Upland Freight Lines, Inc.

UPLAND FREIGHT LINES, INC. 165 Upland Freight Lines, Inc. and Lloyd Rosenogle and Fred L. Dressler and Jerrv Hall and John Green and General Truckdrivers, Warehousemen & Help- ers Union Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 31-CA-3593, 31-CA-3609, 31-CA-3666. 3l-CA-3667. and 31-CA-3787 February 21, 1974 DECISION AND ORDER BY MEMBERS JFNKINS, KENNEDY, AND PFNIa 10 On October 12, 1973, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. "Thereafter, the Respondent and the General Counsel each filed exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the 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, Upland Freight Lines. inc., Fontana, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE STANLEY GILBERT , Administrative Law Judge: Based upon a charge filed in Case 3l -CA-3593 by Lloyd Rosenogle on February 20, 1973; a charge filed in Case 31-CA-3609 by Fred Dressler on February 28, 1973: a charge filed in Case 31-CA-3666 by Jerry Hall on March 28, 1973; and a charge filed in Case 31-CA-3787 by i John Green filed a charge on March 28, 1973, as amended on June 4, 1973, in Case 31-CA-3667. However, during the course of the hearing said amended charge was withdrawn and the allegations in the complaint relating to Green were stricken , particularly par 7(b) and the inclusion of his name in par 6(a). The allegation in par 13 of the complaint of a violation of Sec 8(a)(4) relates to the allegations with respect to Green and should have been stricken along with the other allegations with respect to him Therefore, it is hereby stricken 2 By motion of the General Counsel, the second part of par. 9(a) of the complaint, commencing with the words "and ceased deducting . " was General Truckdrivers. Warehousemen & Helpers Union Local 467, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, on June 4, 1973, the consolidated complaint was issued on July 3, 1973.1 Said complaint, as amended, alleges that Upland Freight Lines, Inc., herein referred to as Respondent or the Company, violated Section 8(a)(l) and (3) of the Act.2 Respondent, by its answer, denies that it committed the unfair labor practices alleged in the complaint.•i Pursuant to notice, a hearing was held in San Bernardi- no, California, on July 24, 25, 30, and 31, 1973, before me, duly designated as Administrative Law Judge. Appear- ances were entered on behalf of General Counsel and Respondent. A brief was received from the General Counsel on September 4, 1973. By letter dated August 31, 1973, counsel for Respondent stated that it had decided not to file a brief. Upon the entire record`' in this proceeding and my observation of witnesses as they testified, I make the following: FINDINGS OF FAC1 I. BUSINLSS OF RESPONDENT Respondent is a California corporation with its principal place of business in Fontana, California, where it is engaged in the business of hauling freight. In the course and conduct of its business operations dunng the year preceding the issuance of the complaint herein, Respon- dent performed services valued in excess of $50,000 for firms located within the State of California, each of which firms annually produces, sells, and ships goods valued in excess of $50,000 directly to customers outside the State of California. As is admitted by Respondent, it is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. I HE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Lloyd Rosenogle on February 12, 1973, Fred Dressler on March 10, 1973, and Dale Malensek on May 23, 1973. Respondent, during the course of the hearing, contended that it did not dismissed during the course of the hearing Although Respondent denied the allegations in par 5 of the complaint with respect to Don Wellner, particularly that he was an agent and supervisor of Respondent , dunng the course of the hearing, by stipulation, Respondent admitted his supervisory status ' General Counsel filed an unopposed motion to correct the transcript which is hereby granted. the changes in the transcript are set forth in "Appendix B" attached hereto [omitted from publication ], together with two corrections made by me 209 NLRB No. 36 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge Rosenogle but that he voluntarily quit his employment. Respondent admitted that it discharged Dressler and Malensek on the dates indicated. Respon- dent, however, contended that the above-mentioned terminations of employment were not violative of Section 8(a)(3) and (1) of the Act. The complaint further alleges that Respondent engaged in many violations of Section 8(a)(1) of the Act, including a more stringent enforcement of its warning notice system," changing the payday for its employees, assigning a new truck to Rosenogle, and a considerable number of acts of interrogation, threats, and promises of benefit by Gerald (Jerry) Wilson, president of Respondent, and Wellner, its dispatcher. A. Background Information Respondent is a trucking firm with about 21 truckdri- vers. Commencing in December 1972, the Union conduct- ed an organizational drive among said employees. On January 3, 1973, the Union filed a petition with the Board in Case 31-RC-2316, seeking to represent Respondent's truckdriver employees. Pursuant to a stipulation for certification upon consent election approved February 5, 1973, a Board-conducted election was held on February 16, 1973, in which the vote was 11 in favor of the Union and 9 against, with I challenged ballot. Objections to the election were timely filed by Respondent and on April 30 the Regional Director issued a report on objections, recommending that they be overruled. On May 18, 1973, the Board issued its Decision and Certification certifying the Union as the exclusive collective-bargaining represent- ative of the Respondent's truckdriver employees. B. Resolution of the Issues of Fact Because of the many incidents to which the witnesses testified and because of the interrelation of said incidents, it appears that an understanding of the facts and the resolution of the issues raised thereby can best be accomplished by setting forth the incidents in as near to chronological order as possible and by making the concluding findings after the entire exposition of the findings of fact. It should be noted at the outset that Wilson testified that he had talked about the Union with all of the employees except Rosenogle. His pertinent testimony with respect thereto is as follows: A. Well, I asked the employee what they were really wanting. Did they really want to put the company out of business with demands of $6.00 and something an hour . And I would tell them that the company couldn't afford that. And on occasion I have asked an employee if we had a strike and half the boys wanted to work would they cross a picket line. * * * * * Q. You mentioned a $6.00 figure . Where did you get that figure , Mr. Wilson? 5 Also alleged to be '.iolative of Sec 8(a)(3) A. These were figures that various drivers had come up with. They had mentioned that the union had mentioned it to them. And I had asked several drivers why did they want to put me out of business. * Q. Now, in your opinion what if any impact would $6.00 an hour have on the company? A. It would put us out of business within 90 days or less. Q At any times during January and February did you question employees as to whether or not they were for the union? A. Q. Yes. And did any employees tell you they were? A. Yes. Q. Of the 20 or so employees with whom you discussed the union how many told you they would on various occasions? A Well, what they told me and what we had were different. I had about 18 in my favor and on election day I lost by one vote. So what I was told wasn't necessarily the truth. It should also be noted that Wilson did not deny much of the testimony of the General Counsel's witnesses as to his conduct. With respect to said testimony which is set forth hereinbelow, it should be understood that, unless otherwise indicated, it was uncontradicted. On or about January 4, 1973. according to Rosenogle's testimony. Wilson asked him into his office and told him that he had heard that the union movement was on again, to which Rosenogle replied that he hadn't heard about it. Wilson then said that if the Union came in he was going to have to close the gates and the employees would all be without a job. Also, according to Rosenogle's testimony, Wilson in the course of their conversation asked him how he was going to vote in the election, to which he replied that he would vote with the majority. Wilson then said that he would have to take that as a yes answer , to which Rosenogle replied, "Okay, Mr. Wilson, if that is the way you want it. Then I will definitely vote yes." As above stated, Wilson testified that he talked to all the employees about the Union. He further testified, however, that he did not talk to Rosenogle. His explanation of why he made an exception in Rosenogle's case is not convincing and, therefore, Rosenogle's above-summarized testimony is credited On the same day, January 4. 1973, according to Rosenogle's credited testimony, he had a conversation with Wellner in which Wellner asked him if Wilson had talked to him that day. When Rosenogle stated that he had, Wellner asked him what he had told Wilson. Rosenogle stated that he had told Wilson that he would vote for the Union, to which Wellner replied, "then you are going to be without a job." On January 5, 1973, according to the credited testimony of employee Jerry Hall, Wellner asked him what he thought about the "union thing." When Hall stated that he did not want to talk about it, Wellner persisted in asking UPLAND FREIGHT LINES, INC. him what he thought about the Union. Hall then said that Wellner knew what he thought of the Union and Wellner replied "Well Jerry [Wilson] is making other plans." Also on January 5, Respondent ordered a classified advertisement to be published in a San Bernardino newspaper which appeared for 14 consecutive days starting on January 6. The advertisement was as follows: DUE to driver problems: long established trucking firm is selling 25 late model Diesel tractors with a sub haul-lease agreement for 5 yrs. All equipment to be sold by Feb. 1 Contact G. R. Wilson, (714) 987-3025, (714) 822-2035 days, (714) 987-5233, eves. On January 6, according to Hall's credited testimony, he saw the above advertisement. He also testified that on that day he had a conversation with Wilson. His credited testimony with respect thereto is as follows: Mr. Wilson came up to me and said you don't have to worry about a job. I am selling all but four trucks. I am going to sub-haulers with the rest of my business. And then he asked me what I thought of the union. I told him I didn't have anything to do with it and I didn't want to talk about it. And he said would you vote against the union to help the company succeed and I just shrugged it off. 1 didn't say no more. On January 7, according to Hall's testimony, he had another conversation with Wilson. His credited testimony with respect thereto is as follows: I went to the yard to wash my truck and Mr. Wilson was there and he asked me if I would come into the office and talk to him. So I went into the office and talked to him. He said well, what do you think of this union deal and I said Jerry, just like I told you yesterday. I didn't have nothing to do with it and didn't want to talk about it. And he said he was selling the trucks, what did I think of this. And I said Jerry, they are your trucks. And then he came up with this that we had an agreement last year whenever this union deal came up, that we had an agreement that it wouldn't come up anymore unless I informed him that it was coming up. And I said Jerry. I didn't sign anything. And he said yes, but we had a verbal agreement. I said, Jerry, I still didn't sign anything. He said if I have to I will spend $10,000 to put the ones in jail that brought this union deal up. And I just shrugged and didn't think no more of it. And then he asked me if I would vote yes to help the company succeed again. * He said I was supposed to be the spokesman for this thing, this union thing, that I was supposed to be the spokesman for it . And that every employee who came here was under the same agreement that I was. That they were supposed to know the union wasn't to or wasn't supposed to be brought up again. 167 And I just shrugged it off. I didn't want to talk about it anymore. He said he could afford $4.00 an hour for the persons, $4.00 an hour wages and thirty-five cents benefits for the persons who had been there a year or longer. THE WITNESS: He said this union deal would put Rosenogle out of his new home and put Les Little and his family-they just started a new family and that it would put them in jeopardy because there would be no more work there. Hall further credibly testified that Wilson also asked him if he had signed a card, ostensibly a union authorization card, to which he replied that he had. On January 8, according to Hall's credited testimony, Wellner asked Hall if he had gone to the "meeting" (ostensibly referring to a meeting the employees had with the union representatives on the previous day), to which Hall replied that he had. Wellner then asked him if he had changed his mind and Hall said that he had not. When Wellner asked him how he would vote, Hall told him that he did not want to talk about it. When Wellner persisted in questioning him as to his vote, Hall replied, "Well, if Mr. Wilson calls my home any more when I am not there, it would change my mind." On January 8, according to the credited testimony of Terry Lawrence, when Wilson interviewed him for employ- ment, Wilson stated that if the Union came in he would have to close his Company. Also on January 8, according to Rosenogle's credited testimony, Wilson gave him three warning slips, the first dated December 27, 1972, the second January 3, 1973, and the third dated January 8, 1973. It appears from Roseno- gle's credited testimony that he had not been previously given any warning slips, although he had engaged in conduct warranting issuance of such slips twice in 1972 and he had been disciplined by a 30-day suspension in May 1972 for one of those incidents. It is noted, however, that, according to the record, the Respondent did not start using warning slips until July 1972. On January 9, 1973, according to Rosenogle's credited testimony, he was assigned a newer truck than the one he had previously operated. Wilson told him that the new truck was his (Wilson's) idea and maybe this would help to influence his (Rosenogle's) decision, ostensibly with respect to how he would vote in the union election. On or about January 9. 1973, according to the credited testimony of employee Alfred Ward, Wilson asked him how he was going to vote, to which Ward replied that he did not know yet. Wilson then stated that if the Union did come in he could not afford to keep the yard open and stay in business. On or about January 10, 1973, according to Dressler's credited testimony, he had two conversations with Wilson. In the first conversation, Wilson asked him what he knew about the Union and which way he would vote. Dressler 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed him that he would vote for the Union. It appears that at the time Wilson was making a tally of which way the drivers would vote. He indicated to Dressler that he would list him as voting for the Union, to which Dressler said "okay." It further appears that Wilson told Dressler that the Company could not afford the Union and would go broke, that he would have to close the gates, and that all the drivers would be without jobs. It further appears that Wilson asked him if he and his father wanted to buy a truck and Dressler said he couldn't afford to do so. In the second conversation, it appears that Wilson asked Dressler again if he wanted to buy a truck and stated that he had received $25,000 in down payments on trucks he had already sold. Again, Wilson told him that he "just can't stand up under it," referring to the "union deal," that if the Union were successful all the drivers would be out of work and "we'll have to shut the gates." On or about January 12, according to the credited testimony of Rosenogle's wife, she had a conversation with Wellner as follows: Well, I was going down to pick my husband up from work and I asked Mr. Wellner if Lloyd was there and if he was ready to come home. Mr. Wellner did not answer me. He asked me if I knew how my husband was going to vote in the union election and I told him no, I didn't. And he said that if the union got in-he said, do you know that if the union gets in there will be no jobs for anybody. And I said that I would tell Lloyd what he had told me. Let's see. He asked me why Lloyd was doing this to him and I told him Lloyd wasn't doing anything to him. And he said that he held Lloyd's decision to vote for the union personal and I asked him why and he said because he ran this yard and I told him that he did not run the yard, that Jerry did. He asked me what Lloyd had against Jerry and I told him the company hadn't held up to the promises they made to the men. And he said you know, if it wasn't for me Lloyd wouldn't be working here right now and he said if I had my way I would fire Lloyd now and that Lloyd was making $0.75 an hour more than he should have been. She further testified on cross-examination that Wellner said that "if it weren't for the Union" he would fire him that day. On January 13, according to Hall's credited testimony, Wilson asked him "who started this union thing" and he replied that he did not know. On January 16, Respondent posted a notice to all drivers which they were required to sign and did. The notice stated that "failure to comply with the following rules and regulations from this day forward, January 16, 1973, will result in the issuance of red slips; any driver receiving three (3) red slips will be fired." Then followed a number of rules, a few of which were new Although other notices containing rules had previously been posted, none stated anything with respect to punishment for the violation thereof. The so-called red slips had been issued by Respondent since July 1972 bearing the inscription that "anyone receiving (3) three warning slips will be subject to dismissal." It is noted at this point, however, that, according to the credited testimony of Dressler, on February 21, 1973, he was given a "pink slip" (apparently the alternative term for the warning notice) and, when he asked Wellner why he was being given the warning notice, Wellner said to him "because you guys wanted to go to the Union and be legal and everything else . . . the Company was going to be the same way." Shortly before January 19, 1973, according to the credited testimony of Dressler, when he and employee Jerry Jones walked into the office, Wilson said "here comes the instigators" and referred to them as "captain" and "colonel." On or about the same time, according to Dressler's credited testimony, when he passed Wilson and two employees with whom Wilson was talking, Wilson stated, apparently referring to Dressler, "I am just going to keep agitating him and try to get him to swing at me so I can hurt him." On January 19, according to Dressler's credited testimo- ny, he went into the office to ask the secretary if his paycheck was ready and, when she said that it was not, he flung some papers into a basket and uttered "a bad word." Later when Dressler returned to the office, Wellner gave him a warning notice for using abusive language in the office, racing his engine, and running his truck at excessive speeds in the yard and suspended him for 10 working days. Dressler then complained to Wilson about the suspension and refused to sign the warning notice. Wilson then issued a second warning notice for his failure to sign the first warning notice and for making threats against Wellner. General Counsel does not contend that either of the warning notices was not justified by Dressler's conduct but that Respondent followed a pattern of using warning notices more frequently and for transgressions which previously had only evoked oral reprimands. Dressler credibly testified to two instances prior to January 1973 when he engaged in conduct which, it appears, would have justified the issuance of warning notices to him, but for which he was not given warning notices. On January 20, Rosenogle's wife had a conversation with Wilson at Respondent's plant. According to the credited testimony of Mrs. Rosenogle, Wilson asked her how her husband was going to vote in the election, to which she replied that she did not know, he asked her what she thought about the election, to which she replied she did not have any thought because she did not work for Respon- dent; he then said "he would hate to see so many people lose so much" and that "if the Union came in he would have to close the gates", and he asked her if she would help her husband decide how to vote in the election, if she "would influence his vote." In the latter part of January, Wilson had two conversa- tions with employee William Foil. According to the credited testimony of Foil, in the first conversation Wilson asked him how he was going to vote in the forthcoming election; and in the second conversation, approximately a UPLAND FREIGHT LINES, INC. 169 week later, Wilson stated to him that "if the Union came in he would have to shut the Company down, that he wouldn't be able to continue operating any more"; Wilson again asked him how he was going to vote; and he further stated that if it were not for the deadbeats employed at the Company there would be no problem with the Union. In the beginning of February, Wilson had a conversation with employee Alfred Ward. Ward's credited testimony as to their conversation is as follows: Well, Mr. Wilson asked me if I had been at the Union Meeting and I told him yes. He asked me what I thought of it and I told him I didn't think very much of it. And he said well, that is the way most of your union meetings will go. And he asked me again if I was going to vote or how I was going to vote and I told him I still had to think about it and he said well, you ought to be a man and stand on your own two feet and do what you think is right. And I told him okay and that was the end of that conversation. In the second week of February, Wilson had another conversation with Foil. Foil's credited testimony as to this conversation is as follows: He asked me if I had changed my mind on the way I was going to vote and he also was telling me that he wouldn't be able to continue operating if the union would come in. They would have to shut the doors and everybody would be out of a job. And he was also saying that he could give the employees a 25 cent increase at that time because of something with Kaiser. Kaiser was supposed to come up with some kind of money that he would be able to increase the wages. In the second week of February, Jerry Hall overheard a conversation between Wilson and Wellner in the office next to the one in which he was present. According to his credited testimony, he overheard Wilson tell Wellner that "if he had to he would follow every driver here who put the union in and get enough on them to fire them if the union got in." It is not clear that Wilson was aware that he could be overheard by Hall. Consequently, this above-credited testimony will not be relied upon to support a finding of a violation of Section 8(a)(1) of the Act. However, it will be considered in appraising the extent of the antiunion attitude of Wilson. On February 10, Rosenogle saw that he was scheduled to work on Monday, February 12, and he told Wellner that he needed time off to finish moving to a new house. Wellner made no comment, so Rosenogle reported for work at 7 a.m. on February 12 as scheduled and worked until approximately 6 p.m. At that time Rosenogle told Wellner that he was going to go home in order to finish moving. Wellner told him that he was "sick and tired" of his attitude, that everyone else was in the same barrel. Rosenogle then went to park his truck and Wellner came up to him and asked him for the keys to the truck. Rosenogle asked what he was going to do with it and Wellner replied that he was going to use the truck. Also, Rosenogle testified that, when Wellner asked for the keys, he told him that "it would be a long time before he called me back to work." It is not clear whether Wellner categorically denied Rosenogle's testimony, but it is noted that Wilson testified that Wellner stated to him that he told Rosenogle that "it would be a long time before he ever would come back to work." The above-summarized testimony of Rosenogle is credited. Rosenogle did not report for work the remainder of the week but did go to the plant on February 16, the day of the election, to vote. When he attempted to vote, his vote was challenged by Respondent's observer on the ground that he had been terminated. On February 19, Rosenogle returned to the yard and asked Wellner whether he was going to be put back to work and Wellner told him that he was not unless he wanted to make an application for employment as a new employee. Rosenogle refused to make such an application. According to Respondent's witnesses, several attempts were made to reach Rosenogle by telephone on Tuesday, Wednesday, and Thursday, February 13, 14, and 15, but no one answered the telephone. When Wellner told Wilson of this, Wilson said to him "we would assume he quit." Wilson further testified that on February 12 or 13 he consulted the Respondent's labor consultant who suggest- ed that he not invite an unfair labor practice by discharging Rosenogle, but that, if Rosenogle did not show up for work, to try to reach him by telephone and then at the election have the Respondent's observer challenge Rosenogle's vote because he "did not come to work." It appears there exists considerable antagonism between Rosenogle on the one hand, and Wilson and Wellner on the other. On February 15, according to the credited testimony of Hall, he had a conversation with Wilson, who asked him how he was going to vote in the union election to be held the next day, to which Hall replied that he did not want to talk about it, and Wilson then said that he didn't think he had his vote anyway. Also on February 15, according to the credited testimony of Terry Lawrence, he had a conversation with Wilson in which Wilson asked him who he "thought was going to vote which way," to which he replied that he did not know; Wilson asked him who the instigators were and he told Wilson who he thought they were, one of whom he mentioned was Rosenogle; Wilson replied that Rosenogle would not be able to vote for the Union because he had quit; and Wilson also asked Lawrence how he was going to vote, to which Lawrence replied that he was going to vote against the Union. On February 16, the day of the election, according to the credited testimony of Dressler, just before he voted in the election, Wilson said to him ". . just remember we can't, you know, keep the company if the Union is in. . . ." Also on February 16, according to the testimony of Hall, he had a conversation with Wilson. Hall's credited testimony as to said conversation is as follows: He came up and got on the side of my truck and said how did you vote and I said I voted for myself and he said he thought he was going to lose then because there had been a bunch of drivers who had lied to him. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And I said Jerry, I never did lie to you. I never told you how I was going to vote. And he said he knew this and he wasn 't going to forget it. He said you had better start looking for another job because you won't be employed here too much longer. On February 19, according to the credited testimony of Dressler, he had a conversation with Wilson in the course of which Wilson asked him whether he would cross the picket line if the Union were voted in, to which Dressler replied that he would not . Also, according to Dressier's credited testimony , he had another conversation with Wilson later that day in which Wilson told him that he was going to sell Respondent 's trucks and would offer them to certain of the employees. On February 19, Wilson had a conversation with Ward. Ward's credited testimony as to said conversation is as follows: Well, I just came in from Los Angeles and Mr. Wilson came out and stepped up on the side of my truck and he said , well, Al, it is too bad you voted against us. And I said well , do you remember the other day when we had our talk and he said yes. And I said well, you told me I should stand on my own two feet and do what I think is right and I said that is what I did. And he said well , I go and fight a war for guys like you so you will have a free country to live in and then you turn around and try to stab me in the back like this. He said how would you like for someone to come into your house with a gun and try to make you do something you don't want to and I said, well, I wouldn't like it. And he said well , that is just what you guys are trying to do to me. He said I go and fight in the war and watch my friends get shot and everything and then you guys turn around and do this to me . So I told Mr. Wilson. I said my brother was in Viet Nam twice and you are no better than he is and with that he got off the side of my truck. Also on February 19, according to the credited testimony of Ward, he had a second conversation with Wilson. His credited testimony as to said conversation is as follows: A. He told me that when I first answered the phone, he asked me what the drivers wanted out of this and I told him that we wanted better wages and better working conditions out where we were working and not so many hours as we were working. Just mostly pertaining to the working conditions that we had. So he went on and told me he had ordered 50 new trailers and he had called Fruehauf Trailer Company to cancel the order on them and they would only let him cancel the order on 25 because they already had the other 25 made up. And that he would have to go ahead and take those. And that if he signed a union contract that he would have to finance through the bank so he could keep his credit rating upstanding. Q. Do you recall anything further in that conversa- tion? A. That is what I am just trying to think about. Yes. He told me that the way things were right now that he could pay us $4.00 an hour plus insurance benefits, better insurance. And then he asked me if I would go and talk to some of the other drivers and try to persuade them to not go for this union contract... . On or about February 21 or 22, Wilson had another conversation with Ward, according to the credited testimo- ny of Ward, in which Wilson asked him if he had talked to some of the drivers, to which Ward responded that he had; Wilson then asked him what they had said, to which Ward replied that they had said that "he should have thought of that six months before"; Wilson asked him whom he had talked to and Ward said that he had talked to employees Dressler, Hall, and Durrer, to which Wilson responded that they were probably part of the rabble rousers.6 On or about February 23, Foil had a conversation with Wilson. Foil's credited testimony as to said conversation is as follows: "He asked me if it came down to a strike would I have any qualms about crossing a picket line and I told him I wouldn't do it." In the latter part of February, according to the credited testimony of Hall , he had a conversation with Wellner in the course of which Wellner asked him what kind of a deal would it take to keep the Union out, to which he replied that Wellner was not supposed to ask him such a question; Wellner then said that Wilson would like to get together with the men to keep the Union out and wanted them to sign a contract ; and Hall replied that he wouldn't go for any of that "Yandale stuff" to which Wellner responded that he would not either.? On February 23, Dressler was, in effect , suspended for 30 days and, on March 10, he was discharged . Dressler, Wilson, and Wellner testified to the material events which occurred during this period. Following are the findings of fact with respect to said suspension and discharge based upon credited portions of the testimony of the above- mentioned witnesses. On February 23, when Dressler returned about 4 p.m. from a run to Los Angeles , Wellner told him that he wanted him to make three more runs to Los Angeles. Dressler complained that he could not do it, that he was too tired, to which Wellner responded "well, you won't work Monday then ." When Dressler asked him why, Wellner said, "Because you will be fired." Dressler was then told to get his belongings out of his truck and when he returned to the office he asked Wellner if the reason for firing him is because he refused to work overtime , to which Wellner replied that it was. On February 26, Dressler reported to the Respondent's yard to get his paycheck and was told by Wellner that he and Wilson had talked it over and they were going to suspend him for 30 working days instead of firing him. 6 In the transcript the phrase is incorrectly set forth as "rebel rousers." 7 Yandale is a labor consultant who was then employed by Respondent. UPLAND FREIGHT LINES, INC. 171 Wellner had informed Wilson of his action with respect to Dressler and Wilson consulted Yandale, the aforemen- tioned labor consultant . Yandale advised him that, if Dressler were fired, there would be a possibility of an unfair labor practice charge and they decided that it was better to suspend Dressler for 30 days. During the last week in February, Dressler telephoned Wellner several times. In the first conversation, he asked Wellner why he was "doing this to me" and told Wellner that he was "going to screw the wrong guy at the wrong time one of these days," at which point Wellner terminated the conversation . In the second conversation , Dressler repeat- ed this statement and Wellner invited him to come to the yard at any time he wanted to "have at it" and again abruptly terminated the conversation. In the third tele- phone conversation, Dressler asked Wellner if he could come back to work and Wellner told him to call Wilson, that it was not up to him to decide. Shortly thereafter, Dressler called Wilson's home and spoke to Wilson's wife who informed him that Wilson was out of town. Approxi- mately a week later, he called Wilson's home again and again was informed that Wilson was not at home. The third time that he called he reached Wilson and asked him about his job and Wilson told him to come to the yard to discuss it. On March 10, Dressler spoke to Wilson at the yard and asked if he was going to be returned to work and Wilson said that he would not be because he had made threats to Wellner and the Company. It appears that the threat he made to Wellner was the statement about going to "screw the wrong guy at the wrong time" and there was nothing in the record to indicate what threat he made "to the company." Dressler asked Wilson whether he could return to work if he would drop the charges which he had filed with the Board on February 28 (with respect to his suspension), to which Wilson made no answer. The General Counsel does not contend that the 30 days' suspension was discriminatorily motivated but does con- tend that the discharge on March 10 was so motivated. It is Respondent's contention that neither of said actions was discriminatorily motivated. It should be noted at this point that it appears from the record that Dressler has a belligerent personality and that there is considerable antagonism between Dressler, on the one hand, and Wilson and Wellner, on the other. On May 23, employee Dale Malensek was discharged by Respondent, which action General Counsel contends was discriminatorily motivated. Following are findings of fact relevant to Respondent's conduct toward Malensek. On February 15, Malensek was interviewed by Wellner for a job as a truckdriver and, when Malensek asked him if it would be a steady job, Wellner said it would be, but if the Union is "voted in" at the election to be held the following day the Respondent would not be able to use him. It does not appear that any explanation was given him why, in that event, he could not be used. Malensek was put to work on that day, February 15, but was not scheduled to work the following day. On February 16, Malensek telephoned Wellner and was informed that it did not seem they were going to be using him. However, during the first week in April, Malensek talked to Wellner and Wilson and was put to work. About the middle of April, according to the credited testimony of Malensek, he had a conversation with Wilson, who asked him if he knew that the "Union is coming" and Malensek said he had heard that it was. Wilson then asked Malensek what the other drivers had said, ostensibly about the Union, to which Malensek replied that he did not know. Wilson then asked him which way he would stand, to which Malensek replied that if the Union comes in he would go with it and, if it doesn't, he would not. At that point Wilson asked him whether or not, if there were a picket line, he would cross it, to which Malensek answered that he did not know, that he would not want to get his face "bashed in." On or about the end of April, Wilson asked Malensek whether he had made a decision on crossing the picket line, to which Malensek replied that he did not know, that he would have to see what happened. Malensek, Wilson, Wellner, and George Beattie, a mechanic working for Respondent, testified to events leading up to the discharge of Malensek on May 23. Following are findings of fact based upon credited portions of the testimony of the aforesaid witnesses. About the second week of April, Wilson asked Beattie in what condition Malensek kept his truck, to which Beattie replied "like a pigpen." It appears , however, that thereafter Malensek kept his truck in as good condition as did the other drivers. Early in May, Wellner told Malensek that he was getting a raise of 25 cents per hour , since he had completed 30 days of employment. On May 23, after Malensek had completed a run in his truck, he went into the office where he was informed by the secretary to turn in his keys, that he was fired. Malensek asked her why, to which she replied that she did not know. Shortly thereafter, Malensek asked Wellner what he had done wrong, to which Wellner replied that he did not know, that he was probably putting his own job "on the line" by refusing to sign a warning notice to Malensek for abuse of equipment.8 Malensek then went into Wilson's office with the unsigned pink slip. Following is Malensek's testimony with respect to his interview with Wilson: A. Well, I walked in there and he goes yes, what is wrong. What seems to be your problem. And I said that is what I would like to know. And I sat down and I was holding one pink slip and he showed me two more and one was for reckless driving and the other was for wasting time in the yard. Q. What did he say about each of those pink slips? A. First of all he said abuse of the equipment or I asked him about it and he said that our yard mechanic said that I was the worst or had the worst kept truck in the yard. That I never clean it. I never wax it. And that it is just filthy all the time. It is in the worst shape of all the trucks in the yard. And I argued about that with him . I said I would like to talk to the mechanic about that and he said, no, never mind. Just forget about it . So then he went on to 8 It appears that Wellner refused because he had not observed Malensek's misconduct. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other one and he said I have outside people wh.) said you drive like a maniac on the road. And I told him that I honestly didn't think it was true, because I hadn't gone over 60 miles per hour in that rig yet. Q. Was he specific as to whom he had heard that from? A. No. Just from outside people. And then on the third one he said that I was wasting time in the yard. And you can check my charts and everything. I don't waste time in the yard. And then he was getting kind of irate and he said about your friend, Jerry Hall, he goes I am going to push this thing all the way and if I can't get him legally I am going to get him on the outside and don't you think I don't have enough influence to do it. And I said well, that is none of my business, you know. And he said, well, that's okay. And he said this. Why do you want to work here if this is such a bad place to work. And I said well, I like this place to work. I do my job. I never refused any overtime. I have driven every Saturday I have worked here. And he said well, what are you working here for and I said because I am paying off my bills and I am getting ahead of them. I said look, I have to pay my bills and he said well, I am looking for men who will work for me. And then he paused for a couple of minutes and turned to me and said would you cross a picket line for me if we got picketed? And I said I don't know. Again, I wouldn't want to get my face bashed in. And he said well, it takes guts to make a decision and I said, well, look I don't know how many decisions I have made but I have made a lot of them. I wait until the time is right and then I make them. And I haven't gone wrong too many times. So he kept asking me again, well, all I want to know is would you cross a picket line. And I said look, Jerry, I really don't know. And he said oh, you are a sly one and that was it. Malensek's above-quoted testimony is credited except for the findings set forth hereinbelow. Wilson denied that he said anything about crossing the picket line on the occasion of Malensek's termination, but admitted that he had asked him that question on an earlier occasion. This denial is credited. Wilson further testified that he was standing in the yard when he observed Malensek coming into the yard from the run which he had dust completed and that he entered at an excessive speed. Beattie, who was called as a witness by Gener^1 Counsel, corroborated Wilson's testimony as to the speed with which Malensek had entered the yard, and his testimony is credited that he told Wilson that ii it were his truck he "wouldn't put up with the guy." Beattie also credibly testified that he had never observed any other of Respondent's drivers coming into the yard as "recklessly" as Malensek had on that occasion. Malensek admitted on cross-examination that Wilson spoke to him during the course of their conversation about his discharge about the reckless manner in which he had entered the yard shortly prior thereto. It appears that with respect to the warning notices for "wasting time" and failing to keep his truck clean, Wilson had a reasonable basis for believing that Malensek had engaged in such conduct. C Concluding Findings 1. The violations of Section 8(a)(1) of the Act The record clearly discloses that the Respondent engaged in a systematic interrogation of employees as to how they were going to vote in the union election Not only is there considerable credited testimony demonstrating this, but, also, Wilson admitted that he engaged in such conduct. Based upon credited testimony, it is also found that Respondent engaged in unlawful interrogation of employees as to their union activities, the activities of their fellow employees, how they had voted in the election and whether they would cross a picket line in the event of a strike. There is no showing that any of the interrogation was for a legitimate purpose and, except for one or two instances, there was no assurance given to employees questioned that there would be no reprisals taken against them. Therefore, it is concluded that Respondent violated Section 8(a)(1) of the Act by engaging in widespread unlawful interrogation of its employees as to their protected activities. Engineered Steel Products, Inc., 188 NLRB 298, Blue Flash Express, Inc., 109 NLRB 591, 593-594; Johnnie's Poultry Company, 146 NLRB 770, 775; Ramona's Mexican Food Products, Inc., 203 NLRB No. 102; Dayton Motels, Inc. -d/b/a Holiday Inn of Dayton, 192 NLRB 674, 677. It is clear from the credited testimony that Respondent engaged in widespread threats of economic reprisals against employees for engaging in union activity and for their selection of the Union as their bargaining representa- tive, particularly threats to employees that they would be without jobs and that the Company would close down. Also, publishing an advertisement to sell trucks "due to driver trouble" and offering of trucks for sale to some of the drivers constituted further threats of loss of jobs. While Wilson did testify that he mentioned that he could not afford $6-an-hour wages in talking to the employees, it appears from the record that the statements implying inevitable loss of jobs because of the Union were not merely expressions of opinion. Cf B. F. Goodrich Footwear Company, 201 NLRB 353, and Birdsall Construction Company, 198 NLRB No. 20. Rather it appears that the statements made by Respondent of the loss of jobs and closing of the plant and the advertisement of sale of trucks were intended as threats of economic reprisals should the employees select the Union as their bargaining representa- tive DeLuca Bros Inc., 201 NLRB 327; Alamo Express, Inc. and Alamo Cartage Company, 170 NLRB 315, 317. Respondent further violated Section 8(a)(1) of the Act by granting and promising benefits in order to dissuade employees from their adherence to the Union. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964). Based upon credited testimony, it appears that Respondent gave Rosenogle a newer truck with the intent of persuading him to disassociate himself from the Union. It also appears from credited testimony that Respondent implied that it would be willing to pay employees a higher rate of wages UPLAND FREIGHT LINES, INC. 173 per hour and give them better insurance benefits if they would defect from the Union. 2. Violations of Section 8(a)(3) and (1) of the Act Based upon the credited testimony, it is found that while Respondent did have a system of issuing wntten warning notices to employees prior to the advent of the Union, it commenced a greater use of the warning notices system after the Respondent became aware of the union activity. That this was done in reprisal for said activity is particularly disclosed by the credited testimony of Dres- sler, who was told when he asked why he received a wntten warning notice "because you guys wanted to go to the Union and be legal and everything else ... the company is going to be the same way." This conclusion is further substantiated by credited testimony that Wilson was overheard saying to Wellner that if the Union came in he would follow every driver who put the Union in and get enough to fire them. Consequently, it is concluded that Respondent violated Section 8(a)(3) and (1) of the Act by expanding its implementation of its written warning notice system in reprisal for the employees' union activities. As to the termination of Rosenogle, it is found that it was motivated by Rosenogle's adherence to the Union. It appears that management bore considerable antagonism toward him and that it did not arise until its discovery of his support of the Union. He was threatened with loss of his job because of his support of the Union and three warning notices were issued to him on January 8 for conduct which dated back as far as December 27, 1972. There was an attempt to influence him against the Union by giving him a newer truck and also an attempt to influence him through his wife. His refusal to work overtime on February 10 might very well have deserved disciplinary action, and, in effect, Wellner informed Rosenogle that he was suspended by his statement to Rosenogle that it would be a long time before he was called back to work. It is found that Respondent resorted to a pretext to rid itself of Rosenogle by its claim that it assumed he quit because on the following 3 days he failed to report or answer his telephone, notwithstanding the fact that he had been indefinitely suspended. Therefore, it is concluded that Rosenogle did not, as contended by Respondent, quit his employment, but was discharged, in violation of Section 8(a)(3) and (1) of the Act, on February 16 when his vote was challenged on the ground that his employment was "terminated."9 As to the termination of Dressler, it is found that his discharge on March 10 was discriminatorily motivated. The record demonstrates that management was considera- bly antagonistic toward Dressler. It appears that while some of the antagonism was evoked by Dressler's belliger- ent personality, it also appears that said antagonism was largely caused by Dressler's support of the Union. Wilson referred to him as one of the principal instigators of the Union. While the record clearly demonstrates that Wilson was antagonistic toward employees who he knew support- ed the Union, it is found that he was particularly antagonistic toward Dressler in view of his statement that he was going to keep agitating Dressler so that Dressler would swing at him and that he could then hurt Dressler. It is further found that his antagonism toward Dressler was further intensified when Dressler filed a charge with the Board on February 28 over his 30-day suspension. While it is quite likely that Wilson was annoyed by Dressler's phone calls to Wellner and to his (Wilson' s home) during Dressler's suspension, it is found that Respondent's reliance on said annoyance and his ambiguous threat to Wellner was merely a pretext for ridding itself of Dressler because of his support of the Union. Consequently, it is concluded that Dressler's discharge on March 10 is violative of Section 8(a)(3) and (1) of the Act. As to Malensek's discharge on May 23, 1973. it is determined that the General Counsel has failed to prove by a preponderance of the evidence that it was unlawfully motivated. There is no basis for finding that Respondent believed or suspected that he was a supporter of the Union. He was not qualified to vote in the election and was not an employee during the organizational drive. While it is true that he was interrogated as to whether or not he would cross the picket line, as were many of the other employees, his answer that he did not want to get his face "bashed in" by crossing the picket line could not have reasonably indicated to Respondent that he was a supporter of the Union, but only, at the most, that Respondent could not count on him to cross the picket line if a strike were called. It appears that Respondent's complaints against his job performance were not unfounded and that his discharge was provoked by his reckless driving into the yard just before his discharge. General Counsel's witness who observed Malensek's reckless entry into the yard (as did Wilson) credibly testified that he told Wilson that if Malensek were driving his truck he would not put up with him. Also, said witness credibly testified that he had never seen another of Respondent's drivers enter the yard as recklessly. Consequently, it appears that Respondent had reasonable, lawful cause for discharging Malensek. and his statement of reluctance to cross a picket line, at the most, casts only a slight suspicion on Respondent's motive for Malensek's discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close. intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that Lloyd Rosenogle and Fred 9 It would appear that he was on suspension prior thereto 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dressler were discriminatorily discharged, it will be recommended that Respondent be ordered to offer them immediate and full reinstatement to their former jobs, or, if their jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reimburse them for any loss of pay they may have suffered as a result of their discrimina- tory discharges in the manner set forth in F. W. Woolworth' Company, 90 NLRB 289, 291-293, together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating employees with respect to their protected activities, by threats of economic reprisals against employees for engaging in union activity and for selection of the Union as their bargaining representative and by granting and promising benefits in order to dissuade employees from their adherence to the Union. 4. Respondent violated Section 8(a)(3) and (1) of the Act by expanding the implementation of its written warning notice system in reprisal for employees' union activities. 5. Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of Lloyd Rosenogle on February 16, 1973, and Fred Dressler on March 10, 1973. 6. General Counsel has failed to prove by a preponder- ance of the evidence that Respondent violated Section 8(a)(3) and (1) of the Act, as alleged in the complaint, by its discharge of Dale Malensek. Upon the foregoing findings of fact, conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER to Respondent, Upland Freight Lines, Inc., Fontana, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees with respect to their protected activities. (b) Threatening employees with economic reprisals for their activities on behalf of General Truckdrivers, Ware- housemen & Helpers Union Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or for the selection of said Union as their collective-bargaining representative. (c) Granting or promising benefits to employees to persuade them to abandon their support of said Union. (d) Discouraging membership in the aforesaid Union by discriminating against its employees in regard to hire or tenure of employment or any other term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Lloyd Rosenogle and Fred Dressler immediate and full reinstatement to their formerjobs, or, if their jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make Rosenogle and Dressler whole for any loss of pay suffered by them by reason of their discriminatory discharges in the manner set forth in the section hereina- bove entitled "The Remedy." (c) Upon request, make available to the Board or its agents for examination and copying all payroll and other records containing information concerning its backpay obligation under this recommended Order. (d) Post at its place of business in Fontana, California, copies of the notice attached hereto and marked "Appen- dix A." I I Copies of said notice on forms to be furnished by the Regional Director for Region 31, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, includ- ing 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 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint that Dale Malensek was unlawfully discharged be, and they are hereby, dismissed. 1O In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes II 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate employees with respect to their protected activities. WE WILL NOT threaten employees with economic reprisals for their activities on behalf of General Truckdrivers, Warehousemen & Helpers Union Local UPLAND FREIGHT LINES, INC. 467, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, or for the selection of said Union as their collective-bargain- ing representative. WE WILL NOT grant or promise benefits to employees to persuade them to abandon their support of said Union. WE WILL NOT discourage membership in the afore- said Union by discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOI in any other manner interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL offer to Lloyd Rosenogle and Fred Dressier immediate and full reinstatement to their former jobs, oi, if their jobs no longer exist, to substantially equivalent positions . without prejudice to their seniority or other rights and privileges. WE WILL make Rosenogle and Dressier whole for 175 any loss of pay suffered by them by reason of their discriminatory discharges. Dated By UPLAND FREIGHT LINES, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard , Los Angeles , California 90024, Telephone 213-824-7357.