason the reason for his discharge on the morning of De- cember 29, Strunk did not do so. That same day Strunk hired Wendell Hill to replace Mason . Allegedly on Decem- ber 28, prior to the strike, Gibbons entered into an arrange- ment with an employee to report to the jobsite in the future when and if Strunk needed him. There may have been some misunderstanding in the minds of Gibbons and Strunk about the advice of Respondent's attorney, but there is no confusion in the record as to what Strunk told the employees . Strunk had conversations with Jenkins and some of the other men on practically a daily basis from December 29 through January 4, 1972. Strunk repeatedly told the strikers that they could not return to work and that Gibbons would not negotiate with them or the Ash Haulers until they arranged to have Local 63 l's petition withdrawn from the Board. On the evening of December 29, Strunk told Jenkins that Gibbons was sorry that he had not gotten to South Point earlier and would like to have the employees have Local 631 withdraw its petition and that he then would negotiate a contract with them. Jenkins reported this statement to the other employ- ees. On the morning of December 30 Vaughn joined the others on the picket line after informing them that he had been terminated at home by Strunk the previous day, and after the strikers informed Vaughn about their picketing because of Mason's discharge. At this point all of the em- ployees except Olson, who was on extended sick leave, were picketing. That morning, Jenkins again called Local 631, and was advised that it could not sanction the strike and could do nothing to help the employees until it had a ruling from the Board. This resulted in dissatisfaction with Local 631 among the employees. Around noon that day Jenkins and Fountain had two conversations with Strunk during which they advised him all of the men were willing to come back to work if they could get a contract signed by Gibbons and if they could all return, including Mason. Strunk replied that they could return to work but Mason could not. Foun- tain answered that they would not return unless they all returned. Fountain asked Strunk why he fired Mason and Strunk refused to reply, stating that he had his own reasons and maybe someday he would tell them. The record estab- lishes that from the outset Strunk knew that the employees were striking because of his discharge of Mason, in their view because of his union activities . On the evening of De- cember 30 Strunk called Jenkins again, told him that Strunk had spoken with Gibbons and that he would be glad to have them all except Mason come back to work if they would have Local 63l's petition withdrawn from the Board. Jen- kins replied that they might be able to work something out if they could get some of the benefits they had previously requested, including backpay for holidays they had worked, paid vacations and certain hospitalization benefits. On the evening of December 30 Strunk visited Fountain at his home and told him that if the employees would have Local 631 withdraw its petition Gibbons would negotiate a con- tract with the Ash Haulers and the men could return to G. L. GIBBONS TRUCKING SERVICE 595 work. Strunk further informed Fountain that he should de- cide whether to stick with Local 631 or go with the Ash Haulers. The picketing continued through December 30 and 31. On the 31st, the men ,stopped picketing about 2 p.m. There was no picketing thereafter . On the 31st, Jenkins and Mason talked with Strunk and told him the employees would be willing to negotiate a contract with Gibbons through the Ash Haulers .if Gibbons would agree to some of the de- mands the employees had made. Strunk called Jenkins that evening and said that if the strikers would arrange to have Local 63 l's petition withdrawn Gibbons would be willing to negotiate a contract with them or the Ash Haulers and that they could return to work . Jenkins again repeated what the men wanted and Strunk agreed that their requests were good negotiable items . Strunk told Jenkins that all of the men except Mason had a job as long as they wanted one and Strunk wanted them to come back to work . Jenkins replied that before the men had Local 631 withdraw its petition they would have to have some assurance that Gibbons would definitely negotiate and sign a contract . During all of the conversations between Jenkins and Strunk it was always the position of the employees that they would not return to work unless all four, including Mason, returned. There were many conversations back and forth between Jenkins and Strunk because Strunk always had to check with Gibbons before Strunk could reply to Jenkins' various proposals. On January 1, 1972, Jenkins and Mason had another conversation with Strunk at the plant . Jenkins told Strunk that on Monday, January 3, 1972, the employees would go to Local 631 in Las Vegas to get the petition withdrawn if he would agree to some of their previously expressed de- mands such as higher wages, medical insurance and the payment of a portion of Olson's hospital bill. On the evening of January 1 Strunk visited Vaughn at his home and told him that if the employees had Local 631 withdraw its peti- tion Strunk could put them back to work and that if they didn't return to work Gibbons would replace them and even if Local 631 won the election the replacements would re- main and the striking employees would be out of jobs. The record establishes that Strunk solicited each of the employ- ees individually, except Mason, to have Local 631 withdraw its petition, in which event Strunk would return them to work and Respondent would negotiate a contract with the Ash Haulers. That evening Strunk called Jenkins and said that Gibbons was willing to negotiate all of the employees' demands as long as they got Local 631 to withdraw its petition. Strunk repeated that he wanted the employees to return to work as soon as possible . When Jenkins advised him that they were going to Local 631 in Las Vegas on Monday to try to get the petition withdrawn, Strunk replied that if they went early in the morning they should be back about noon and be able to work that afternoon if they had the petition withdrawn . On and after December 30, it is apparent that the strikers were willing to negotiate through the Ash Haulers once again, having become dissatisfied with Local 631's refusal to support them, and that Respon- dent was willing to do so and have them return to work if they could get Local 631 to withdraw its petition. The same situation prevailed on December 31 and January 1, when Jenkins and the striking employees agreed to visit Local 631 on January 3 to try to get its petition withdrawn. The four employees went to Local 63 l's office on Mon- day morning, January 3, and requested it to withdraw its petition. Local 631 refused. Local 63 l's business agent then prepared an unconditional offer to return to work for Jen- kins, Vaughn, and Fountain. The offer they signed was addressed to Gibbons Trucking Company and read: "The undersigned unconditionally hereby offer to return to work." It was dated January 3 and signed by all three. Local 631's agent instructed them to deliver it to Strunk and un- conditionally offer to return to work. He advised them that such was not needed in Mason's case, because he had been discharged and his situation was legally different than that of the strikers. That evening the employees delivered their signed unconditional offer to return to work to Strunk, but he refused to permit their return to work unless and until they had Local 631 withdraw its petition. They advised him that Local 631 was unwilling to withdraw its petition. Strunk then called Gibbons, who said that he did not believe that Local 631 had tried to withdraw its petition from the Board that day because January 3 was a Federal holiday and the Board's office was not open . Later that evening Strunk called Jenkins and relayed this statement to him. The record establishes that as of that time Gibbons and Strunk were still trying to get the employees other than Mason to return to work, upon the condition that they had Local 631 withdraw its petition from the Board. On January 4, 1972, Strunk called Jenkins again and asked him if he thought it would do any good to have Respondent's lawyer "shake up" Local 631 to try to get it to withdraw the peti- tion. Strunk concluded the conversation by stating "I guess it is going to wind up in court." This was the last contact between Strunk and the striking employees. According to Gibbons, whom I do not credit unless otherwise corroborated, his attorney advised him to replace the striking employees immediately. According to Gibbons, he hired replacements for all the striking employees between December 28 and December 31, although the record estab- lishes that such employees were not in fact hired but only that arrangements were made between them and Gibbons for them to report to work at the South Point jobsite when and if Strunk needed them in the event the strikers did not return to work. On December 28, before the strike com- menced and anyone knew anything about it, Gibbons en- tered into an arrangement with David L. Drake to report in the future when and if Strunk needed him. Apparently Gib- bons made his arrangement with Drake in order to replace Mason, because Gibbons' Tucson foreman had advised Gibbons that day that Strunk had terminated one of the South Point employees. However on December 29 Strunk hired Hill to replace Mason. On December 29 Gibbons entered into a similar arrangement with two other men, Daniel Kirnerk and Michael Bates, the latter already em- ployed by Gibbons at another location, to report to Strunk at the South Point jobsite at a later date when and if he needed them. On December 30 or 31, Gibbons entered into a like arrangement with a former employee for future re- porting to Strunk when and if needed . Respondent contend- ed that it had thus hired permanent replacements for all of the striking employees before January 3, 1972, the date of their unconditional offer to return to work. However, the 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record establishes that Respondent had not in fact hired any replacements but had merely entered into arrangements for their future employment in the event that the strikers did not return to work, and that at all times to and including January 4, 1972, made clear to the discharged and striking employees, except Mason, that it wanted them to return to work as soon as possible when and if they had Local 631 withdraw its petition from the Board. Contrary to the testi- mony of Gibbons that he had hired "permanent replace- ments," Strunk admitted that at all times to and including January 4 he wanted the strikers to return to work and was willing to have them do so if they could get Local 631 to withdraw its petition, patently an admission that they had not been permanently replaced. Strunk admitted that prior to January 4 Gibbons never told him that the striking em- ployees had been replaced. Strunk admittedly knew that Gibbons had "replacements" available when and if needed if the strikers could not return to work, i.e., were unable to persuade Local 631 to withdraw its petition. At all times from the first day of the strike Gibbons advised Strunk that he was "covered" by help which Gib- bons could furnish whenever needed, and Strunk consis- tently informed the striking employees that he wanted them to return to work as soon as possible and would accept them at any time if they could get Local 631 to withdraw its petition from the Board. Strunk understood the distinction. He testified that as of January 3, 1972 and prior thereto he had not been advised that the striking employees had been replaced, but that he had been advised that he was "cov- ered," which he understood meant that Gibbons had men available to replace the striking employees when and if they failed to return to work. None of the so-called replacements reported for work at the plant until January 7, 1972, after it was clear that Local 631 would not withdraw its petition. Respondent hired the four "replacements," thus, including Hill, increasing its work force by one as of January 7, 1972, because no further negotiations occurred between Strunk and the discharged and striking employees and none of them were permitted to return to work. Gibbons admitted that he informed Strunk that the men could return to work as long as they met his condition of having Local 631 with- draw its petition. The record establishes and I find that at all times Gibbons and Strunk were willing to negotiate with the men individually or as the Ash Haulers and return them to work, provided that they arranged to have Local 631 withdraw its petition from the Board. On January 6, 1972, after all the incidents herein, Strunk finally told Mason at the latter'sinsistence that he had been discharged because of his unsatisfactory work and because of Strunk's conver- sation with Knight about Mason's prior back injury and litigation. C. Domination and Interference with the Formation and Administration of, and Financial and Other Support to, the Ash Haulers The complaint alleged that on and after August 29, Respondent through Strunk initiated, formed, sponsored and promoted the Ash Haulers, and assisted, dominated, contributed to the support of, and interfered with, the ad- ministration of the Ash Haulers. As hereinabove found, after Respondent's problems at South Point because its em- ployees were not unionized, Strunk, with the approval of Gibbons, suggested to the employees that they form an independent union. Strunk informed the employees that the organization of an independent union would be a good idea in order to prevent their loss of employment. The record establishes that Strunk not only suggested but also initiated, organized, and led the employees in the creation of the Ash Haulers. He made the original suggestion to Olson and they in turn persuaded the other two employees then employed. When the employees were unable to secure an attorney to set up such an organization, Strunk, with the assistance of Gibbons, referred them to an attorney in Las Vegas who set up the Ash Haulers. Strunk was one of its three organizers and directors and one of its two officers. When the members indicated their inability to pay the attorney's fees of more than $1,000 for organizing the Ash Haulers, Strunk assured them that Respondent would take care of it. Thereafter Respondent advanced Olson the money to pay most of such fees. None of such fee was paid by any of the members. In addition, only Strunk and Olson paid the required initiation fee and Olson's payment was effectively refunded to him by Respondent. At the first meeting of the Ash Haulers con- cerning contract proposals to Respondent, Strunk was the leader and furnished a form of contract which he suggested that the members follow. Strunk handled all of the subse- quent negotiations with Gibbons for the Ash Haulers. Strunk led and actively participated in all of the meetings at which the members considered their proposals and Respondent's counterproposals. During the period after the strike began and Respondent was aware of Local 63 l's peti- tion to the Board, Respondent consistently made clear to the employees that it would bargain with and enter into a contract with the Ash Haulers if the striking employees could get Local 631 to withdraw its petition. Strunk contin- ued as secretary-treasurer of the Ash Haulers until after the events herein. Thus the record establishes and I find that Respondent initiated, organized, dominated, interfered with, and contributed financial and other support to, the Ash Haulers, thereby dominating and interfering with the formation and administration of, and contributing financial and other support to, the Ash Haulers in violation of Sec- tion 8(a)(2) and (1) of the Act. D. Interference, Restraint, and Coercion The complaint alleged that on or about December 29 Respondent by Strunk threatened an employee that future employment and a guarantee of future employment was conditioned upon the employees' abandoning their support for Local 631. As hereinabove found on December 29 Strunk, after telling Jenkins that Strunk wished the strikers had waited one more day because Gibbons was planning to come up and sign a contract with the Ash Haulers the following day, and refusing to tell Jenkins why Strunk had fired Mason, on their drive back to the picket line after learning about the employees joining Local 631, com- plained about the employees striking and wondered aloud what he could do about it. Jenkins replied that Strunk knew what he could do about it if he wanted. Strunk then said that he had no alternative but to give the men their final checks. G. L. GIBBONS TRUCKING SERVICE 597 Both men conceded that they had reference to Strunk's terminating the employees. Clearly this constituted a threat by Strunk to terminate the strikers because of their concert- ed activity to protest Mason's discharge and/or their trans- fer of allegiance to Local 631. Later the same day Strunk carried out his threat by terminating not only the strikers but also Vaughn. I conclude and find that such threat con- stituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. The complaint alleged that on or about December 29 Respondent by Strunk interrogated a unit employee at his home concerning whether he had signed a card for Local 631. This allegation had reference to Strunk's conversation with Vaughn on the morning of December 29 at his home when Strunk admittedly interrogated Vaughn as to whether he had signed an authorization card for Local 631 and was in accord with the other employees in their support of Local 631, both of which Vaughn admitted. Until Strunk told him, Vaughn knew nothing about Mason's discharge or the ensu- ing strike. After ascertaining that Vaughn had joined Local 631 and was in accord with the other employees in support- ing it, Strunk terminated Vaughn by giving him his final check. I conclude and find that the aforesaid interrogation, accompanied by Strunk's complaint concerning Vaughn's decision to support Local 631 while he was a director of the Ash Haulers, constituted interference, restraint, and coer- cion in violation of Section 8(a)(1) of the Act. The complaint alleged that between December 29 and January 2, 1972, Respondent by Strunk at the South Point facility told its employees that Respondent would sign a contract immediately with the Ash Haulers if the employees would withdraw their support from Local 631. As herein- above found, Strunk made such statements to various of the employees during that period of time. During their first conversation on December 29 when Jenkins acted as spokesman for the three picketing employees, Strunk stated that he wished the -employees had not struck that day be- cause Gibbons was planning to come up the following day and sign a contract with the Ash Haulers. That evening Strunk, after talking with Gibbons several times, told Jen- kins that Gibbons wanted the employees to persuade Local 631 to withdraw its petition and that he would then nego- tiate a contract with them. All of Strunk's statements to Jenkins were reported by him to the other employees. Again on the evening of December 30 Strunk told Jen- kins that he had talked to Gibbons, who would be glad to have all of the men except Mason return to work if they would have Local 631's petition withdrawn from the Board. This was after Local 631 had informed the employees that it would not sanction their strike or assist them. Jenkins replied that they might be able to work something out if Respondent would grant some of the benefits the employees had been requesting. Again on the evening of December 31 Strunk told Jenkins that if the strikers could arrange to have Local 631's petition withdrawn Gibbons would negotiate a contract with them and they could all return to work. Strunk also told Jenkins that the contractual requests of the men were good negotiable items, that Strunk wanted them to come back to work and that they would all, except Mason, have a job as long as they wanted. During all of these conversations Strunk made clear that Respondent would negotiate and sign a contract with the Ash Haulers for the men if they withdrew their support from Local 631 and persuaded it to withdraw its petition. As a result all four employees did try to persuade Local 631 to withdraw its petition. On the evening of January 1 Strunk again told Jenkins that Gibbons was willing to negotiate all of the employees' demands as long as they got Local 631 to withdraw its petition, and that Strunk wanted them to return to work as soon as possible. When Jenkins informed Strunk that on Monday they were going to Las Vegas to seek the withdraw- al of the petition Strunk replied that if they were successful they could return to work that afternoon. The record estab- lishes and I find that Strunk -repeatedly told the employees that Respondent would negotiate and sign a contract with the Ash Haulers on their behalf if they would withdraw their support from Local 631 and persuade it to withdraw its petition, thereby interfering with, restraining, and coercing its employees in violation of Section 8(a)(1) of the Act. Moreover during these same conversations Strunk also made clear that the employees would not be reinstated to their positions unless they persuaded Local 631 to withdraw its petition, thus coupling a threat of reprisal with a promise of benefit. E. Discrimination in Hire or Tenure, Terms or Conditions of Employment 1. The discharge of Mason The complaint alleged that on or about December 28 Respondent discharged Mason and since that date failed and refused to reinstate him because of his union or concert- ed activities. Mason was hired by Strunk on October 4 as the cleanup man to replace Fountain, who was on extended sick leave. The day before, Strunk informed Mason of the existence of the Ash Haulers. On October 29, because of Fountain's return, Mason was laid off but was recalled to work on November 3. Respondent's entire complement at South Point consisted of only four employees. Mason's job duties were limited to a confined area where the ashes were dumped from Edison's bins into Respondent's truck. As hereinabove found, Strunk was present at this jobsite ev- eryday and regularly observed the men, including Mason, as they worked. In the latter part of November Strunk ad- vised Mason to withdraw his membership in a Teamsters local in Phoenix because it would serve no purpose to con- tinue it inasmuch as Respondent had no contract with the Teamsters, including Local 631. As a result of the employ- ees' dissatisfaction with the Ash Haulers and the progress of negotiations, they frequently discussed among them- selves at the jobsite the desirability of seeking other union representation. These conversations went on for some time and in all probability were overheard by Strunk. On December 5 the employees agreed to try to join Local 631 and requested Mason to contact its steward on the project site. Mason did so. On December 6 Local 631's job steward, well known by Strunk, delivered to Mason at his jobsite while working membership application cards to 2 N.L.R.B. v Exchange Parts Co., 375 U.S. 405 ( 1964), and Great Plains Steel Corp, 183 NLRB No 96 (1970). 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be signed by the employees. Mason delivered these cards to the others while working at the jobsite. The following day the others returned the signed cards to Mason while work- ing at the jobsite. Mason then delivered the four signed cards to Local 63 I's steward. All of this occurred within the confines of the project and substantially all at the jobsite where Strunk was regularly present. The size of the unit and the work site make it extremely improbable that Strunk would not have been aware of these activities. He knew Local 63 l's job steward from his prior contact and knew that Mason had been a member of another local of the Teamsters. Under the circumstances, I conclude and find that Respondent through Strunk was aware of Mason's ac- tivities on behalf of Local 631. The General Counsel also argues that Respondent must have received Local 63l's petition on or before December 28, inasmuch as it was air mailed from Los Angeles to Tucson on December 20 or 21. However, Gibbons testified unequivocally that he did not receive the petition in the mail until the morning of Decem- ber 29 after the strike had started. While it seems unlikely, in view of the Christmas mail rush it is not impossible, that .the petition was not delivered through the mail to Respondent's Tucson office until December 29, and I con- clude and find that the General Counsel has failed to sus- tain his burden of proof with respect to that contention. On December 22, Strunk's last day at the jobsite before his Christmas holiday, Strunk promoted Mason to truckdn- ver. Strunk directed Jenkins to instruct Mason and check him out on the job. Mason drove the truck on December 22, 23, and 27, the 3 following workdays. Upon Strunk's return to the job on the morning of December 28, Jenkins advised him that Mason had done a good job driving the truck and would make Respondent a good truckdriver. Although Strunk was in personal contact with Mason that day, Strunk made no statements to him. Allegedly as the result of a conversation with Knight that morning, plus conversations with Olson and Hill that afternoon, Strunk decided to fire Mason that evening, primarily because of the "information" he had obtained from Knight. The record establishes that all of Respondent's reasons for discharging Mason were not only without merit but contrary to fact. Thus Strunk testi- fied that his principal reason for discharging Mason was because Knight had informed him that day that Mason had injured his back while working for Knight and had cost Knight considerable money by bringing suit for such injury. However, Strunk admitted that he was fully aware of Mason's back injury and the litigation before employing him, and in fact had Mason sign a release agreeing never to sue Respondent for any back injuries occurred prior to his employment by Respondent. Moreover the record estab- lishes that Mason had no complaints about his back while employed by Respondent. Thus Strunk's principal reason, i.e., concern about possible litigation by Mason against Re- spondent for such injury, was proven to be without sub- stance. An additional reason advanced by Strunk was dissatis- faction with Mason's work performance from the outset of his employment in October. The record demonstrates the contrary. On October 29 Strunk laid Mason off because of the return of Fountain, yet on November 3 when Strunk needed additional help he reemployed Mason, thus demon- strating Strunk's satisfaction with Mason's performance to that date. As a result of Mason's requests, on December 22 Strunk decided to promote Mason to truckdriver and had Jenkins instruct him and check him out. This further evi- denced Strunk's satisfaction with Mason's prior perfor- mance. Contrary to the credited testimony of Jenkins, Strunk advanced as an additional reason for Mason's dis- charge the claim that Jenkins had reported that Mason was a poor and careless truckdriver. As hereinabove found, Jen- kins reported to Strunk that Mason was a good truckdriver. During Strunk's Christmas holiday visit with Gibbons, they discussed the affairs of the Ash Haulers and Respondent's operation at South Point. Immediately after Strunk's return to the job, he fired Mason without any warn- mg, allegedly for the above reasons which have been found to be without merit. In addition, Strunk refused to tell Ma- son why he was fired, and that evening and on succeeding days refused to tell Jenkins and Fountain why Mason had been fired, although Respondent was confronted with a strike of all of its employees because of Mason's discharge. During the ensuing discussions with the strikers, Strunk consistently refused to consider Mason's reinstatement, al- though he was never able to advance a reason. The record establishes Respondent's animosity towards Local 631 as the result of its contact with Gibbons in April and its subse- quent contacts with Strunk and Olson during the summer of 1971. A preponderance of the reliable, probative, and sub- stantial evidence in the entire record convinces me, and I find, that Respondent's alleged reasons for discharging Strunk were pretextual, and that its real reason was his organizing activities on behalf of Local 631, thereby dis- criminating against him in violation of Section 8(a)(3) and (1) of the Act. 2. The discharge of Vaughn The complaint alleged that on or about December 29 Respondent discharged Vaughn and thereafter failed and refused to reinstate him because of his union activities and/ or because he had joined the strike. As hereinabove found Vaughn was at home on sick leave on December 29, the day the strike commenced. After the above-found conversation with Jenkins, Strunk went to Bullhead City, secured the prior week's checks for all four employees, and wrote per- sonal termination checks for all four, including Vaughn. Strunk then went to Vaughn's home, informed him of Mason's discharge and the strike, of which Vaughn was not previously aware, and interrogated him about his member- ship in Local 631 and whether he agreed with the other employees in supporting Local 631. After Vaughn admitted that he had signed an authorization and membership card and was in sympathy with the others in supporting Local 631, Strunk criticized him for not remaining loyal to the Ash Haulers and presented him with his final check, thereby terminating him. The following morning Vaughn joined the others in picketing, after he had informed them of his dis- charge and they had informed him of the purpose of the strike. The record clearly establishes, and I find, that Strunk terminated Vaughn because of his admitted membership in Local 631 and his support of Local 631 with the other em- G. L. GIBBONS TRUCKING SERVICE ployees, thereby discriminating against him in violation of Section 8(a)(3) and (1) of the Act. 3. The discharge of the strikers, Jenkins and Fountain The complaint alleged that on or about December 29 Respondent discharged Vaughn, Fountain, and Jenkins be- cause they had joined the strike and/or because of their union activities, and thereafter refused to reinstate said em- ployees to their former or substantially equivalent positions although on January 3, 1972, they made an unconditional offer to return to work. On December 29 three employees, Mason, Jenkins, and Fountain, were picketing. On Decem- ber 30 Vaughn joined the picketing. As hereinabove found, Mason was discriminatorily discharged on December 28 and Vaughn on December 29, and hence neither of them were strikers within the meaning of the Act, inasmuch as they were not in a position to voluntarily withhold their services. Both joined the picketing and apparently the Gen- eral Counsel, as well as Local 631 as demonstrated by its preparation of Vaughn's unconditional offer to return to work, mistakenly viewed Vaughn as one of the striking em- ployees. It is well settled that a discnminatonly discharged employee is not required to make an unconditional offer to return to work but on the contrary his employer is required to offer him reinstatement to his former or substantially equivalent position, whereas striking employees, whether economic or unfair labor practice strikers, must make such an unconditional offer to return to work before their em- ployer is required to reinstate them. However, a discrimina- torily discharged employee who subsequently joins a going strike is not entitled to backpay until his strike activity terminates. After discharging Vaughn on the morning of Decem- ber 29, Strunk proceeded to the picket line and, as he had earlier threatened, terminated the striking employees, Jen- kins and Fountain, by presenting them their final checks. At the same time Strunk gave Mason his final check. As herein- above noted, Respondent contended that the strike was for recognition, that the striking employees voluntarily quit, and that Respondent had permanently and lawfully re- placed them. The record contains no evidence that the strike was for recognition, nor is there any evidence that the strik- ing employees voluntarily quit their employment, which Re- spondent concedes. On the contrary the record clearly establishes that from the outset the strike was in protest of Mason's discharge. A consideration of the entire record establishes, and I find, that Respondent discharged the striking employees, Jenkins and Fountain, because of their protected concerted activity, striking, and because of their membership in Local 631, thereby discriminating against them in violation of Section 8(a)(3) and (1) of the Act. On January 3, 1972, Fountain, Jenkins, and Vaughn presented Respondent with a written unconditional offer to return to work, which Respondent rejected and refused un- less they could persuade Local 631 to withdraw its petition. Because Vaughn had joined the strike after his discriminato- ry discharge, this also constituted notice to Respondent that he was abandoning his strike activities and available for immediate reinstatement. Inasmuch as I have found that Mason's discharge was discriminatory and the strike was in 599 protest thereof, it follows, and I find, that from its inception the strike was an unfair labor practice strike. Assuming arguendo that Mason's discharge was not discriminatory, the discriminatory discharge of Vaughn and/or the subse- quent discriminatory discharges of the strikers would have converted the strike to an unfair labor strike and tended to prolong it. It is well settled that unfair labor practice strikers are entitled to immediate reinstatement upon their uncondi- tional offer to return to work regardless of the employment of replacements? It follows and I find that Respondent's refusal to reinstate the unfair labor practice strikers, Jenkins and Fountain, upon their unconditional offer to return to work constituted further discrimination against them in vio- lation of Section 8(a)(3) and (1) of the Act. Assuming arguendo that the strike was an economic strike, it is well settled that such strikers are entitled to reinstatement to their former positions upon their uncondi- tional offer to return absent the employment of permanent replacements and other considerations not pertinent herein. As hereinabove found, the record establishes that Respon- dent had not hired permanent replacements for the striking employees, but had consistently, from the time of the strike until after their unconditional offer to return to work, made clear at all times that Respondent wanted them to return to work and was willing to accept their return provided they were able to persuade Local 631 to withdraw its petition from the Board. Accordingly, even if they are assumed to have been economic strikers, I conclude and find that Respondent's refusal to reinstate them upon their uncondi- tional offer to return to work constituted discrimination in violation of Section 8(a)(3) and (1) of the Act. F. Additional Issues The complaint also alleged that Respondent engaged in the above-found acts of interference, restraint, and coer- cion, domination of, interference with and assistance to the Ash Haulers, and discriminatory discharges and refusals to reinstate, for the purpose of undermining Local 631 and destroying its majority status in order to evade Respondent's obligation to bargain with Local 631. As found above, Respondent threatened its employees with discharge for engaging in a strike and for supporting Local 631, interrogated an employee concerning his union activi- ties and membership, informed the employees that Respon- dent would sign a contract with the Ash Haulers if they would withdraw their support from Local 631 and persuade it to withdraw its petition, dominated and interfered with the formation and administration of the Ash Haulers and contributed financial and other support to it, discriminato- rily discharged Mason and Vaughn, discriminatorily dis- charged employees for engaging in a strike, and discriminatorily refused to reinstate such strikers upon their unconditional offer to return to work. The record estab- lishes, and I find, that Respondent engaged in such unfair labor practices for the purpose of destroying Local 631's majority status and thereby evading Respondent's obliga- tion to bargain with it. The complaint alleged, Respondent admits and I find 3 Mastro Plastics Corp, 350 U S 270 ( 1956). 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following to be a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All ash haulers employed by Respondent at its facility at South Point, Nevada, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The complaint further alleged that, to remedy the above-found unfair labor practices under the above-found circumstances, an order should issue requiring Respondent to recognize and bargain with Local 631 as the exclusive bargaining representative of the employees in the aforesaid appropriate unit. As hereinabove found, on December 7 and 8 four of the five employees in the appropriate unit signed unambigu- ous authorization cards as well as applications for member- ship and delivered them to Local 631, all of which cards were properly authenticated and received in the record. I conclude and find, as alleged in the complaint but denied by Respondent, that on December 8, Local 631 was desig- nated by a majority of the employees in the appropriate unit as their bargaining representative and was then and there- after the exclusive bargaining representative of the employ- ees in the aforesaid appropriate unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action as pro- vided in the Order recommended below, which I find neces- sary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Although the complaint did not allege a refusal to bargain, and none is found, Respondent, as alleged and hereinabove found, engaged in the above-found unfair labor practices for the purpose of destroying Local 631's majority status and there- by evading Respondent's obligation to bargain collectively with it. As further alleged in the complaint, it is now well settled that under such circumstances a bargaining order is warranted and indeed required as the only effective remedy available." Accordingly, I shall recommend a bargaining order. Because it has been found that Respondent dominat- ed, interfered with, and assisted the Ash Haulers, I shall recommend that Respondent completely disestablish the Ash Haulers. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease and desist order.5 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: 1. Respondent is an employer engaged in commerce, and Local 631 and the Ash Haulers are labor organizations, within the meaning of the Act. 2. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By dominating and interfering with the formation and administration of the Ash Haulers, and contributing financial and other support to it, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 4. By discharging Mason and Vaughn because of their union activities, by discharging Jenkins and Fountain be- cause of their concerted activity, striking, and their union activities, and by refusing to reinstate Jenkins, Fountain, and Vaughn upon their unconditional offer to return to work because of their concerted and union activities, Re- spondent engaged in discrimination to discourage member- ship in Local 631 and participation in protected concerted activities, thereby engaging in unfair practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All ash haulers employed by Respondent at its fa- cility at South Point, Nevada, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times on and after December 8, Local 631 has been and now is the exclusive representative for the pur- poses of collective bargaining of the employees in the above unit within the meaning of Section 9(a) of the Act. 7. The aforesaid unfair labor practices affect commerce ORDER6 G. L. Gibbons Trucking Service, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or refusal of future employment because of their union or protected con- certed activities, including striking. (b) Interrogating coercively its employees concerning their union activities or membership. (c) Telling employees that it will negotiate or enter into a contract with another labor organization if they will with- draw their support from their chosen labor organization or persuade such labor organization to withdraw its represen- tation petition filed with the National Labor Relations Board. (d) Threatening striking employees that they will not be reinstated to their fromer positions unless they persuade their chosen labor organization to withdraw its representa- tion petition filed with the National Labor Relations Board. (e) Dominating or interfering with the administration or formation of the Ash Haulers of Nevada, Inc., or any 4 N L.R B v Gissel Packing Co, Inc., 395 U.S. 575 (1969); and Great Plains Steel Corp, 183 NLRB No. 96 (1970). 5 N.L.R.B. v. Express Publishing Company, 312 U.S 426 (1941); N.L.R.B. v. Entwh,stle Mfg Co, 120 F 2d 532 (C A. 4, 1941); Consolidated Industries, Inc., 108 NLRB 60 (1954), and cases cited therein. 6 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. G. L. GIBBONS TRUCKING SERVICE other labor organization of its employees, or contributing financial or other support to said Ash Haulers or any other labor organization of its employees. (f) Recognizing, or in any manner dealing with, said Ash Haulers, or any reorganization or successor thereof, as a representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of work or any other terms and conditions of employment. (g) Discouraging membership in Teamsters Local Un- ion No. 631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees, by discharging employees because of their union or protected concerted activities, including striking, or by failing and refusing to reinstate unfair labor practice strikers to their former or substantially equivalent positions after their unconditional offer to return to work, or in any other manner discriminat- ing against employees in regard to hire or tenure of employ- ment or any term or condition of employment. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Withdraw all recognition from said Ash Haulers as a representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of work, or any other terms and conditions of employment, and completely disestablish said Ash Haulers as such representative. (b) Upon request, bargain collectively with the afore- said Local 631 as the exclusive representative of its employ- ees in the appropriate unit found herein with respect to rates of pay, wages, hours, and all other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Offer LeRoy Mason, Mark Vaughn, Ronnie I. Jen- kins and Brian Fountain each immediate and full rein- statement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from, in the case of Mason, Decem- ber 28, 1971, the date of his discharge, and in the cases of Vaughn, Jenkins, and Fountain, January 3, 1972, the date of their unconditional offer to return to work, to the date of the above-required offer of reinstatement by Respon- dent, less the net earnings of each during said periods (Cros- set Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with the interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (d) Immediately notify the above-named employees if presently serving in the Armed Forces of the United States of their 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. 601 (e) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to determine the amount of backpay due under this Order. (f) Post at its office in Tucson, Arizona and its facility in South Point, Nevada copies of the attached notice mark- ed "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative shall be posted by Respondent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced or covered by any other material. (g) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of receipt of this Decision what steps Respondent has taken to comply herewith.8 7 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." 8 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 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Teamsters Local Union No. 631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of our em- ployees, by discharging employees because of their un- ion or protected concerted activities, including striking, or by failing and refusing to reinstate unfair labor prac- tice strikers to their former or substantially equivalent positions after their unconditional offer to return to work, or in any other manner discriminating against our employees in regard to hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT dominate or interfere with the forma- tion or administration of, or contribute financial or other support to, any labor organization of our employ- ees. WE WILL NOT recognize, or in any manner deal with, the Ash Haulers of Nevada, Inc., or any reorganization or successor thereof, as a representative of any of our employees for the purpose of dealing with us concern- ing grievances, labor disputes, wages, rates of pay, hours of work or any other terms and conditions of employment. WE WILL NOT threaten our employees with dis- 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge or refusal of future employment because of their union or protected concerted activities, including strik- ing. WE WILL NOT coercively interrogate our employees concerning their union activities or membership. WE WILL NOT tell our employees that we will nego- tiate or enter into a contract with another labor organi- zation if they will withdraw their support from their chosen labor organization or persuade such labor or- ganization to withdraw its representation petition filed with the National Labor Relations Board. WE WILL NOT threaten striking employees that they will not be reinstated to their former positions unless they persuade their chosen labor organization to with- draw its representation petition filed with the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE HEREBY completely disestablish the Ash Hau- lers of Nevada, Inc., as a representative of any of our employees for the purpose of dealing with us concern- ing grievances, labor disputes, wages, rates of pay, hours of work, or any other terms and conditions of employment, and withdraw all recognition from said Ash Haulers as such representative. WE WILL, upon request, bargain collectively with the aforesaid Local 631 as the exclusive representative of our employees in the appropriate unit noted below with respect to rates of pay, wages, hours and all other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The appropriate unit is: All ash haulers employed by us at our facility at South Point, Nevada, excluding all office clerical employees, professional employees, guards and su- pervisors as defined in the Act. WE WILL offer LeRoy Mason, Mark Vaughn, Ron- nie I. Jenkins, and Brian Fountain each immediate and full reinstatement to his former job, or if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered as a result of our discrimination against him. All of our employees are free to become, remain or refrain from becoming or remaining, members of the above- named or any other labor organization. Dated By G. L. GIBBONS TRUCKING SERVICE, INC. (Employer) (Representative) (Title) WE WILL notify immediately the above-named employees if presently serving in the Armed Forces of the United States of their 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 compliance with its provisions may be direct- ed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Blvd., Los Angeles, California 90024, Tele- phone 213-824-7357.