Lowery Trucking Co.

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lowery Trucking Company and General Drivers and Helpers Umon Local No 554, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Cases 18-CA-3418 and 18-CA-3455 December 1, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 15, 1972, Administrative Law Judge James M Fitzpatrick issued the attached Decision in this proceeding Thereafter, Respondent filed excep- tions and General Counsel filed an answering brief to Respondent's exceptions and filed cross-excep- tions with a supporting brief Respondent then filed an answering brief in response to General Counsel's cross-exceptions 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Lowery Trucking Company, its officers, agents, successors, and as- signs, shall take the action set forth in said recom- mended Order 1 In the first paragraph of sec III B I of the Administrative Law Judge s Decision the date of February 2, instead of February 21 is inadvertently inserted as the day employee Petry was recalled DECISION Company (herein called Respondent or the Company) Based on these charges a consolidated complaint issued against Respondent on April 18, 1972 (and was amended at the hearing herein), alleging violations of Section 8(a)(1) and (3) of the Act Respondent answered the complaint denying commission of unfair labor practices The matter was tried before me at Council Bluffs, Iowa, on May 22 and 23, 1972 The questions presented are whether the Company violated Section 8(a)(1) by conduct of its supervisors in asking employees whether they had signed union cards and by predicting that the Company would close its doors before accepting a union With respect to this latter alleged threat, a further issue is whether the person alleged to have made such statements was in fact a supervisor whose conduct is attributable to Respondent The case presents three issues of alleged discrimination under Section 8(a)(3) These are (a) whether a layoff of 10 employees for a short period was done for discriminatory reasons or for economic considerations, (b) whether a leading proponent of the Umon among the employees was shifted from job to job for discriminatory reasons, and (c) whether his later discharge was for cause or because of his union activities Upon the entire record, my observation of the witnesses, and consideration of the briefs filed found by the parties, I make the following FINDINGS OF FACT I THE EMPLOYER INVOLVED Respondent is a partnership of Walter and Ruth Lowery Its principal place of business is at Council Bluffs, Iowa, where it engages in the leasing of trucks with drivers to interstate motor camers The principal product hauled is meat Respondent annually receives in excess of $50,000 from leasing trucks to such interstate camers Respondent is an employer engaged in commerce within the meaning of the Act Respondent normally leases out its trucks with drivers To service its fleet Respondent maintains a shop at Council Bluffs, in which it normally employs between 18 and 24 employees working in two shifts The shop facilities include a washrack for the cleaning of tractors and trailers, bays for servicing such as greasing, changing oil, light mechani- cal work, servicing of tires, and facilities for heavy mechanical work including motor overhauls STATEMENT OF THE CASE JAMES M FITZPATRICK, Administrative Law Judge These consolidated proceedings under Section 10(b) of the National Labor Relations Act, as amended, (herein called the Act) initiated with charges filed February 2, 1972 (amended April 10, 1972), in Case 18-CA-3418 and February 23, 1972, in Case 18-CA-3455 all by General Drivers and Helpers Union Local No 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union or Charging Party) against Lowery Trucking 200 NLRB No 104 II THE LABOR ORGANIZATION INVOLVED The Union is an organization which represents employ- ees and admits to membership employees of various employers including shop employees of Respondent It is a labor organization within the meaning of the Act On January 26, 1972, Wayne Holmes, a tireman in Respondent's shop, contacted the Union for the purpose of organizing the shop employees He obtained blank union authorization cards which he distributed, or had fellow employees distribute, the following day among the shop employees on both the day and night shifts Sixteen signed LOWERY TRUCKING COMPANY 673 cards and returned them to Holmes He returned them to the Union on the evening of January 28 On May 10, 1972, the Board conducted an election among the shop employees (Case 18-RC-9010) According to Respondent's brief, of 27 eligible voters at that time, 9 cast ballots for the Union, 15 against the Union, and 2 ballots were challenged On May 17, 1972, the Acting Regional Director for Region 18 certified the results of the election III THE ALLEGED UNFAIR LABOR PRACTICES A Alleged Interference, Restraint, and Coercion 1 Interrogation The complaint alleges and the answer denies that on January 28, 1972, Shop Foreman Deryl Crowell interro- gated employees about their union activities Crowell, admittedly a supervisor within the meaning of Section 2(11) of the Act, at about that time in talking with employee John Kannedy at the employee coffee table, inquired if Kannedy had signed a union card, and a few minutes later in the drivers room he asked employee Bruce Smith substantially the same question Both employees, who worked under Crowell, indicated they had signed union authorization cards at the solicitation of employee Wayne Holmes Considering that these interrogations occurred at the shop, were initiated by Crowell who was in a superior position and directed to Kannedy and Smith who were in inferior positions, and occurred while union activity was going on in the shop, I find that in the circumstances, they were coercive and contrary to the mandate of Section 8(a)(1) of the Act 2 Threats At the hearing the complaint was amended to allege that one Orville Slotten was a supervisor, that he stated to the employees that Respondent would close the plant in the event the employees selected the Union, and otherwise threatened that working conditions would be changed Respondent denies that these events occurred and also denies that Slotten was a supervisor within the meaning of the Act, its position being that at most he was a leadman With the advent of union activity about January 27 or 28, considerable discussion ensued among employees including members of the night crew Slotten, Dan Burdess, William Nourse, and Gary Bergen were among those assigned to the night shift According to the testimony of Nourse and Bergen, whom I credit, Slotten and Burdess in particular argued the pros and cons of unionism, Slotten declaring that Walter Lowery, Respon- dent's principal owner, would never let the Union get in, that he would close down the shop first Slotten said that handrags, handcleaners, and the coffee pot could be taken away He referred to his own past experiences with a union, declaring that it was no good Nourse testified that Slotten said, "If you think things are bad now, after the Union gets in, it will be even worse " In his testimony Slotten did not deny making these statements, he said he did not remember what was said Burdess did not testify I find that Slotten made the statements attributed to him by Nourse and Bergen The remaining question, which is a close one, is whether Respondent is legally responsible for Slotten's remarks I find Slotten was not a supervisor and his remarks are not attributable to Respondent His status on the night shift differed in some measure from that of other members of the crew But considering all aspects of his authority I find that for the most part he exercised routine authority and rarely if ever exercised a significant measure of independ- ent.judgment Respondent's management consists of Walter and Ruth Lowery, the partners who own the business, Truman Wolf, the general manager, and Deryl Crowell, the shop foreman regularly on duty during the day shift and on call at night Lloyd Crowell, the safety man for Respondent's over-the- road operations is generally around the shop at night It is not clear whether he is a supervisor, but he and Deryl are brothers of Ruth Lowery The evidence does not establish that Lloyd Crowell has any responsibility respecting the operation of the shop In January 1971, at a time when Respondent had no employees on the night shift, Walter Lowery reassigned Slotten, then a rank-and-file mechanic, from the day shift to the night shift For a time thereafter he worked alone nights Later others were also assigned to the night shift No one regularly working nights had more authority than Slotten As trucks needing service came in during the day, Shop Foreman Deryl Crowell prepared work orders indicating what servicing each vehicle needed At the beginning of each night shift Crowell handed to Slotten the previously prepared orders on trucks still needing service Slotten parcelled these out to night shift employees to perform the servicing indicated As they finished each assignment he handed them another His transmittal to them of work assignments appears to have been basically mechanical, not involving the exercise of judgment The night shift employees were all regularly assigned to perform particular types of servicing such as washrack work, tire changing, greasing and the like, work which was essentially routine in nature According to Slotten, whom I credit in this respect, he made only routine decisions on his own, such as, for example, whether obviously bald tires needed replacing On any major question he telephoned Shop Foreman Crowell or General Manager Wolf for instructions Slotten did not give detailed instructions to night crew members regarding their work because, in his words, they knew their jobs and did them If on occasion they had a question, he gave his advice But they also asked the advice of other crew members such as Burdess On occasion Slotten sent a service mechanic to obtain repair parts He also exercised some surveillance over night operations On occasion he went into the washrack area to check He sometimes told night shift employees they were working too slowly If work was erroneously performed, he pointed out how the work should be done The evidence does not establish that he had authority to discipline or otherwise take action against employees who did poor work By his own admission it was his responsibility to see 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the mechanics did their Job But he considered himself a leadman rather than a supervisor Nourse and Bergen considered him a supervisor All employees on the night shift, including Slotten, punched timecards On a couple of occasions when a night shift employee forgot to punch in Slotten validated the timecard by initialing it When they wanted time off, they asked his permission, which he almost invariably gave Nourse testified credibly that if they were really busy Slotten would not okay a request for timeoff, but he did not specify any occasion when such occurred The general sense of Slotten's testimony is that he could not force people to work and if he was told someone wanted timeoff he agreed to it In all the circumstances I credit Nourse on this because it is apparent the crew felt the need to consult Slotten if timeoff was desired Such necessity implies he had authority to deny timeoff at least in some circum- stances In advance of holidays Slotten advised night crew members if they were required to work On paydays he handed out the paychecks In both regards his function appears to have been mechanical According to Slotten, when he was on the night shift, in addition to assigning work to others, he performed work of a rank-and-file service mechanic, particularly fixing lights and moving trucks Nourse testified that Slotten only occasionally fixed lights, and Bergen testified that he never saw him perform any rank-and-file work I do not credit them in this because in Bergen's case he had been employed a short period of time, because Slotten had time to perform rank-and-file duty, and because he continued to perform those duties after he returned to the day shift Slotten received no special compensation which would indicate he was a supervisor Although he had been employed 5 years he received $154 40 for a 46 hour week, only about $10 per week more than Bergen who was a new employee, and substantially less than Burdess who worked on the same shift and was not a supervisor At the time of the hearing Slotten had been returned to the day shift as a nonsupervisory service mechanic without change in pay Considering all these circumstances I find that Slotten as a senior employee was more responsible than others on the night shift but lacked authority to exercise substantial independent judgment I find the evidence insufficient to establish he was a supervisor within the meaning of the Act B Alleged Discriminations The complaint alleges that Respondent engaged in three types of discrimination in violation of Section 8(a)(3) of the Act First, it is alleged that on January 31, February 1, and 2, 1972, 10 shop employees were laid off for discriminatory reasons, second, that between February 1 and February 17, Wayne Holmes, who was not laid off, was, for discriminatory reasons, removed from his regular job and frequently moved from job to job, and third, that on February 17, Holmes was discharged because of his union activity Respondent admits the events but denies the alleged reasons therefore 1 The layoffs Concerning the 10 layoffs the parties stipulated that on January 31, 1972, Respondent laid off John Kannedy, Gary Petry, and Dennis Hynek, on February 1, Jack Parrott and Dennis Jacobsen, and on February 2, Dan Burdess, Gary Bergen, William Nourse, John McDowell, and William Roberge Each received a letter from Respondent stating, "This letter is to advise you, due to decrease of equipment and economical conditions it has become necessary to temporarily lay you off until our operation becomes more stable We hope this can be accomplished in the very near future " Most were recalled by letter stating, "We are pleased to inform you that due to improvements in our operation, we are in a position to recall you to work immediately " It was stipulated that Petry was recalled on February 2, Hynek on February 17, but that he did not respond to the call , Bergen on February 21, and all the other were on February 12, returning to work February 14 Discrimination in recalling is not alleged Respondent's position is that the 10 were laid off because of lack of work at that particular time, and not because of union activity a Company knowledge and union animus Management knew there was union organizing activity among shop employees on January 27 and 28 In particular such knowledge is indicated by Deryl Crowell's admitted interrogation of two employees as to whether they had signed the cards The testimony of Kannedy and Smith, whom I credit, shows he knew Holmes was the prime mover in union organizing The General Counsel relies heavily upon the coincidence of the union activity and the layoffs as a basis for inferring a discriminatory motive He also points to the fact that all 10 of those laid off had signed union cards In its defense the Company points out that others who had signed union cards, including Holmes were not laid off Respondent also claims there is no evidence that it harbored animus toward the Union and also claims that it had valid business reasons for the layoffs The General Counsel contends that in addition to the timing of the layoffs, other conduct by Respondent indicates an antiumon attitude Thus it is urged that after the Company learned of the union activity it ceased providing the shop employees with coffee, forbad them to play truck radios while they worked, gave orders that shop employees were not to engage in conversation while working, engaged in harassing surveillance of their work, and changed time for distributing paychecks to night crewmen from I p in to 5 p in Fridays However, none of this is alleged to have violated Section 8(a)(1) or (3) At about the time the union activity occurred, shop employees were told not to play the radios in the trucks Prior thereto, playing of radios had been common Further evidence shows, however, that the Company has always had a policy that truck radios shall not be played in the shop, which policy has more often been ignored than honored The evidence also shows that Respondent's trucks are powered by diesel motors which are difficult to LOWERY TRUCKING COMPANY 675 start particularly in wintertime, and which in starting make heavy demands on the truck battery The testimony of Lonnie McMullen, Respondent's heavy mechanic, indi- cates that if the truck lights as well as the radio are operated for a substantial period of time while the truck is in the shop, the battery may be weakened thereby increasing the difficulty of winter starting By the time of the hearing herein in May, Respondent had eased enforcement of its rule respecting the playing of radios But at the time of the events in question at the end of January, it was still winter in Council Bluffs, Iowa In the circumstances I find that the ban on radio playing is not substantial evidence of union animus or retaliation for union activity By established practice the shop employees were entitled to two coffeebreaks on each shift At some time prior to the events involved herein the Company had provided a coffee pot and a supply of coffee for that purpose Because of dissatisfaction with the pot, the employees provided their own coffee pot, the Company continuing to supply the coffee with the girls in the office preparing it At about the time of the union organizing activity, the Company ceased supplying the coffee Thereafter each employee brought his own coffee There is no evidence of any employee protest regarding this change The employees continue to be allowed their two coffeebreaks per shift As with the radio playing, I find that the change in the coffee situation is not significant evidence of union animus or retaliation against employees for union activity At about the same time Ruth Lowery, one of the partners of the business, reprimanded Kannedy and Smith for standing around talking and also directed Shop Foreman Deryl Crowell not to permit them to do so At the time they were not working, but were standing around talking briefly between job assignments Whether or not Ruth Lowery's criticism was justified, I find her action was a normal one for a member of management and not indicative of union animus or retaliation for union activity even though it may roughly have coincided with union activity I come to the same conclusion respecting the evidence that members of management at about the time of the union activity gave greater surveillance to the work of the shop employees Surveillance of work is a normal function of management Holmes testified that he was not heckled or harassed by it, nor is there any other evidence of employee disadvantage as a result of management's attention On the other hand, Shop Foreman Deryl Crowell credibly testified that coincidental with the union activity shop employees stood around more and talked more and that his instructions from higher management were to keep them working Regarding the contention that on January 28, Respon- dent changed its policy respecting distribution of pay- checks by distributing them at 5 p in instead of 1 p in, I find the record herein inadequate to establish what the prior practice was, and even if, as contended, a prior practice was changed, I find the change too insignificant to warrant an inference of animus or retaliation for union activity Even lumping all of the alleged retaliation together, the complained of conduct lacks persuasive weight The record shows no employee or union protest to it , nor any unfair labor practice charges based thereon If the changes were of any real significance, the record would contain more persuasive evidence of employee disadvantage Respondent also contends , and offered testimony to the effect that, all 10 layoffs were made in accordance with shift seniority, 5 being laid off from the day shift and 5 from the night shift However, a seniority list of the Company shows that one shop employee , Warren Womble, who had less seniority as a shop employee than John Kannedy, Dan Burdess, Jack Parrott, or William Nourse was not laid off while they were This is the only evidence that strict seniority by shift was not followed in the layoffs This exception is explained by the fact that Womble had greater seniority, as a truckdriver, a job he could no longer hold because of injury, and Respondent assigned him to the shop in order to provide him with a job Accordingly, Respondent's departure from a standard of strict shift seniority does not appear to have been based upon a desire to discriminate against union activists b The economic defense At the time of the layoff Respondent had a total fleet of about 169 or 170 tractor-trailers, about 30 of which were out of service, leaving a net operating fleet of about 140 units The licenses of 15 of the out-of-service units had expired and these 15 had been sold to a supplier of new equipment Respondent had on order 40 new units on which delivery was to begin about January 1 But these did not begin to arrive until mid-February, about the time the layoffs were recalled As they arrived these new units were prepared for road operations by Respondent's shop crew Respondent offered evidence which it contends also establishes that it simultaneously was experiencing a reduction in business which warranted a reduction in force In support of this assertion General Manager Truman Wolf and Partner-Owner Walter Lowery testified generally that business had fallen off and that that condition partially motivated the layoff In addition, Shop Foreman Deryl Crowell testified that during the layoff the shop crews kept on were able to handle the work None of this testimony was contradicted In further support of its business dropoff contention, Respondent offered documentary evidence in the form of summaries of Respondent's records prepared by, or under the supervision of, Wolf But, as pointed out in the General Counsel's brief, these summaries are inadequate and fragmentary and do not provide satisfactory corroboration for the testimony of Respondent's witnesses For example, Respondent leases trucks to six carriers but the summary for the periods immediately preceeding the layoff cover only the business done with four There is no explanation of why two were not included Even allowing for the fact that the two omitted apparently did not lease as many trucks as those reported, the evidentiary picture presented is incomplete and confusing Further, the summary proports to give the average weekly mileage per truck which Respondent contends shows a falloff in business To reach this figure, Respondent computes the average weekly 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mileage per truck operated by each of the four carriers reported upon, totals these averages, divides by four and comes up with a figure which it contends is a valid indicator of the condition of its business But each carrier leases a different number of trucks, the record suggests that one leases about 62, another 46, another 5 and another 23 Respondent's summary gives equal weight to each group average Nevertheless, the summary provides partial, if unsatisfactory and inconclusive, corroboration for the testimony of Wolf and Lowery in that it shows low average weekly mileage during the 2 weeks preceding the layoff for Respondent's biggest customer, Midwest Emery Freight System Although the evidence about a falloff in business is confusing as well as inconclusive and for those reasons not very persuasive, there is evidence of other business reasons for the layoff, namely, that some trucks were out of service and that newly ordered trucks had not arrived on schedule These circumstances are sufficient to explain the short layoff Whether the decision to lay off was wise or unwise, too much or too little, is not an issue in this case I cannot agree with the General Counsel that the fact that 10 of the approximately 24 shop employees were laid off is indica- tive of a discriminatory motive, and I think his argument in this regard is weakened further by the fact that the layoff was relatively short I note there was uncontradicted evidence of a concurrent layoff of some drivers (which were not alleged to be discriminatory) as well as a drop in their earnings during February General Counsel also urges that the fact that Respondent had no history of prior layoffs is a circumstance indicating a discriminatory motive for the layoff involved here But the record also shows that since its inception Respondent's business has been expanding, and Respondent argues there has been no prior occasion for a layoff On this point, then, the General Counsel's argument is reduced to a contention that since Respondent in the past has, without laying off employees, accommodated the peaks and valleys which characterize its business, it should have done so on this occasion and its failure to do so indicates bad motive But this enters the realm of business judgment Such circum- stances, without more, do not support on inference of unlawful motive The General Counsel would also convict Respondent of a general antiumon attitude because certain of its actions in 1968 were found to be unfair labor practices See Lowery Trucking Co & Ace Alkire Freight Lines, Inc, 177 NLRB 13 I do not think such an inference is now warranted The passage of time since that unlawful conduct has been substantial Moreover, that case involved a different labor organization than in this case The General Counsel also urges that the extent of union organization supports his contention that the layoff was clearly discriminatory, 16 of about 24 employees in the shop signed authorization cards for the Union But it seems to me that this unquestioned fact is not material to the issue of Respondent's motivation Although there is evidence that at the time of the layoff Respondent knew there was union activity among the shop employees, there is no evidence of company knowledge of the extent of organization Accordingly, there is no basis for inferring that the extent of organization influenced Respondent's motive What the General Counsel's case on the motive for the layoffs comes down to is the timing of the layoff at 5 p in on Monday, January 31, shortly after the union organizing activity which occurred in the shop chiefly on Thursday, January 27 The Company knew that Holmes was passing out union cards and in addition Crowell on Friday, January 28, interrogated Kannedy and Smith in violation of Section 8(a)(1) Other than to establish company knowledge of union activity, I do not think Crowell's conduct helps to explain the motive for the layoffs His conduct was not a particularly serious violation of Section 8(a)(1) and the record does not indicate that he participat- ed in the decision to layoff or the selection of employees for layoff Nevertheless, the circumstances of knowledge and timing could support an inference of unlawful motivation if there were no other evidence bearing upon that question While the other evidence going to motive is not entirely satisfactory, in my view it is substantial enough to offset the case made by the General Counsel In this regard I rely particularly on the uncontroverted evidence that some trucks were out of service, the delay in arrival of new trucks to be prepared for road operations, and the recall of employees from their relatively short layoff when the new trucks began to arrive Based on the foregoing I find that a preponderance of the evidence fails to establish that Respondent's motive in laying off the 10 shop employees was discriminatory Accordingly, the allegations of the complaint so alleging should be dismissed 2 The shifting of Wayne Holmes Wayne Holmes, the principal instigator of union activity among shop employees, was first employed by Respondent on October 1, 1969, and continued until he was discharged February 17, 1972 When he was first hired he was assigned to work as a service mechanic in which he greased, oiled, and performed general maintenance on trucks After about a year he was reassigned to work as a tireman repairing tires and mounting new tires He continued with this assignment until the layoff of 10 shop employees described earlier herein At that time another employee, Bruce Smith, was also working on tires Holmes and Smith were not among those laid off but during the layoff Holmes was shifted about from job to job both as a service mechanic, work he had performed earlier, and in the washrack, work he had not done before, and at times as a tireman The washrack assignment involved hanging meathooks, steaming out trailers, washing out trailers, washing the outside of tractors and trailers and storage pallets, and the fueling of trucks Although he had not done this work before it required no special skill or experience He testified that at no time either during the layoff or earlier had management indicated any dissatisfac- tion with his work During the layoff Smith, who was junior to Holmes, was kept on tires Holmes was the only shop employee who was switched around from job tojob His pay was not affected in any way There is no evidence to indicate that one assignment was more or less desirable than another Respondent offered the testimony of its oldest shop LOWERY TRUCKING COMPANY 677 employee, Lonnie McMullen, the heavy mechanic, to the effect that shop employees are occasionally shifted from job tojob There is no explanation in the record why Holmes was the only employee who was shifted around from job to job during the layoff Absent some explanation as to why only he was switched around, and considering that his reassign- ments followed upon the heels of his activity as key union organizer, a fact which management had knowledge of, the inference is warranted, and I find, that his transfer from job to job was because he had engaged in union activities I find, therefore, that he was treated differently from the other shop employees because of his involvement with the Union This was prohibited discrimination even though there is no evidence that he was disadvantaged thereby, and I find that in so discriminating against him Respon- dent committed an unfair labor practice within the meaning of Section 8(a)(3) of the Act 3 The discharge of Wayne Holmes On February 17, Respondent discharged Wayne Holmes, it claims for cause The General Counsel contends Respondent's motive was discriminatory , relying particu- larly on the timing of the discharge a short period after the organizing effort, knowledge of Shop Foreman Deryl Crowell that Holmes was the chief instigator of the organizing, and the claimed unlawful shifting of Holmes during the layoff Those circumstances , without more, warrant an inference of discriminatory motive But the record contains other evidence going to the question of cause for the discharge which must also be considered in resolving motive On the morning of February 17, Holmes, who for the moment at least had been returned to tire work, accidental- ly backed a tractor-trailer into the Company's safety car assigned to Lloyd Crowell, doing about $100 damage to the safety car Holmes was concerned that he might be fired because of the collision Later, at the mid-morning coffeebreak, the shop crew, including Holmes, discussed the collision None of his comments indicated the collision was intentional There is, however, considerable variance in the testimony of witnesses present regarding what was said In view of what followed, I deem it unnecessary to resolve these differ- ences Lonme McMullen, the heavy mechanic, testified that Holmes said he did not see the safety car, but that if he had, he would have backed right over it, and that it was a good thing it wasn't the Lincoln or the Cadillac (cars belonging to the owners of the business Ruth and Walter Lowery), or he would have backed clear over it After the coffeebreak McMullen reported this to Shop Foreman Deryl Crowell In mid-day General Manager Wolf and partner owner Walter Lowery called Holmes into the office for question- ing He was asked about the accident He was also asked whether he had intended to do more damage than he had, or if he had stated that if he had intentionally collided he would have done more damage and he would have liked it to have been Walter Lowery's Cadillac According to Wolf, Holmes was indignant, as if management had no right to question him Wolf characterized his attitude as offensive Holmes denied intentionally colliding, stating that if he had intentionally collided, he would have done a better job He also, according to Wolf, denied making the statements during the coffeebreak which had been reported to management, adding that even if he had made the statements, they could not prove it Both Lowery and Wolf testified that that remark caused Lowery to fire him Lowery indicated he thought Holmes was threatening his life and he fired him forthwith Wolf testified Holmes was not fired because of union activity, or the collision, or the damage to the safety car, but because of his attitude about the whole thing Lowery vacillated regarding the reason for discharge Early in his testimony the reason he gave was threats Holmes allegedly made about running over his car Later he gave Holmes' attitude as the reason, citing the remark about them not being able to prove it even if he had made the statements attributed to him Like Wolf, Lowery testified that the discharge had nothing to do with union activity He also denied Holmes was fired because of the collision, although discharge on that ground, he said, was warranted During that afternoon, after Holmes was discharged, Walter Lowery and Wolf continued to interview other shop employees about what Holmes said at the morning coffeebreak According to Lowery some of these reported that they did not hear Holmes make any remarks , others reported Holmes said the collision was not intentional, and other reported Holmes said that if he had intended to collide he would have done a betterjob This latter version jibes with what Holmes admits he said One shop employee, David Siefken, testified to a version comparable to McMullen's But on cross-examination he gave a version more consistent with that of Holmes The General Counsel points out, and I agree, that continuation of the investigation after the discharge suggests Respondent was unsure of its grounds for discharge Admittedly Holmes was not fired because of the collision Respondent claims the cause was his "attitude " This could include what happened at the morning coffeebreak and later at the discharge interview Even after the discharge Respondent was uncertain of the coffeebreak incident as a ground for discharge As to the discharge interview, Holmes, who was on the carpet, was naturally on edge Allowing some reasonable latitude for human emotions, nothing occurred at the meeting which would be a logical ground for discharge I am not persuaded, therefore, that Lowery discharged him because of any remarks, or his appearance, or his "attitude" during the meeting And because of management's continued uncer- tainty about events at the coffeebreak, I am not persuaded that was a reason either Although Lowery and Wolf both denied Holmes was fired because of union activity, he clearly was fired for some reason Absent some more convincing showing of a nondiscriminatory motive than appears in this record, I infer from the circumstances (Company knowledge of his union activity, the timing of the discharge in relation to the organizing, and the discrimination against hun during the layoff) that at the time of discharge Lowery was motivated by a desire to rid himself of the union activist Accordingly, 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find from a preponderance of the evidence that the discharge was discrimination because of union activity and was, and is, an unfair labor practice forbidden by Section 8(a)(3) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states Those found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and are unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By discharging Wayne Holmes on February 17, 1972, and by for approximately 2 weeks prior thereto frequently shifting his job assignments, both because of his union activities, Respondent discriminated in regard to his tenure of employment and the terms and conditions of employment to discourage membership in a labor organi- zation and in both regards committed , and is committing, unfair labor practices within the meaning of Section 8(a)(3) of the Act 5 Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended i V THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I recommend that it cease and desist therefrom and take affirmative action designed to effectu- ate the policies of the Act I also recommend that Respondent offer to Wayne Holmes immediate, full, and unconditional reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges or working conditions , and make him whole for any loss of earnings he may have suffered as a result of discrimination against him by paying him a sum of money equal to the amount he would have earned from the date of his discharge on February 17, 1972, to the date Respondent offers him reinstatement, less his net earnings during that period in accordance with the Board's formula stated in F W Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co, 138 NLRB 716, and that it make records available to Board agents in connection with compliance therewith I further recommend that Respon- dent post appropriate notices At the hearing the Union orally urged that Respondent also be ordered to bargain with the Union The General Counsel declined to join in that prayer In the circumstances, including the fact that the Regional Director for Region 18 has certified the results of an election which the Union lost and the fact that no refusal to bargain is alleged in this proceeding, I deem a bargaining order to be inappropriate CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By coercively interrogating employees regarding their union activities Respondent interfered with their rights under Section 7 of the Act and thereby engaged in, ORDER Lowery Trucking Company, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees regarding union activities (b) Discouraging membership in General Drivers and Helpers Union Local Union No 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , or any other labor organization , by discharging or by discnminatmg in regard to work assignments or by otherwise discriminating in respect to the hire or tenure of employees or any term or condition of their employment (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form a labor organization, tojoin or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 2 Take the following affirmative action to effectuate the policies of the Act (a) Offer Wayne Holmes immediate, full, and uncondi- tional reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges and working conditions, and make him whole for any loss of earnings he may have suffered as a result of discrimination against him in the manner set forth in the section hereto entitled "The Remedy " (b) Notify immediately Wayne Holmes, if presently serving in the Armed Forces of the United States, of his right to reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act (c) Upon request, make available to the Board and its agents for examination and copying all payroll and other 1 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations be adopted by the Board and become Rules and Regulations of the National Labor Relations Board the findings its findings conclusions and Order and all objections thereto shall be conclusions and recommended Order herein shall as provided in Sec deemed waived for all purposes LOWERY TRUCKING COMPANY 679 records containing information concerning compliance herewith and Respondent's backpay obligation hereunder (d) Post at its premises in Council Bluffs, Iowa, copies of the attached notice marked "Appendix "2 Copies of the notice on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith 3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein 2 In the event that the Board s Order is enforced by a judgment of the 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 3 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 18 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 The National Labor Relations Board having found, after a trial, that we violated federal law by questioning employees about union activities and by frequently changing the work assignments of Wayne Holmes and then firing him because of his union activities WE WILL offer Wayne Holmes his old job and pay him any wages he has lost, with interest WE WILL NOT change work assignments because employees engage in umon activities WE WILL NOT discharge or discriminate against employees because of their umon activities WE WILL NOT interrogate employees about their union activities WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self organization, to form labor organizations, to join or assist a labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities LOWERY TRUCKING COMPANY (Employer) Dated By (Representative) (Title) We will notify the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South 4th Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611