Fraley & Schilling, Inc.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fraley & Schilling, Inc. and Fraternal Association of Special Haulers, Local Union 100. Cases 9-CA-7676-1-2,9-CA-7723-1, and 9-RC-10063 June 12, 1974 DECISION, ORDER, AND DIRECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 14, 1974, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' conclusions,2 and recommendations3 of the Admin- istrative Law Judge as modified herein. We agree with the Administrative Law Judge's recommendations with respect to the challenged ballots herein involved4 with the following excep- tions. The Administrative Law Judge recommended that the challenge to the ballot of Fred Bloom, a mechanic at Respondent's Mingo Junction, Ohio, terminal, be sustained on the ground that he is a part-time employee, a group specifically excluded from the stipulated unit. He further recommended that the challenge to the ballot of Robert Scharfen- berg, a mechanic at the same location, be overruled, In the absence of record evidence with respect thereto, we do not adopt the Administrative Law Judge's finding contained in the last sentence of the seventh paragraph in sec III, C, 3 of his Decision that McClure stated that he had received separate paychecks from Respondent and Lincoln Fraley in July 1973. However, this does not affect the validity of, or our agreement with, the Administrative Law Judge's conclusions. 2 The Administrative Law Judge concluded that the presence and participation of Respondent's supervisor, Kenneth Schilling, at the union organizational meeting held on March 10, 1973, constituted unlawful surveillance in violation of Sec . 8(axl) of the Act . The record clearly discloses, however, that Schilling attended the meeting solely on his own initiative and with the knowledge and consent of Respondent 's other employees. In these circumstances, we conclude, contrary to the Adminis- trative Law Judge, that Schilling's attendance does not warrant finding such violation of the Act Eldo-Craft Boat Co., Inc, 166 NLRB 280, 283; Preiser Scientific, Inc., 158 NLRB 1375, 1383 . However, as Kenneth Schilling was a supervisor, his knowledge of union activities is attributable to Respondent (Cf. Montgomery Ward & Company, Incorporates 115 NLRB 645, 647), and we find that Schilling's announcement of a pay raise at this meeting violated Sec. 8(ax 1). 3 We find merit in Respondent's exceptions to that portion of the Administrative Law Judge 's recommended remedy in which he provides that Respondent make whole any owner-operators, in addition to Charles Clark and Keith Woods, who may have had their tractor-traders discriminatonly repossessed by Respondent. Inasmuch as the record discloses no evidence regarding such action by Respondent with respect to owner-operators other than the above-named individuals, we adopt this remedial provision only insofar as it relates to the two named individuals. Further, we do not adopt the direction of the Administrative Law Judge and no exception to this recommendation has been filed. We find that the facts concerning these two employees are virtually identical. Thus, like Schar- fenberg, Bloom works so substantial a number of hours for Respondent as to approximate full-time employment, and both are eligible for group insur- ance coverage provided by Respondent. Although the Administrative Law Judge notes that Bloom has full-time employment elsewhere, the record clearly discloses that this is also true of Scharfenberg. In these circumstances, we find that the challenges to the ballots of Bloom and Scharfenberg must stand or fall together and we conclude, therefore, that Bloom should properly be included in the unit. Accordingly, we shall overrule the challenge to Bloom's ballot. The Administrative Law Judge further recom- mended that the challenge to the ballot of Mitchell Holley, an owner-operator, be sustained on the grounds that he was paid at least in part with use of the Internal Revenue Service Form 1099 and that he performed only part-time services for Respondent. As set forth in footnote 4 above, however, we do not attribute conclusive weight to the use of this form for the purposes of determining employee status under the Act. Furthermore, with respect to the Adminis- trative Law Judge's finding that Holley performed only part-time services for Respondent, the parties' stipulation at the hearing reflects the fact that the number of hours which he drove for Respondent during the representative period herein actually exceeded those of other owner-operators whom the Administrative Law Judge found eligible to vote. We therefore conclude, contrary to the Administrative Law Judge, that Mitchell Holley is a full-time that the ballots to which the challenges have been sustained be destroyed unopened. Rather we hereby direct the Regional Director for Region 9, in his discretion, to retain or dispose of said challenged ballots in accordance with the Board's usual practices. 4 In the absence of exceptions thereto, we adopt pro forma the Administrative Law Judge's recommendations to sustain the challenges to the ballots of William Davis, Kenneth E . Schilling, Robert Schilling, and Kenneth Schmitt and to overrule the challenges to the ballots of Arnold Clark, Harrison Robinson, Robert Scharfenberg, and Clifford R. Wyatt. In adopting the Administrative Law Judge 's recommendations to sustain the challenges to the ballots of Lincoln Fraley and his dnvers, we agree that Lincoln Fraley is an independent contractor and that his drivers are not employees of Respondent herein . In so doing, we find it particularly significant that Lincoln Fraley does not lease his entire fleet of tractor- trailers to Respondent, that he does a substantial percentage of his business with companies other than Respondent , and that it is he, rather than Respondent, who directs and controls his drivers. Additionally, we adopt the Administrative Law Judge's recommenda- tions to sustain the challenges to the ballots of Dean Perkins , Roy O. Ross, and Landis Wandling because these owner -operators perform part-time services for Respondent. We do not adopt the Administrative Law Judge's finding that these individuals were not employees of Respondent solely because they were paid, either wholly or in part, with use of the Internal Revenue Service Form 1099, a manner of lump-sum payment without deductions for Social Security contributions or Federal withholding taxes. Contrary to the Administrative Law Judge, we do not consider the method of payment by Respondent to its owner-operators, standing alone, to be determinative of the issue of the latters' employee status for the purposes of the Act. 211 NLRB No. 49 FRALEY & SCHILLING, INC. 423 employee of Respondent and shares a community of interest with other owner-operators sufficient to warrant his inclusion in the unit. Accordingly, we hereby overrule the challenge to his ballot. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Fraley & Schilling, Inc., Letart, West Virginia, and Mingo Junction, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any employee concerning his or other employees' union or other lawful organization- al membership, affiliation, activity, sympathy, or desire. (b) Putting into effect, or directly or indirectly promising, assuring, or holding out in prospect to any employee, any wage increase, economic better- ment, or other benefit or thing of value conditioned upon his withdrawal from or rejection of, or in order to induce him or other employee to refrain from, union membership, affiliation, sympathy, support, assistance, or activity, but nothing herein shall be construed to require the Respondent to revoke any wage increase or other benefits which have been put into effect prior to this Order. (c) Discharging, suspending, or laying off, or directly or indirectly threatening any employee with discharge, loss of employment, layoff, economic or other loss, harm, detriment, or reprisal to himself or other employee to discourage membership in or lawful activity on behalf of Fraternal Association of Special Haulers, Local Union 100, or any other labor organization of Respondent's employees. (d) Penalizing any truck owner-driver by discrimi- natorily repossessing said owner-driver's truck and equipment and failing to provide him with employ- ment because of his union membership or exercise of any right under said Act, and so as to discriminate against him in regard to the hire and tenure of his employment or any term or condition of his employment by reason of his union membership or his exercise of any right under the Act. (e) Directly or indirectly indicating to its employees that collective bargaining, or employees' exercise of their right to bargain collectively, is and will be fraught with physical or economic peril at Respon- dent's hands, or futile and of no avail, or that its business will be shut down and employees discharged or laid off in the event of unionization. (f) Threatening, warning, advising, or notifying any employee engaged in an unfair labor practice strike that said employee or any other such striking employee will or may be discharged or permanently replaced or deprived of any economic benefit accruing in connection with his employment or unless said employee abandons said strike and returns to Respondent's employ. (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their right of self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions which are necessary to effectuate the policies of the Act: (a) Offer to Devillo Hubbard, Arnold Clark, and Harrison Robinson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges; and make each of them whole for any loss of pay or income suffered in consequence of the discrimination against him, in the manner set forth in the "Remedy" section of the Administrative Law Judge's Decision. (b) Upon unconditional application, offer to Charles Clark, Keith M. Woods, and all other striking employees immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employee hired subsequent to the day the strike began on April 2, 1973. In the event that there is not then sufficient work for all such striking employees who apply for reinstatement, such jobs as are available shall be filled from among said striking employees seeking reinstatement, in accordance with their seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business. The Respondent shall place those employees, if any, who apply for reinstatement and for whom no employment is available after such distribution, on a preferential hiring list, with priority in accordance with such system of seniority or other nondiscrimina- tory practice heretofore applied by the Respondent in the conduct of its business and, thereafter, offer such employees reinstatement as such employment becomes available and before other employees are hired for such work. (c) In the event that the Respondent fails so to reinstate or to place upon a preferential hiring list as 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided herein any striking employee who has or shall make unconditional application for reinstate- ment, the Respondent shall make whole such striker in the manner set forth in the Remedy section of the Administrative Law Judge's Decision, for losses sustained commencing 5 days after the application for reinstatement until the date of reinstatement or of placing his name upon such preferential hiring list. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and other sums due and extent of compli- ance with the terms of this Order. (e) Post at its Letart, West Virginia, and Mingo Junction, Ohio, terminals copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Re- spondent 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. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. DIRECTION It is hereby directed that the Regional Director for Region 9 shall, within the time prescribed by the Board's Rules and Regulations open and count the ballots of Fred Bloom, Arnold Clark, Mitchell Holley, Harrison Robinson, Robert Scharfenberg, and Clifford R. Wyatt and, thereafter, prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. If the revised tally discloses that a majority of the votes have been cast for, or against, the Petitioner, the Regional Director shall issue the appropriate certifi- cation in accordance with the Board's Rules and Regulations. S In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge, at which all sides had the chance to present evidence and arguments, the decision is that Fraley & Schilling Inc., has violated the National Labor Relations Act. We have therefore been ordered to post this notice and carry out its terms. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, help or be helped by unions To bargain collectively through a repre- sentative of your own choice To act together with other employees to bargain collectively or for other mutual aid or protection; and If you wish, not to do any of these things. Accordingly, we hereby assure you: WE WILL respect all of your rights under the National Labor Relations Act. WE WILL NOT, in violation of the National Labor Relations Act, question any employee about whether he or any other employee has joined or is thinking of joining a union, or about what he or any other employee is doing or thinking of doing in the way of union activity. WE WILL NOT place into effect or promise you any pay raise or other economic advantage in order to induce you not to join or help a union. WE WILL NOT discharge, lay off, terminate, suspend, or take any other retaliatory or discrimi- natory action or make any threat against any employee or truck owner-operator because he has joined or helped, or is thinking of joining or helping, a union, or trying lawfully to get other employees to join or help. WE WILL NOT, in violation of the National Labor Relations Act, discourage membership in or giving help to or taking help from Fraternal Association of Special Haulers, Local Union 100, or any other labor organization of our employees or which our employees may wish to join or to help or take help from. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization; to form, join, or assist any labor organization ; to bargain collec- tively through representatives of your own choos- ing; to engage in concerted activities for the FRALEY & SCHILLING, INC. 425 purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL offer the following persons immediate and full reinstatement to their former jobs (or substantially equivalent jobs), without prejudice to their seniority and other rights and privileges; and we will also pay them backpay, with interest, for any wages or other sums lost by them: Devillo Hubbard Arnold Clark Harrison Robinson WE WILL, upon application, reinstate to their former or substantial equal employment or status, without affecting their payrates, seniority, or other rights and privileges, Charles Clark, Keith M. Woods, and any other employees and truck owner-operators who went on strike on or after April 2, 1973, and, to the extent necessary to accomplish that, WE WILL discharge all employ- ees, replacements, or substitutes hired since them. And, in the event we fall to reinstate any striking employee or truck owner-operator who applies for reinstatement, WE WILL compensate each and every such person by paying to him or them moneys covering any and all losses (including backpay and interest) sustained commencing 5 days after the application for reinstatement. In the event there are insufficient jobs open for the purpose of such reinstatements, WE WILL set up and hire such striking employees and truck owner-operators from a preferential hiring list. All of you are free to join or not to join Fraternal Association of Special Haulers, Local Union 100, or any other union, as you see fit, without any interference, restraint, or coercion from us in any way, shape, or form. FRALEY & SCHILLING, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive I Dates throughout are 1973 unless otherwise specified. Case 9-CA-7676-1 & 2 Charge in Case 9-CA-7676- 1 filed March 28 (1973), charge in Case 9-CA-7676-2 filed April 4, amended charges in Cases 9-CA-7676-1 & 2 filed April 23, complaint issued May 17 Case 9-CA-7723- 1 Charge filed April 23, amended charge filed May 7, second amended charge filed June 20 , complaint issued June 26 Case 9-RC-10063 RC petition for certification of representative filed by 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 Office Building, Suite 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION Preliminary Statement ; Issues STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq. ("Act") was tried before me in Point Pleasant, West Virginia, and Gallipolis, Ohio, on July 24-27, 1973, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and contentions, with the record remaining open at the request of General Counsel because of the failure of a witness to appear. Thereafter, upon unopposed application of the General Counsel, received on August 3, to rest his case, close the record, and set a date for filing of briefs, the record was closed by my order of August 6. Briefs were subsequently received on September 10 and 11 after extension of time granted on application of counsel. The voluminous record and briefs have been carefully considered. Chief among the numerous issues presented are: Case 9-CA-7676-1 & 2: whether Respondent Employer violated Section 8(a)(1) and (3) of the Act through unlawful interrogation and surveillance of, economic threats against, and promises to employees ; through wage increase to deter unionization; and through discharging and failing to reinstate employees because of union activities and sympathies; and whether a stake subsequent thereto was caused or prolonged by Respondent's unfair labor prac- tices; (2) Case 9-CA-7723-1: whether Respondent violated Section 8(a)(1) through further economic threats to deter union activities and sympathies; (3) Case 9-RC-10063: resolution of 19 separately challenged ballots in the Board secret-ballot representation election. Upon the entire record and my observations of the testimonial demeanor of the witnesses I make the follow- ing: FINDINGS AND CONCLUSIONS 1. JURISDICTION At all material times, Respondent Fraley & Schilling, Inc., has been and is an Indiana corporation engaged in the business of contract hauling and transportation. In the course and conduct of that business during the representa- tive year immediately preceding issuance of the com- Union March 28, stipulation for certification upon consent election, dated April 19 and 21, approved by Regional Director April 26 , representation election conducted under Regional Director's auspices, May 10-24 by mail, resulting in 19 challenged ballots out of 31 cast , Regional Director's order directing hearing, consolidating cases, and transferring case to the Board, June 28 426 plaints, Respondent performed services valued in excess of $50,000 for customers located outside of the State of Indiana ; and, during the same period , Respondent had a direct inflow in interstate commerce of goods and materials valued in excess of $50 ,000, purchased by it and caused to be shipped to it in the State of Indiana directly from points outside of Indiana. I find that at all material times Respondent has been and is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that the Charging Party-Petitioner Union has at all those times been and is a labor organization as defined in Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. General Nature of Respondent's Business Operations Respondent Fraley & Schilling, Inc., an Indiana corpora- tion, is a trucking contract carrier maintaining two terminals : one in Letart, West Virginia, and the other in Mingo Junction, Ohio, a distance of about 165 miles. Additionally, at times Respondent stores vehicles at the Rushville, Indiana, premises of Fraley Truck and Imple- ment Sales, Inc. (a farm machinery and GMC truck sales and service enterprise wholly owned by Respondent's principal , Kimber J. Fraley, and his wife, who live in Rushville), but the Rushville, Indiana, location, which is some 250 miles from Letart and 300 miles from Mingo Junction, is not nor is it regarded as a terminal of Respondent. In the past Respondent has apparently hauled metals principally for Foote Mineral Company , a ferroal- loys and silicon metals dealer headquartered in Exton, Pennsylvania, with locations in Steubenville , Ohio, as well as in or near Letart (known as "Graham Station") and also Mingo Junction, and whose products are distributed mainly in twelve States; Foote has no premises in or near Rushville. Respondent is not, however, restricted to hauling for Foote. Respondent (Fraley & Schilling, Inc.) is owned half by Earl W. Schilling, its president, and half by Kirnber J. Fraley ( the principal of Fraley Truck and Implement Sales, Inc., located in Rushville), its vice president; Ruby Schilling, Earl Schilling's wife, who lives and works with her husband in Mingo Junction, serves as its treasurer and secretary . All three are active in Respondent's operations. Earl W. Schilling operates Respondent's Mingo Junction terminal, while Charles L. Wyatt runs Respondent's Letart terminal as its manager and dispatcher. In its operations-as will be extensively described below (III) in connection with issues presented in the consolidat- ed representation proceeding-Respondent utilizes vari- ous categories of truckdrivers, including some directly employed by it under a conventional employer-employee relationship ("company drivers") and others ("owner- operators" or "brokers") who drive under a leaseback arrangement a truck sold to them by Respondent (or some it. 2 Holley was neither called on to corroborate this nor produced to deny J An employer's office has been characterized as its formal or impressive if not ominous "locus of final authority." General Shoe Corporation, 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other corporation owned in whole or part by a principal'of Respondent) in a security arrangement such as a condi- tional sale; some in the latter category may , in turn, hire or have a driver other than themselves to operate such truck or trucks. As of March 1973, Respondent itself directly owned and operated at least around 10 trucks, 16-18 flats, and 6 dump trailers. In addition to the foregoing, each of Respondent's principals (i.e., Earl W. Schilling and Kimber J. Fraley) has an adult son who, as will appear, is involved in this case; i.e., Kenneth E. Schilling, who, unlike other employees there, works primarily in the maintenance shop or garage at Respondent's Letart terminal at a relatively high fixed salary, and at times serves as a stand-in there for Letart Terminal Manager Charles Wyatt, but also at times in the same capacity for his father Earl W. Schilling at the Mingo Junction Terminal; and Lincoln Fraley (son of Respon- dent's vice president, Kimber J. Fraley), who lives in Rushville (250 miles from Letart and 300 miles from Mingo Junction) and himself owns 4 tractors and 5 trailers leased to Respondent, with drivers hired by Lincoln Fraley, and who hauls also for Fraley Truck and Implement Sales, Inc. (his parents' enterprise located in Rushville) among others . For some unexplained reason, according to Lincoln Fraley he conducts his Rushville trucking business under the firm name and style of "Fraley Truck & Implement," a name highly similar to that of his parents' Rushville sales and service organization. B. Interference, Restraint, and Coercion: Facts as Found 1. Interrogation, threat of violent interference, economic blandishments, and threats to thwart employees' protected concerted activities Matters to be described have been culled from the record IchronologicallyI so as to afford a view of events in the order in which they transpired. Initial contact with the Union (Charging Party-Petitioner herein) was made in early February 1973, by Respondent's truckdriver Harrison RRobinson-lone of the dischargees here-on behalf I of 'or I with I a I view toward organizing Respondent's drivers. Around March 1, when the Union was again apprised or reminded-this time through its steward of across-the-road metal alloys truckdrivers of a nearby trucking company, like Respondent, hauling for Foote Mineral Company-of the desire of Respondent's truckdrivers to organize, an invitation was extended to the latter to attend a union meeting of the other company's truckdrivers at nearby Marietta, Ohio, on the evening of March 10. At around the same time, i.e., March 1, Respondent's truckdriver Harrison Robinson, who had made the initial contact with the Union , was questioned by Respondent's Letart Terminal Manager Charles J. Wyatt, in the presence of fellow truckdriver Holley,2 in Wyatt's offices as to what Robinson "thought about the Union," to which Robinson, later discharged, candidly replied that he NLRB 499, 502. All other things being equal, it cannot be gainsaid that the questioning of a truckdriver in the employer's office concerning union matters takes on a significance it might not otherwise have. k FRALEY & SCHILLING, INC. was "for it 100%." This episode, as credibly testified to by Robinson at the trial, stands unchallenged by Wyatt. Indeed, the complaint allegation concerning it is undenied in Respondent's answer, which concedes in so many words that "Charles Wyatt may have inquired of an employee about his interest in the Union on March 1, 1973" (Answer, par. 5(a)(i)). I accordingly find the complaint allegation (Complaint,Case 9-CA-7676-1,2, par. 5(a)(i)) established by substantial credible evidence. The complaint further alleged (id., par. 5(a)(iv)) that on March 3-a few days after the described interrogation of Robinson by Letart Terminal Manager Wyatt-Wyatt uttered the coercive remark to Robinson that if he (Wyatt) had known that a union representative had been at the terminal he would have left him lying in the middle of the floor-none other than a coercive threat of uncalled-for physical violence. Testifying concerning this, Robinson credibly swore that on the day in question, the union steward employee at the neighboring trucking company called for him at the Letart terminal garage and he and a few fellow employees then went to a nearby restaurant, where they were observed by other employees of Respon- dent as they discussed attendance at an upcoming union meeting of the other company's truckdrivers on March 10 (described below); and that it was upon Robinson's return to the garage that Respondent's Letart Terminal Manager Wyatt sounded off to him that "If I'd [Wyatt] known that son of a bitch was from F.A.S.H. [Union], I'd have left him lying in the middle of the floor." The episode is undisputed by Wyatt, notwithstanding his having testified as Respon- dent's witness. Accordingly crediting Robinson's testimo- ny, I find the complaint allegation established by substan- tial credible proof. Further concerning Respondent's Letart Terminal Man- ager Wyatt, it is alleged (id., par. 5(a)(ii)) that on March 7 he again interrogated an employee, and deprecatingly recommended a different union. Although Respondent's answer (id., par. 5(a)(ii)) does not unequivocally deny the entire allegation of the complaint, and Wyatt's testimony is merely to the effect that he cannot recall the incident or all of it, it appears-from Wyatt's testimony-that the incident involved or may have involved Respondent's driver William Davis (still another dischargee), who, however, did not testify at the trial. Under the circum- stances, I find this allegation not established. It will be recalled that around March 1 an invitation had been extended to Respondent's organizing truckdrivers to attend the regular union meeting of the truckdrivers of a neighboring plant on March 10 at Marietta. Conceding through its president Earl W. Schilling at the trial that at least as early as March 10 it was aware that union activity by its employees was "in the wind," Respondent called and held a meeting of its own with its truckdrivers and mechanics on the morning of the same day, March 10 (a Saturday), at its Letart terminal. At that meeting, attended by Respondent's drivers and mechanics 4 and its principals 4 It is noted that neither Lincoln Fraley nor any of his drivers was there. 5 At that time, the "company drivers" (i.e., Respondent's direct truckdriver employees) were being paid 20 percent of a "flat load" and 22 percent of a "dump load" gross income or price, whereas the truckdriver "owner-operators" or "brokers" were receiving 72 percent of the price of each type of load . A "flat load" is a load boxed on skids removed at 427 Earl Schilling and Kimber J. Fraley, as well as Kenneth Schilling and Letart Terminal Manager Wyatt, Fraley indicated that Respondent had learned there was "dissatis- faction" and wanted to know why. When the drivers (of each category) indicated they wanted more money, they were informed by Fraley that Respondent could not afford to and would not give it .5 Other sources of dissatisfaction were, then discussed, following which the drivers caucused privately (without Kenneth Schilling; cf. infra, later union meeting) and formulated their demands-an increase of 3 percent on "flats" and 1 percent on "dumps" for "company drivers" and an increase of 2 percent on each type of load for "owner-operators" or "brokers." When the drivers reassembled and through their spokesman Devillo Hubbard-another dischargee herein-presented these demands to Respondent, they were summarily rejected by Respondent, terminating the meeting. On the evening of the same day, Saturday, March 10, Respondent's drivers attended the regular union meeting at Marietta, mentioned above, of the drivers of the nearby trucking company, to which they had been invited. At this meeting there were about 15 drivers of the neighboring plant and about 10 of Respondent's drivers. The regular meeting of the neighboring truckdrivers was followed by an organizational meeting of Respondent's drivers. During the course of the general orientations and discussion which ensued, it was pointed out that Kenneth Schilling, a son of Respondent's president and principal Earl Schilling-en- trusted with supervisory responsibilities, as shown below -was there, presumably serving at least to dampen if not inhibit free discussion; but, notwithstanding indications that he should withdraw, he remained. During this discussion, Respondent's driver Devillo Hubbard-also, like Harrison Robinson (supra) a dischargee here-partici- pated actively as the designated spokesman of Respon- dent's other drivers; reviewing their problems, Hubbard pointed out among other things that Respondent had "flatly refused" their request for a raise. Union President William J. Hill advised them that if 30 percent joined the Union they could request an NLRB election, but that if over 50 percent joined they could seek recognition directly. Kenneth Schilling indicated that Respondent had 16-18 truckdrivers. After a brief private caucus among Respon- dent's employees (still with Kenneth Schilling participating and, to no avail, informing the drivers that his father and Fraley had decided to give them a .1-percent raise) the meeting was resumed, the employees indicating through their spokesman Devillo Hubbard that they would join the Union, whereupon all except Kenneth Schilling and Dale Stouts executed union membership cards-to the tune of Kenneth Schilling stating to them, "My dad's not going to like this" and "Dad's [i.e., Earl Schilling] going to be awfully mad about it"-paid union initiation fees and dues, and signed a petition. The employees then elected Devillo Hubbard as their steward and Charles Clark as assistant steward or committeeman. Union President Hill destination; a "dump load" is a load , such as alloy, merely dumped out at destination. 6 Testifying as Respondent's witness, its Vice President Kimber J. Fraley on cross-examination identified Stout as the driver of a truck owned by Fraley's son Lincoln Fraley (Rushville, Indiana, trucking company). 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD urged them to endeavor to enlist other employees into the Union so as to assure the largest possible majority, supplying them with union organizational 1 yerature, membership application cards, and return envelopes. Before they left, however, Kenneth Schilling and Dale Stout, stating that they had attended the meeting only for informational purposes, warned the others that they should not have joined the Union, Schilling pointedly stating that "When my.dad [i.e., Earl Schilling, Respondent's president and principal] finds out who all joined, he's going to be awfully mad." At this, Hill reminded Schilling and Stout that employees had the legal right to join a union. It is alleged in the complaint (Case 9-CA-7676-1,2, par. 5(c)) that the presence and participation of Kenneth Schilling at Respondent's employees' organizational meet- ing on March 10, as described, constituted employer surveillance of employees' protected concerted activities. Particularly in view of Kenneth Schilling's conceded attendance, the nature of his participation, his supervisory status in Respondent's organization, and Respondent's learning from him of what transpired there,? I find that this allegation has been established by substantial credible evidence. Further in connection with the described March 10 evening union organizational meeting of Respondent's employees, following Respondent's own March 10 morn- ing meeting with them in which it had flatly rejected their demands for a pay increase and refused to give any, it will have been noted that Kenneth Schilling, the son of Respondent's president and principal, who attended and participated in the employees' later private meeting even when it was suggested he leave, not only repeatedly warned about his father's displeasure at the latter meeting but also conveyed to the employees there that his father and Respondent's other principal (Kimber J. Fraley) had decided to give them a 1-percent raise. If made, such a statement on such an occasion could only have been designed and calculated to dampen the organizing employ- ees' ardor for unionization and to wean them away from joining the Union. Upon the basis of credited testimony of General Counsel witness Devillo Hubbard to that effect -unchallenged by Kenneth Schilling, although called as Respondent's witness, or by Dale Stout who attended that meeting with Kenneth Schilling but was unexplainedly not called by Respondent to testify, and in light of the admissions of Respondent's witness Earl W. Schilling during cross-examination, (1) that his co-principal Kimber J. Fraley had informed Kenneth Schilling that they had decided to give the drivers a 1-percent raise on "flats," (2) that following the March 10 union meeting his son (Kenneth) informed him that he had told the employees at that meeting about the 1-percent raise, and (3) that Respondent in fact placed such a raise into effect as of March 10, 1973-I find that Respondent did indeed, substantially as alleged in the complaint (Case 9-CA-7676-1, 2, par. 5(d)), on March 10, hold out, promise, and grant to its employees a pay increase in order to discourage union activities and sympathies. After the March 10 union meeting, Respondent's drivers continued their organizational activities . Within 5 days, the Union-which had received 7 or 8 signed membership cards at the March 10 meeting 8-received 3 more signed membership cards9 from Respondent 's driver spokesman Devillo Hubbard, who a few days later (March 18) notified Union President Hill that he had been interrogated by Respondent and fired from his job. Two days later (March 20) Devillo Hubbard notified Hill that Respondent 's driver William Davis, another outspoken union advocate, had also been terminated. These and other employee termina- tions are separately considered below. The complaint (Case 9-CA-7676-1, 2, par. 5(b)(i) and (ii)) alleges that, meanwhile, on or about March 14 Respondent's President Earl Schilling interrogated an employee at its Mingo Junction Terminal concerning his union sympathies and activities, and threatened to shut down if the Union became the employees' collective- bargaining agent . The answer (par. 5(b)(i)) "admits that Earl W. Schilling on March 4,1973 [sic]',,may have inquired of an employee about his interests in the Union" and denies the threat to shut down. Testimony of Earl Schilling as Respondent's trial witness, on cross-examination, indicates only that the episode in question occurred on March 14 and involved driver William Davis, who, as already indicated in another connection, failed to testify at the trial ; Earl Schilling himself testified only that in the course of a discussion concerning the Union which may have been started by Davis (Schilling professed to be unable to recall who started the conversation), when he (Schilling) asked Davis how he felt about the Union, Davis said he was satisfied with it and volunteered that others had also joined . Conceding that he remarked that "I Schilling didn't see how we could afford the union," Schilling flatly denied he said the Company would close if the Union came in. Under the circumstances, in the absence of any testimony by Davis concerning the episode alleged in the complaint, I find the described allegations not established by substantial credible evidence in accord- - ance with General Counsel's burden. The complaint ( id, par. 5(a)(iii)) further alleges that on (March 15 Respondent's Letart Terminal Manager Charles Wyatt also threatened that Respondent would close its 'doors if the Union became its employees ' bargaining agent. This allegation is denied in the answer . At the trial, General Counsel's impressively credible witness Arnold Clark swore that, in the conversation in question, in response to Clark's query as to what Wyatt thought about a union, Wyatt said, "[Not] too much" and added that ,Respondent would have to lay off employees and "close the doors" if the Union came in. Concerning the foregoing, ILetart Terminal Manager Wyatt, testifying as Respon- Ident's witness, swore merely that he is unable to "recall" ,any discussion with Clark on March 15 and that he is Tunable to "remember exactly" the words attributed to him r Testifying as Respondent's witness, its President Earl W. Schilling 9 Ibid. According to Hubbard, these 3.additional cards made a total of conceded on cross-examination that his son Kenneth informed him about 11 (including one mechanic) out of 17 drivers (5 "company drivers" and. 12 the employees' March 10 union organizational meeting and "some that was "owner-operators" or "brokers"-excluding Lincoln Fraley and his Rush- there." ville crew) in Respondent's employ or pay at that time. 8 Undisputed testimony of General Counsel witness Devillo Hubbard. FRALEY & SCHILLING, INC. 429 by Clark, which he (Wyatt) nevertheless concedes "may have been said" but which he is unable to "remember now." However, following these possible memory lapses, when Wyatt's pretrial statement was displayed to him for the purpose of refreshing his recollection he readily conceded that on the occasion in question he had indeed told Clark that "if the union got in the company would have to close the doors." Upon this record, I find that Respondent through its supervisor and agent Letart Terminal Manager Charles Wyatt threatened plant closure in the event of unionization , substantially as alleged in the complaint. 2. Discharges of employees a. March 16: discharge of Devillo Hubbard It will be recalled that Devillo Hubbard served as the designated spokesman of Respondent's drivers when Respondent assembled them to meet with it on March 10, as well as at the drivers' own organizational meetings and that he was elected as their union steward. The complaint (Case 9-CA-7676-1, 2, par. 6) alleges that Respondent discharged Devillo Hubbard on March 16, and has failed and refused to reemploy him since then, because of his union activities and sympathies and in order to discourage union membership. Respondent's answer (par. "6") alleges that Hubbard was merely "laid off" because of "anticipat- ed loss of work" which it feared would result from what it was informed "would be [a] cut back" of work from a planned "phasing out" of one of the plants of its customer Foote Mineral Company. Devillo Hubbard worked as an over-the-road "Company driver" 10 of Respondent continuously from August 1971 until his precipitate discharge on March 16, 1973. In the intervening period he had never been reprimanded or criticized in regard to his job performance.11 He worked out of Letart terminal under Terminal Manager Wyatt, who hired him, although it was Respondent's President Earl Schilling who fired him. Like other company drivers, Hubbard usually drove the same truck, although he had been successively "promoted" to better or newer trucks; at the time of his discharge, this was a 1972 GMC Diesel Astro, of some 10 trucks and 16-18 flats, 6 dump trailers, and other vehicles and rigs in operation by Respondent. Mention has already been made of Hubbard' s acting as the drivers' spokesman at the Company-convoked meeting on the morning of March 10, and of his attendance at the union organizational meeting on the evening of the same day (March 10), where he was elected as the drivers' union steward. Less than a week after these events, on March 16 (Friday) Hubbard was on his way back to Letart terminal 10 I.e., as explained above, "company drivers"-as distinguished from "owner-drivers" or "brokers"-are conventional employees of Respondent. 11 Indeed, Hubbard's testimony, corroborated by his logbook, shows that he was actually utilized to drive in excess of the alleged legal maximum of 70 hours per week. 12 I.e., Arnold Clark, Humble, and William Davis. 13 In the total context this belies Schilling's excuse to Hubbard that "We're selling the truck" as an indication of no truck for Hubbard to drive, as the reason for his discharge. 14 See fn. 13, supra. 15 Particularly after observing Schilling's equivocating and evasive after delivering a load at Lebanon, Pennsylvania, a run of around 400 miles. In accordance with usual practice, when he was about halfway back, he telephoned in to Letart, where Respondent's President Earl Schilling-without previous notice or indication of any kind- announced to Hubbard, "We're going to have to let you go, Hubbard. We're selling the truck." Hubbard responded, "Well, thank you for the, such a long notice." When Hubbard reached Letart with the truck, Terminal Manager Wyatt knew about Hubbard's precipitate discharge. At the time of his discharge, Hubbard was No. 2 "company driver" in order of seniority-with three "company drivers" with less seniority; 12 also, Respondent had some driverless trucks on hand at this time.13 In all of his term of employment, Hubbard knew of no other instance where any driver lost his job because the particular truck he was driving at the time was sold;14 as a matter of fact, Respondent has utilized a seniority system, in that drivers (like Hubbard himself) have been offered the opportunity to "step up" to newer trucks in the order of the drivers' seniority. Notwithstanding Respondent's cur- rent allegation in its answer that Hubbard was "laid off because of anticipated loss of work" since Respondent "was informed . . . that its services would be cut back by [Foote Mineral Company] due to the phasing out of one of their plants," Hubbard-a straightforward and utterly convincing witness-testified credibly that at no time was any cutback or reduction by Foote so much as mentioned to him by Schilling or anybody else, the only "reason" given to him being that Respondent was selling the particular truck he was then driving. Respondent's President Earl Schilling testified in answer to Hubbard's foregoing account of his discharge. Notwith- standing Respondent's allegations in its answer as set forth above, Schilling swore that Hubbard was discharged because of Respondent's need to cut back in view of "a financial obligation to meet"; and that when his coprinci- pal Kimber J. Fraley (coprincipal with Fraley's wife in the aforedescribed truck sales business) asked him if he was interested in selling a year-old truck with low mileage, he answered in the affirmative, and since the truck Hubbard was at that time driving met that description he "laid off" but did not "fire" Hubbard.15 Professing at the trial not to know which of his Company's drivers had seniority, Schilling did not dispute that at the time in question Hubbard was indeed No. 2 in seniority of four "company drivers," of whom two (Hubbard and Arnold Clark, both union activists) were terminated and a third (McMillan) went on strike, with only one (Homol) still there. Schilling conceded that at the time of Hubbard's termination he was aware of Hubbard's union activity. Schilling further conceded that at the time of Hubbard's termination testimonial style, I am wholly unconvinced by Schilling's current semanti- cism that he merely "laid off" but did not "fire" Hubbard. Crediting Hubbard, I find that Schilling did indeed fire Hubbard. That in any event no particular words need be used to constitute a discharge . See, e.g., N.L.R.B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841 (C.A. 8, 1964), "The fact of discharge of course does not depend on the use of formal words of firing. It is sufficient if the words or action of the employer 'would logically lead a prudent person to believe his tenure had been terminat- ed' "; Blackmun, J. Furthermore, at no time has Hubbard been recalled; indeed, Respondent expressly refused to reinstate him, notwithstanding new hires. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had six GMC Astrotrucks of essentially the same type as that operated by Hubbard-including two 1973 models (operated by Arnold Clark, another union activist also terminated as described infra, and Homol), a 1971 model (operated by McMillan), and the 1972 model operated by Hubbard-and he claims to be unaware of whether Fraley had any comparable trucks as the one operated by Hubbard, on his lot for sale. Schilling also conceded that Hubbard could have been transferred to or designated to drive a "broker" (i.e. not company-owned, but leased back to Company) truck at the time of the alleged "sale" of the particular truck Hubbard was operating; and that it is Respondent's usual practice to transfer to another truck a driver who does not have a truck to drive because, for example, it has broken down.16 Although Schilling first denied hiring any driver after Hubbard was fired ("laid off," in Schilling's usage), on further questioning he conceded 17 that Respondent may indeed have hired one Shubert as a driver in March, as well as one Mitchell Holley, Jr., allegedly in February but not appearing on the payroll until March 14, 2 days before Hubbard's termination; 18 and that the truck which Holley started driving in June (1973) was an Astro 1971, although Respondent offered no such job to Hubbard. On top of his contradictory, evasive, and utterly unimpressive testimoni- al performance concerning Hubbard's discharge, asked during cross-examination whether Hubbard was laid off for any reason other than "anticipated loss of work" relating to a supposed phasing out of some work from a feared shutdown of a plant of Foote Mineral Company, as alleged in the answer, Schilling's response was, "No." It seems highly unlikely that if this had indeed been Schilling's real reason for terminating Hubbard he would not have told him so. Schilling's coprincipal in Respondent, Kimber J. Fraley, also testified in justification of Respondent's termination of Hubbard. With regard to the feared retrenchment by Foote Mineral Company, Fraley testified that a planned phaseout of Foote's Mingo Junction (i.e., Steubenville) plant "in 1973" was scheduled to be completed by "January, 1974 " (i.e., 10 months after Hubbard's termina- tion ), at which time Respondent could "expect" a 30- percent drop in Foote haulages. On cross-examination, however, Fraley conceded that in 1973 up to the time of Hubbard's termination there had been no decline in Respondent's business. Fraley further conceded, after some equivocation, that Respondent is at liberty to obtain business elsewhere in the event of a decline of its business from Foote, since it is not contractually limited to serving Foote alone; moreover, that Respondent is at liberty to pick up return loads from any source (even on outgoing trips for Foote), on tripleases with other truck carriers (with payments on such return loads made by consignors is Since, as conceded by Schilling, Respondent had five such other trucks and only three other "company drivers" at the time, it obviously had extra trucks around for Hubbard to drive. 17 On this (as well as other bases) I was constrained to revise my previous impressions as to Earl Schilling's credibility, and to form an adverse opinion. 19 An all-party stipulation entered into on the record near the conclusion of the trial establishes the facts , as above described, concerning Shubert and Mitchell Holley, Jr., to be true. or consignees to the other truck carriers, who in turn compensate Respondent). Notwithstanding the potentially critically important nature of the issue , as raised by Respondent in its answer (par. "6") that the reason Hubbard was "laid off" was the anticipated decline in Foote business, Respondent failed to produce any records at the trial to establish such a fact, nor did it offer any explanation for its failure to do so . Finally, before leaving the witness stand, Fraley-an extremely unconvincing witness, in part because of continued evasiveness and contradictions-conceded that Respondent's haulings for Foote have not in fact declined (notwithstanding Hubbard's termination for that alleged reason months before ). With respect to the alleged "sale" of the particular truck being driven by Hubbard as another supposed "reason" for Hubbard's termination, Fraley shed light on this as well-but not favorably to Respondent's contention, since Fraley conceded that Respondent did not infact sell the truck that Hubbard had been operating, but that Hubbard was nevertheless never restored to his job.19 Against these equivocating, evasive, contradictory, and unpersuasive testimonial accounts of Schilling and Fraley, and after comparing testimonial demeanor , I have no hesitation in preferring and crediting the testimony of Hubbard. In so doing and finding, as I do, that General Counsel has sustained his burden of proof by a clear preponderance of substantial credible evidence that Hub- bard was indeed discharged because of his union activity, I also give weight to the fact that Hubbard was an experienced driver with an unblemished record ; that he was second in seniority among Respondent's "company drivers" ; that although he was fired, junior drivers were retained; that notwithstanding his discharge, other drivers were hired, but he was not recalled ; that he could readily have been assigned to another truck, either company- owned or "broker" owned (i.e., leased to Respondent); that, notwithstanding Respondent's stated excuse for firing him, the truck Hubbard was driving was concededly not actually sold ; that although readily available to Respon- dent, not only was no convincing proof produced to the contrary, but it was conceded by Respondent that its business from Foote-alleged in its answer as the reason it terminated Hubbard-has not in fact declined; and, finally, that Hubbard was precipitately and with no advance notice discharged only after his assumption of elected leadership in the drivers' union organizational activities which were-as will be more particularly shown below-held in odium by Respondent .20 Under these circumstances, the only rationally acceptable explanation for Hubbard's discharge was his union leadership activi- ties, and I so find. 19 In what may have been an attempt to reconcile his testimony on this subject with that of Schilling (described above), Fraley testified that he did inquire whether the truck Hubbard was driving was available for resale, after he (Fraley) had sold a truck in his GMC truck sales agency, but that the truck Hubbard had been driving has never in fact been sold. 20 "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort. " N.L.R.B v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). FRALEY & SCHILLING, INC. b. March 19: discharge of William Davis According to the complaint (Case 9-CA-7676-1, 2, par. 7), Respondent also discharged and has failed to reinstate its driver William Davis because of his union membership, activities, and sympathies. Respondent's answer denies this and additionally states that Davis was merely a temporary employee filling in while the truck of one of its "brokers" (Wandling) was being repaired, and that after its repair the "broker" decided to drive his own truck instead of having Davis drive it. Whatever the facts of this matter or the merits of this defense may be, Davis did not appear to testify at the trial; nor was his case established independently of his testimo- ny. At General Counsel's request at the conclusion of the remainder of the case, I granted a continuance in order to afford Davis an opportunity to appear or otherwise proceed with his case, or to sever the Davis matter upon adequate showing as to why he could not attend. No such showing was made; instead, General Counsel indicated he was unable to locate Davis, withdrew his motion for a continuance or severance, rested his case, and requested that the hearing be closed-an application which I granted without opposition. Under these circumstances it is unnecessary to detail such evidence as Respondent adduced concerning this matter, and I find upon the entire record that there is a failure of proof as to the described allegations of the complaint with regard to William Davis. c. March 26: discharge of Arnold Clark On March 24, another union organizational meeting of Respondent's truckdrivers was held. At this meeting, at the home of Union Steward Devillo Hubbard (discharged by Respondent on March 16 under circumstances detailed above) in Mason, West Virginia (near Respondent's Letart terminal), there were present in addition to Devillo Hubbard approximately 10 employees, including Arnold Clark, Harrison Robinson, William Davis, Young, Woods, Staats, McMillan, and Cornell. The discussion centered around Respondent's interrogations of its drivers; its threats of going out of business and selling the trucks in case of unionization; the payraise of 1 percent for "flat loads" (i.e., flatbed trailer loads) which it had placed into effect after the March 10 organizational flurry; Respon- dent's alleged refusal because of its employees' union organizational activities, in the case of driver Young-who had purchased a truck from or through Respondent, simultaneously leasing it back exclusively to . Respondent -to continue its past practice of advancing and deducting insurance premiums from the owner-driver's gross pro- ceeds; Respondent's withholding, also allegedly contrary to past practice, of a substantial lump sum of money ($300) from the pay of driver Clark for an insurance premium seemingly for a long period in advance; and the employees' great uneasiness over "who's going to be next?" When the idea of striking was thereupon broached, Union President Hill discouraged it and recommended and the drivers agreed not to strike except "as a last resort," but instead to 22 Clark explained that Wyatt had also reassured him that a posted notice at Letart that drivers carrying overloads across the Pomeroy Bridge 431 file charges with the National Labor Relations Board and have Union President Hill meet with Respondent since the Union already held II membership cards, assumedly a majority. Two days after this meeting, on March 26, Respondent's driver Arnold Clark was discharged by Respondent under circumstances which will now be detailed. Arnold Clark had joined the Union from the very start, on March 10, in the presence of Respondent's principal's son Kenneth Schilling. At the time of his discharge on March 26 he was a "company driver" (i.e., direct conventional employee) of Respondent. On the afternoon of March 25, the day before his discharge and the day after the drivers' described March 24 union meeting at which they decided to attempt to avert a strike, Clark loaded out of Letart for Washington, Pennsylvania (approximately 30 miles from Wheeling, West Virginia), whence he was due back at around 8 a.m. the following morning (March 26), the round trip being around 365 miles. No specific route was specified. According to his account-which I believe after closely observing his demeanor and comparing it with that of witnesses on the other side-he took the usual route with an overload as he and Respondent's other drivers frequently carried, over the Pomeroy (Ohio River) Bridge at or near Mason, West Virginia, a distance of about 1/4 mile, where he stopped off to chat on union organizational matters with his fellow-drivers and union coprotagonists, Devillo Hubbard (discharged on March 16, as shown) and Harrison Robinson (discharged on March 28, 2 days after Clark, as will be shown). While so chatting, Clark observed that Respondent's principal's son Kenneth Schilling, who drove back and forth past them, espied them. Although Clark's discussion with his colleagues lasted about an hour, he nevertheless delivered his load at Washington at around 2 a.m. and arrived back at Letart Terminal by 5 or 5:30 a.m., or about 3 hours before his required return time. As usual, after pulling in there he took a nap in his cab. At around 8 a.m. he was awakened by Kenneth Schilling, who told him he was wanted on the phone. On the telephone, Kenneth's father Earl Schilling indicated that he had been informed that Clark had gone south rather than north on the trip to Washington, Pennsylvania, adding, "This thing has gone far enough, and I'm going to have to put a stop to it," and summarily fired him. Kenneth Schilling and Letart Terminal Manager Wyatt were in the office during this telephone conversation between Earl Schilling and Clark there. Clark, an impressively straightforward witness, insisted at the trial that the route he had followed to Washington, Pennsylvania, was the one suggested by Letart Terminal Manager Wyatt himself and followed by Clark 50 percent of the time, as well as by other drivers, to Respondent's knowledge, this being the shortest and quickest way to go. Conceding that he had carried an overload over the Pomeroy Bridge, in technical violation of law, Clark further insists that, in accordance with instructions of Letart Terminal Manager Wyatt,21 he as well as other drivers whom he identified by name (Wandling, Holley, Woods, Robinson, Charles Clark, Cornell, Charles Wyatt, would have to pay their own fines if apprehended, was posted merely to give Respondent an out in the event a driver were "caught." 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Staats, and even Kenneth Schilling-none of whom was produced to dispute this) regularly did and do so even now. And Clark also credibly insisted that at no time during Earl Schilling's March 26 discharge conversation with him did Schilling in any way fault him for using the Pomeroy Bridge. Later that day (March 26), when Clark telephoned Earl Schilling and asked him what he (Clark) was supposed to put on his unemployment insurance form, Schilling replied, "Just what happened, to which Clark responded, "Well, I guess that's fired, then." Schilling did not disagree. Earl and Kenneth Schilling, as well as Charles Wyatt, testified on Respondent's behalf in relation to the forego- ing. According to Kenneth Schilling, the 24-year-old son of Respondent's principal Earl Schilling and a supervisor of Respondent as will hereafter be shown, after Clark had loaded out of "Graham Station" (i.e., Foote Minerals plant, less than a mile from Letart terminal) on the afternoon of March 25, he happened to notice the loaded truck later that afternoon near Respondent's driver's Robinson's home, but never saw it cross the Pomeroy Bridge (over the Ohio River); however, since he assumed from the direction in which the parked truck was facing (as well as the width of the road, in his opinion precluding effectual turnaround there 22) that it was going "downriver" instead of the "usual" way he assumed Clark traveled to Washington "as far as I [K. Schilling] know," he informed his father Earl Schilling that Clark had gone "downriver" instead of the or his "usual" way. He also reported to his father that Clark had only used a single padding tarpaulin on the truck.23 Kenneth Schilling , an evasive as well as transparently Respondent-oriented witness, conceded on cross-examination that he had never "checked" to ascer- tain whether Clark or any other driver went over the Pomeroy Bridge overloaded; and he soon also conceded that he not only had no knowledge as to whether Respondent's trucks had crossed that bridge overloaded, but that he actually recalled such a possible overload. Testifying on the same subject, Respondent's principal Earl W. Schilling swore that he fired Clark because he was told by his son, Kenneth Schilling, that Clark was going in the opposite direction (i.e., north or "downriver") to the direction (i.e., south or "upriver") he "should have" been going. He conceded, however, that he did not specify any routing to be taken by Clark; that he does not know whether going north is shorter than going south to Washington from Letart; and that the route followed by Clark may actually be the shorter route. On cross-examina- tion, Schilling was able to recall only one instance where he had discharged an employee for going off route, in that 22 Notwithstanding this testimony, Kenneth Schilling elsewhere testified, seemingly inconsistently, that he later saw the Clark truck "turned around" near Robinson's home. as Notwithstanding this testimony, Kenneth Schilling elsewhere testified that he himself had assisted Clark in loading, when that (i.e., only one) tarpaulin was put on the load. Clark swore, credibly, that at the time in question he had one of two padding tarpaulins on the truck in accordance with company practice. 24 I.e., a gross load of around 70,000 pounds (the usual gross weight of Foote Minerals loads out of Letart or "Graham Station"), the lawful limit on the Pomeroy Bridge being 46,000 pounds . According to Earl Schilling, a notice posted at Respondent's premises for over a year has stated "No Co. trucks on Pomeroy Mason Bridge over 46,000 gross." Contrary to his son case 300 miles off route; but conceded he did not and does not know whether Clark went off route at all. In response to a leading-type question, Earl Schilling added that he also discharged Clark because he had carried an overload over the Pomeroy Bridge.24 However, on cross- examination Schilling conceded that at the time he discharged Clark he was unaware that Clark had crossed the Pomeroy Bridge, and that Clark only told him so after Schilling had discharged him; and, further, that he only discharged Clark for going "out of route." Schilling denied knowing whether or not Letart Terminal Manager Charles Wyatt had ever instructed a driver to cross the Pomeroy Bridge. On the subject of Clark's union activities, Earl Schilling swore at the trial that at the time he discharged Clark he was unaware that Clark had signed a union card.25 However, after he was shown his pretrial affidavit, he conceded he had there sworn that he did indeed know that Clark had signed a union card at the time he discharged him. Respondent's Letart Terminal Manager Charles Wyatt also testified on Respondent's behalf regarding Arnold Clark's discharge. It will be recalled that after his deficient recollection was refreshed through his pretrial affidavit, Wyatt conceded warning Clark around March 15 that "if the union got in the company would have to close the doors." As to the matter of crossing the Pomeroy Bridge with an overload, although Wyatt recalled telling Clark at some time or other (in Wyatt's words, "not quite sure" when) not to cross the Pomeroy Bridge with an overload and denied that he ever gave "instructions" to any employee to cross that bridge, he modified this so as to admit he "possibly" did tell drivers to cross that bridge to refuel without knowing whether or not they were (over) loaded; and he also did not deny that the drivers named by Clark in Clark's testimony (supra) actually crossed the Pomeroy Bridge with overloads, testifying that he (Wyatt) simply does not know one way or the other whether Respondent's drivers crossed that bridge with overloads 26 With regard to the route taken by Clark on the occasion in question-as indicated above, the reason why Earl Schilling fired Clark-Wyatt conceded that he would not consider it objectionable for a driver27 to proceed from Letart terminal to Washington, Pennsylvania, across the Pomeroy Bridge-i.e., `downriver. " Balancing the versions presented in the light of compara- tive testimonial demeanor as observed, within the frame of reference of the record as a whole, I prefer and credit Arnold Clark's version to the extent of conflict. I believe and find that Arnold Clark as well as other company drivers did in fact carry overloads across the Pomeroy Kenneth and to other testimony which I credit , Earl Schilling denied "know[mg ]" of any of Respondent's trucks carrying an overload over the Pomeroy Bridge; or that he had given permission to do so. It is to be noted that the foregoing notice is by its terms limited to "company trucks"; and that Earl Schilling-a somewhat evasive witness-conceded a distinction between "company trucks" and "broker trucks" on exclusive lease to the Company. 25 But Schilling had earlier conceded that at the time he discharged Clark he knew that Clark was involved in union activity. 26 Wyatt also explained that at the time he himself drove trucks over the Pomeroy Bridge there was no load limit in effect. 27 I.e., with a permissible load. FRALEY & SCHILLING, INC. 433 Bridge, to Respondent's knowledge and with its acquies- cence, and that no driver was discharged or disciplined therefor; that Respondent prescribed no route to be followed by its drivers from Letart terminal (or "Graham Station") to Washington, Pennsylvania; that the route taken by Clark on the occasion in question, from Letart terminal (or "Graham Station") to Washington, Pennsylva- nia, had previously been taken on numerous occasions by Clark as well as other of Respondent's drivers, without objection and with the acquiescence or knowledge of Respondent, and that said route was reasonable and proper; that Clark was not discharged for stopping off to talk to fellow employees as described, nor for any impropriety in the use of tarpaulins as described; that Earl Schilling's assigned reason for discharging Clark, namely the route he followed to Washington, Pennsylvania, on the occasion in question was not the true reason, but merely a pretext, for his discharge; 28 and that the compelling and true reason for Arnold Clark's discharge was his union membership and union concerted protected activities. d. March 28: discharge of Harrison Robinson When Union President Hill was informed of Arnold Clark's discharge on March 28, he contacted Respondent's principal Kimber J. Fraley and set. up a meeting on March 30 to discuss the matter. Although Fraley denies "remem- ber[ing]" any mention of Arnold Clark in that conversa- tion, I credit Hill. Two days after Respondent's discharge of Arnold Clark, and before the meeting set up for March 30 to discuss Clark's discharge, on March 28-the same day as the Union filed with the Board's Regional Director a petition for a secret-ballot election-Respondent also discharged its driver Harrison Robinson. It will be recalled that it was Harrison Robinson who made the initial contact with the Union and brought it into Respondent's terminal. He thereafter attended all union organizational meetings, including the March 10 meeting at which Respondent's principal's son Kenneth Schilling's participation has been described. Robinson has worked for Respondent as a truckdriver in one form or another since March, 1969-4 years to the time of his termination on March 28, 1973. He was originally hired by Respondent to drive a company (i.e., Respondent-owned) truck. Continu- ing Robinson in that capacity for a month, Respondent in April 1969 sold Robinson a 1965 GMC truck with a mileage of 312,000 miles on an arrangement whereby Robinson was required simultaneously to execute an exclusive leaseback of the truck to Respondent and to make 256 weekly payments thereon to be deducted from his weekly earnings from Respondent. When the truck was fully paid off toward the end of 1972, the exclusive leaseback arrangement was continued.29 On March 22, •when Robinson, on his way back from 28 1T ]he rule is well established that although ample valid grounds may exist for the discharge of an employee . . . . the question is whether those were in fact the only grounds for the dismissal, or whether they were'put forth as a mere pretext to justify an impermissible discharge .' " N.L.R.B. v, Pembeck Oil Corporation, 404 F.2d 105, 109-10 (C.A. 2, 1968). See also, Santa Rita Mining Co. v. N.L.R. B., 84 LRRM 2300 (July 1973). 29 On March 28, 1973, the date of his termination , Robinson also owned another truck, which was not leased to Respondent. 30 Such a hauling permit is issued to the particular truck. There was no Detroit, called in to Letart terminal to inquire for a truckload, Respondent's Terminal Manager Wyatt told him to pick up a load at Maple Grove, Ohio, destined for Cambridge, Ohio. Robinson reminded Wyatt that since he (Robinson) had no Ohio license he could not lawfully handle loading and unloading in Ohio-although he had done so in the past-this being a purely intrastate Ohio load. Wyatt asked Robinson to tell that to Earl Schilling. When Robinson declined to do so, Wyatt said, "You're fired." Notwithstanding the foregoing, on the next day (March 23) Wyatt telephoned Robinson and told him he had a load for him to Fort Wayne, Indiana, which Robinson hauled there. When Robinson, in accordance with usual practice, telephoned Wyatt from Fort Wayne, Wyatt told him to return. Robinson did so, there receiving at least one further load from Respondent to haul from Letart terminal to West Virginia; and Robinson thereupon completed that haul, as well as possibly others, for Respondent. Upon returning from a trip on March 28, Robinson was informed by Wyatt that there was a load to take to Bethlehem, Pennsylvania. Robinson reminded Wyatt that he had no permit to haul to Pennsylvania.30 Wyatt remarked that Kenneth Schilling would bring such a permit to Robinson from Mingo Junction, Ohio (about 165 miles from Letart terminal). Robinson indicated he would start loading and take the load when he received the permit. According to Robinson, Wyatt thereupon stated that he did not want to argue about it and directed Robinson to remove his "Fraley & Schilling" decals from his truck. When Robinson told him that "Mother Nature [i.e., the weather elements] had [already] taken [the decals] off," Wyatt told him he was "fired." Since then, Robinson has received no further trucking assignment from Respon- dent although, to his knowledge, his exclusive leaseback hauling contract with Respondent has never been can- celled.31 Wyatt denies any conversation with Robinson on March 28. Wyatt's testimony indicates that-contrary to Robin- son-he gave Robinson no trips after Robinson's haul to Fort Wayne, Indiana, on March 26.32 According to Wyatt, after Robinson returned from the Fort Wayne (Indiana) haul, Wyatt instructed Robinson on the morning of March 27 to load for Bethlehem, Pennsylvania. When Robinson pointed out that he had no permit for Pennsylvania, Wyatt-still according to his own testimony-informed Robinson that such a permit would be furnished to Robinson at Steubenville, Ohio -a distance of about 160 miles from Letart terminal-or "brought down"; but Robinson declined to carry the load without a proper permit. Wyatt thereupon told Robinson that "If you don't want to haul what we've got to haul, you may as well take the signs off"; and when (according to Wyatt) Robinson such permit issued to Robinson's truck at the time. 31 Robinson testified that although it is industry practice that either party to such a lease may terminate it at will, nevertheless, while in existence, the leased truck remains under control of the lessee (i.e., Fraley & Schilling). 32 In this aspect, upon comparative demeanor observations I resolve the conflict in Robinson's favor, particularly since Respondent could readily have produced records to support Wyatt or to disprove Robinson's testimony, but failed to do so or to offer any explanation for its failure. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he already had, Wyatt ended the conversation by stating, "Therefore, you've quit." On cross-examination, Wyatt conceded that "Take [y]our signs off" may be regarded as the equivalent of telling a driver, "You're fired." It is undisputed that Respondent has given Robinson no work since the foregoing conversation on March 27 or 28. Wyatt conceded that on the day when he had this conversation with Robinson practically all of Respondent's trucks, excepting Robinson's, had permits to haul in Pennsylvania. Wyatt also claimed to be unable to "remember"-but did not unequivocally deny-remarking a week before Robinson's termination that Respondent was going to "get rid of" Robinson. Wyatt's testimony concerning Robinson does not appear to be consistent with Respondent's answer, which states (par. "9") that "Robinson voluntarily quit his employment" after he was instructed to pick up a Pennsylvania permit "at the Windmill Truck Stop near Wheelin& West Virginia" (emphasis supplied). Nor does it appear to be consistent with the testimony of Respondent's principal Kimber J. Fraley, who swore that, contrary to Wyatt's testimony, Wyatt had told him (Fraley) that he (Wyatt) had instructed Robinson to pick up a Pennsylvania temporary permit (i.e., a telegram from Respondent, dated March 26, forwarding a fee to Pennsylvania authorities with the request that a permit be issued) at Windmill Junction, just a few miles from Letart terminal. According to Wyatt himself, he told Robinson that the permit would be furnished to him at Steubenville, Ohio; but according to the testimony of Kimber J. Fraley, Steubenville was not en route from Letart terminal to the Bethlehem, Pennsylvania, destina- tion of the load which Wyatt attempted to assign to Robinson. Robinson flatly denies that he was ever told that a permit for the Pennsylvania trip in question could be picked up by him at nearby Windmill Junction (West Virginia). I credit Robinson. In the terminal posture of the record, on comparative demeanor observations I prefer and credit the testimony of Robinson to the extent of any material discrepancy. Furthermore, Robinson's testimony that as an "owner- driver" he on occasion declined trip hauls (indeed, as recently as March 14, in addition to his March 22 declination of the load in Ohio, where he also was unlicensed) is undisputed.33 Coupled with Wyatt 's admis- sion that practically all of the other trucks in Respondent's service were licensed for Pennsylvania, and considering Respondent's hereinabove and hereinbelow described instances of established union animus, it taxes my credulity that Robinson's not taking on the particular haul in question under the circumstances described (including his not in fact being lawfully licensed to do so) was the real reason for the summary termination, on the heels of the 33 General Counsel's impressively credible witness Keith M. Woods, another "owner-driver," corroborated without contradiction that Respon- dent's "owner-drivers" enjoyed considerable freedom of action and, unlike the "company drivers," could "just about" select and decline the loads and trips they desired. (Of course, also unlike the "company drivers," they do not punch a timeclock and are not compensated on a time basis.) 7' See N. L. R. B. v. Pembeck Oil Corporation, quoted supra, fn. 28. 35 1 also find, particularly in view of Wyatt's concession that directing a union membership and activity, of this driver with an unblemished record of 4 years of driving performance.34 I find, rather, that the assigned reason was pretextuous,35 and that the real reason in at least controllingly motivating part was his known union membership and activity.36 3. More alleged interference, restraint, and coercion On March 28, the Union filed with the Board's Regional Director a petition requesting a secret ballot election to determine Respondent's employees' collective-bargaining representation desires (Case 9-RC-10063 ). As has been shown, on the same day Respondent discharged Harrison Robinson. On the same day (March 28), while Respondent 's owner- driver Charles Clark was awaiting a load for Philadelphia, at Respondent's Mingo Junction terminal, he was upbraid- ed by Respondent's principal Earl Schilling, "[You] was wrong in joining the Union on [me ]," which Clark denied. When Schilling thereupon said he could offer a substantial raise to "broker" owners, Clark asked him about the other drivers, including those fired . Schilling replied, "No." The incident, as described by Charles Clark, is undisputed by Schilling. The complaint (Case 9-CA-7676-1, 2, par. 5(b)(iii)), however, alleges, apparently in regard to the foregoing episode, that it constituted an offer to an employee of a wage increase for abandoning his union sympathies. The meager episode described, while credited, seems at worst indicative of union animus on Respondent's part as well as resentment at Clark's having exercised his lawful rights protected under the Act. Since I do not construe it as constituting an offer to an employee of a wage increase for abandoning his union sympathies, as alleged in the complaint, I find this allegation not established by substantial evidence. 4. The strike The complaint (Case 9-CA-7676-1, 2, pars. 10[a] and [b]) further alleges that Respondent's drivers on April 2, 1973, went and have since been out on a strike caused and/or prolonged by Respondent's unfair labor practices. Respondent's unfair labor practices antedating April 2 have been described; those subsequent to April 2 are described hereafter. With regard to Respondent's unfair labor practices and attendant events prior to April 2, it will be recalled, for example, that Respondent's acts of interference, restraint, and coercion in violation of the Act included interrogation, surveillance, economic promises, threats, and discharges of employees who to Respondent's knowledge led or were active in union organizational matters. Thus, Devillo Hubbard was discharged on March 16 for union activities. It will also be recalled that when Respondent's drivers met driver to remove his Company decal is equivalent to discharging him, that Robinson did not "quit" but was in fact discharged. See fn. 15, supra. 36 Known to Respondent at least since Letart Terminal Manager Wyatt's undisputed interrogation of Robinson on March I and confirmed through Kenneth SchiUing's described participation at the drivers' March 10 union organizational meeting concerning which Kenneth Schilling reported to his father, Earl Schilling, as shown above. FRALEY & SCHILLING, INC. on March 24 and, after reviewing Respondent's numerous antiunion activities and pressures , voiced great uneasiness over "who's going to be next," they nevertheless, on Union President Hill's urging, decided not to go out on strike "except as a last resort," but instead to file charges with the Board and to have Hill meet with Respondent since the Union already apparently held union cards from a majority of the drivers. On the heels of this meeting, however, Respondent on March 26 discharged another driver-Arnold Clark-for union activity. On March 28, Union President Hill contacted Respon- dent's principal Kimber J. Fraley and set up a meeting for March 30 to discuss these matters. Also on March 28 the Union filed a petition with the Board for a secret ballot representation election. On the same day (March 28), Respondent discharged its driver Harrison Robinson (who had brought the Union in), under circumstances which have already been described. When Union President Hill kept his appointment with Respondent on March 30 at Mingo Junction terminal, Respondent's principal Kimber J. Fraley (who was there with Earl Schilling and Mrs. Schilling) refused to talk to Hill in the presence of Devillo Hubbard and the drivers' committeeman Charles Clark, who were with Hill. When Fraley remained adamant in this attitude even though Hill pointed out that a rule of his union required an employees' elected representative to be present, the meeting aborted. However, at the insistence of the two employees, Union President Hill later returned alone and conferred with Fraley and Earl and Mrs. Schilling. Although the matter of Respondent's rapid-fire discharges of the four aforemen- tioned employees was discussed, nothing came of the discussion since Respondent refused to take any of them back. During this discussion, Schilling mentioned that Respondent had about 18 drivers. When Hill offered to display 11 signed cards, Fraley for the first time tossed in that "We have way more ... 32 or more," but Schilling said he did not agree. Hill thereupon again offered to display the 11 signed cards. Fraley's response this time was, "We know who signed the cards. We don't have to see the signatures on the cards," with which Schilling agreed 37 Fraley then added, "I'm a farmer and I don't believe in Unions and if them men want to work here, they can work here. If they don't want to work here, they can quit, and if they have any problems with this company, they should come as individuals to me, individually, and we can maybe work out their problems. If they don't like conditions here, why don't they go someplace else? . . . We'll never have a Union here. We'll close the company down before we have a Union here." Hill's warning to Respondent that the drivers would go out on strike, and that this would be an unfair labor practices strike in view of the discharges of the employees, met with no response from Respondent, so Hill left. At a union meeting of Respondent's drivers, held in Devillo Hubbard's home on April 2, the existing situation was reviewed. After a discussion, the drivers voted to go 37 On cross-examination, Earl Schilling conceded hearing Fraley utter the indicated remark to Hill in response to Hill's offer to exhibit the signed union cards in his possession in connection with the Union's request for recognition at the meeting of March 30. 435 out on strike in protest against Respondent 's described actions. Accordingly, the drivers commenced their strike later that day (April 2), with picketing across the street from Respondent's Letart terminal. The picket signs expressly declared that the drivers were "On Strike Against Fraley and Schilling Company Because of Unfair Labor Practices." Although Union President Hill concurrently informed Respondent that he was and would be available locally to discuss the matter and that the strike would be called off as soon as the discharged employees were rehired, Respondent has at no time communicated with him, nor has any of the discharged employees been returned to Respondent's employ. On April 4, the Union filed the supplemental unfair labor practices charges (Case 9-CA-7676-2) resulting in the complaint (Case 9-CA-7676-1 and 2) issued by the Board's Regional Director for Region 9 on May 17, 1973. Upon the entire record, it is overwhelmingly clear and I find that, as alleged in the complaint, the strike of Respondent's drivers which commenced on April 2, 1973, was in its inception, has at all times continued to be, and is, an unfair labor practices strike caused and prolonged by Respondent's unfair labor practices described and found herein. 5. Further economic threats On April 23, 1973, the Union filed further charges, resulting in the issuance of an additional complaint (Case 9-CA-7723-1) on June 26, 1973, by the Board's Regional Director, against Respondent. In substance, this new complaint alleges that on or about April 19, 1973, Respondent's principal Kimber J. Fraley at its Letart terminal, in further violation of Section 8(a)(1) of the Act, threatened an employee with economic reprisal in case of selection of the Union as the employees' collective-bar- gaining representative, and also threatened employees with discharge if they remained away from work and did not terminate their strike and picketing. It will be recalled that on March 28 , 1973, the Union had filed a petition with the Board requesting a secret ballot representation election (Case 9-RC-10063). The filing of that petition was preceded, attended, and followed by various acts of interference, restraint, and coercion on the part of Respondent, including the unlawful discharge of a number of employees, precipitating the described unfair labor practices strike by Respondent's drivers commencing on April 2, 1973,and the filing of supplemental charges (Case 9-CA-7676-2 ) by the Union on April 4, 1973. On April 19, 1973, the Union,executed a stipulation for certification upon consent election, to be held under Board auspices on May 10, 1973, by mail.38 On the same date that the Union set in further motion its Board election petition, by executing the foregoing formal proposed stipulation for certification upon consent elec- tion-i.e., on April 19-the events about to be described39 occurred, giving rise to the filing of new charges by the 38 This stipulation was executed by Respondent (through Earl Schilling) on April 21 and approved by the Board's Regional Director on April 26, 1973. 39 The account which follows , constituting my findings, is based upon (Continued) 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and the issuance of a second complaint (Case 9-CA-7723-1) by the Regional Director. Charles ("Chick") Clark (hereinafter referred to as "Clark"), who entered Respondent's employ as a "compa- ny driver" around June 1972 , purchased a 1968 Ford tractor-trailer from Respondent in October 1972. At that time the vehicle had a mileage of around 300,000 miles. The "purchase" arrangement was that Clark would make 118 payments of $100 per week to Respondent while obligated to haul exclusively for Respondent on a leaseback basis under which Clark would receive or be credited with a gross of 20 percent of the truck's gross income on "flat loads" (i.e., loads boxed on skids removed at destination) and 22 percent on "dump loads" (i.e., alloy, dumped out at destination). Clark thereby became an "owner-operator" or "owner-driver" of Respondent. Ac- cording to Clark, although his arrangement permitted him to return home with loads of others than Respondent if authorized by Respondent (in order to avoid revenueless return trips empty or "deadhead "), Respondent has never yet paid him for such return trips even though Respondent has collected for them from the consignor or consignee (since Respondent's identification decal is on the truck leased back to Respondent by Clark). Clark was among the drivers who joined the Union at the very first meeting (described supra) at Marietta, Ohio, on March 10, 1973-the one participated in by Respondent's supervisor Kenneth Schilling, son of its principal Earl Schilling-after having attended the meeting of Respondent's drivers called by Respondent earlier that day (also described supra). At that earlier Respondent-called meeting, Clark had openly interceded on behalf of the company drivers, urging Respondent's principal Fraley to settle with them to avoid their seeking help from the Union, but to no avail. At the subsequent union organizational meeting (March 10), Clark was elected by the drivers as a union committeeman. It will be recalled that on March 28 Clark was upbraided for going to the Union by Earl Schilling, who in effect accused Clark of having gone sour on him. And it will also be recalled that it was Clark (with Devillo Hubbard) who accompanied Union President Hill to the prestrike confer- ence of March 30 with Fraley and the Schillings, when Fraley refused to talk to Hill if Clark and Hubbard remained there. On April 19, Clark's truck was parked in the premises of his father (who is also called Charles Clark). There, Clark's brother, Arnold Clark, observed Respondent's principal Kimber J. Fraley sitting in Clark's tractor-trailer, attempt- ing to start it up and remove it. Thereupon Clark's father telephoned Clark and alerted him to what was going on. Clark immediately went to his father's home, where Fraley told him he was removing the truck unless Clark paid him $70 per month "insurance" on it if it was not stored in Respondent's premises. Clark reminded Fraley that he (Clark) had just paid a $528 annual insurance premium on mutually corroborative, credited testimony of General Counsel witnesses Charles Clark, Arnold Clark, and William J. Hill, each an impressive witness. 40 Fraley said nothing about Foote Minerals closing or planning to close or cut back one of its plants (cf. supra). There is neither proof, indication, nor claim that any such layoff was planned or effected. 4i No records were produced by Respondent to establish that no such the truck, covering collision or property damage to the truck. Although Clark offered also to pay any liability insurance premium which might be due, Fraley refused to allow Clark to use the truck elsewhere even if Clark paid the liability insurance. Clark was on strike, striking against Respondent's unfair labor practices as described and found hereinabove, at the time. (It will be recalled that Clark's truck was on exclusive leaseback to Respondent under the arrangement described supra.) Unable to reach his attorney, Clark telephoned Union President Hill at Pittsburgh and explained the situation to him. Hill advised Clark not to permit the truck to be removed without a court order. Hill then spoke on the telephone to Fraley, who insisted that he had the right to and would take Clark's truck away then and there, since "these fellows have no right to strike," and he would repossess all trucks if the Union won the election. In the course of this conversation, Fraley also told Hill that he (Fraley) was going to charge all drivers who were on strike and not parking their trucks in Respondent's terminal-which they did not uniformly do, since they would park them at their homes at least at times-for "insurance" because he considered himself to be "liable," without indicating for what he was "liable" or his basis for allegedly thinking so; but Fraley was silent on the subject of any similar charges against nonstriking employees. Fraley also insisted that Respondent's employees had no right to strike since "It's against the Bible to strike. . . . It's against the Bible for workers to ask their boss to pay them any more than their boss wants to pay them"; and that "[I am] a Bible man, [I] believe[d ] in the Bible, and if a man wanted a raise, whatever he started out for is what he should get and if he ever wanted a raise, he should go someplace else and get it and . . . . [I don't] believe in no Unions. [I] was never in any Union in [my] life and [I] never did believe in it.. . if the Union went in . . . [I ] would lay off five or six more trucks"-adding that he would probably do so anyway.40 Hill advised Fraley not to remove Clark's truck without a court order. When Clark brought up the subject of paying him (Clark) moneys due on return hauls (supra), Fraley denied having received any such payments from Associat- ed Transport (apparently the central clearing house for payments) 41 When Clark refused to allow Fraley to remove Clark's truck, Fraley left, insisting that Clark could not use the truck except for Respondent and vowing that he would repossess Clark's truck as well as that of Woods (another striking driver). The next day, a local sheriff came to seize Clark's truck, but left without doing so when Clark displayed his title documents. Two weeks later, however, the sheriff seized and removed the truck and trailer, without Clark having had or since then having any trial or opportunity to be heard in any legal proceeding to establish any lawful indebtedness, default, delinquency, or right to seize summarily. Also at the same time (April 19), a similar episode payments had ever been received, nor to establish that Respondent was current in any indebtednesses to Clark relating to revenues on permissible return hauls by Clark not ascribable to Respondent-generated business. Nor was Respondent's failure to produce such records explained. On brief (last two pages), Respondent appears to acknowledge withholding these for "debts employees owe to the company." FRALEY & SCHILLING, INC. occurred between Fraley and Respondent's driver Keith M. Woods, another unfair labor practices striker. After originally entering Respondent's employ in 1967 as a "company driver," Respondent sold one of its 5-year-old trucks with a mileage of 362,000 miles42 to Woods, who, like Clark, thereby became an "owner-driver" or "owner- operator." Woods agreed to pay some $10,000 or $11,000 (with $1,000 down) plus 8 percent interest, with weekly payments to be deducted from his "wages" and the truck to be devoted to hauling exclusively for Respondent. Woods agreed to pay all repair, maintenance, licenses, taxes, and insurance costs. Woods also at times pulled a Fraley & Schilling trailer, under his agreement with Respondent and at its request, his own trailer being interchangeable for that purpose. On April 2, 1973, Woods joined in the unfair labor practices strike. At that time his truck was parked in his front yard, where he had been regularly storing it, to the knowledge of and without objection by Respondent. Woods' weekly payments to Respondent on the truck had started at $100, reducing to $77.12 by April 2, 1973, at which time the balance of his indebtedness was around $4600, consisting of only about $500 on the truck itself but $4100 for tires, batteries, repairs, and maintenance furnished and charged him by Respondent. On the evening of April 19, while thus on strike, Kimber J. Fraley telephoned Woods and directed him to move his tractor-trailer to Respondent's terminal because of or "for insurance." Woods explained to him that it was stationary and not in use . Fraley told Woods that if the Union won the upcoming election, he (Fraley) would expect Woods to pay Respondent the full balance due on his truck. Fraley made no claim that Woods was in default in payments on the truck, but confined himself to " insurance." (Woods explained that he did not consider himself in default, since he was required to make payments only out of income from hauls for Respondent; at no time did Fraley indicate he considered Woods to be in default.) Fraley insisted that Woods deliver the truck to Respondent's premises by the following morning. Thereupon, Woods contacted Union President Hill and apprised him of these facts. Hill, who had already been called by Clark (supra), also advised Woods not to relinquish the truck without court order and to consult an attorney. The truck was subsequently repossessed by Respondent 43 Concerning these matters, Respondent's principal Kim- ber J. Fraley testified that with regard to Woods, he (Fraley) prepared and offered Woods a handwritten "agreement" that if Woods removed his tractor-trailer to Respondent's Letart terminal premises, Respondent would waive certain payments thereon only until May 25, 1973 - i.e., the date set by the Board's Regional Director for the tally of the election ballots-with all payments to recommence I week thereafter; but that if Woods "at this time fails to put the Truck to Work for Fraley & Schilling, Then Fraley & Schilling shall declare the Tractor & Trailer Repossessed and take proceedings to collect any and all moneys due them." (Resp. Exh. 6, dated April 20, 1973; not signed.) It 42 According to testimony, such trucks are apparently regarded to have a mileage expectancy of a million or more miles. 43 Woods is of the impression that the repossession was by (local) court 437 is clear that this handwritten proposed agreement prepared by Fraley would have required Woods to end his strike activity on pain of losing his truck or of making all required payments thereon without having the use thereof or income therefrom. According to Fraley, Respondent pays the full liability insurance premium on all trucks owned or leased by it; and there would be no such insurance requirement or premium on a truck dead-stored (i.e., parked without moving), even elsewhere than on Respondent's premises. With regard to "owner-drivers," collision coverage (i.e., property damage to the truck itself) is required to be carried and paid for by the "owner-drivers," and to be placed through Fraley's wife. Further according to Fraley, before the "owner- driver" had paid in full for his truck, the plates are in the name of Fraley & Schilling although the plates are paid for by the "owner-driver"; and when the "owner-driver" has fully paid for his truck he then enters into an exclusive lease arrangement with Respondent under which Respon- dent continues to have exclusive control over the truck of the "owner-driver." Fraley concedes that he also sought the return of Clark's tractor-trailer under similar circumstances, and admits a telephone conversation with Union President Hill on that occasion along the lines described above. According to Fraley, however, on the occasion in question he did not indicate that a dissatisfied employee should quit but said that "It (is] my religious conviction that I didn't think a man should break his agreement; that if a man wasn't satisfied with his job he should quit." Expanding on this, Fraley explained that it is against his religion to recognize a union because the union uses "harassment and force and being unkind and doing other such things to their employer; we have a perfect example of that right here. . . . Now one of the first commandments is to do unto others as you've had others do unto you and there's no place that it says you are supposed to or allow it as a Christian to force people to do something that is harmful to them or that might be harmful to them in any way, shape or form. You're supposed to do unto others as you would have others do unto you.... I think it is considered the Golden Rule. My understanding and what I know about union activities, they do not follow that practice." While denying that he said that "workers should not ask their boss for any more than a boss wants to give," Fraley acknowleged that "I said that if a man is working for an employer and he is not satisfied with his job and after going to his employer, if he can't work out a reasonable settlement between them and he can be wrong, the Bible then says to take somebody else with him. If you can't work out a compromise between you, then disassoci- ate yourself from that person. . . . He could use some help. But if he's not satisfied-but then instead of trying to harm his employer or use force to get what he wants, in my understanding of what's right and wrong, he should step aside and seek employment elsewhere or get into another line of work where he can get into something that does order. Subsequently, Woods apparently reclaimed the truck by paying off the moneys allegedly due thereon. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make him satisfied." It need hardly be said that belief in the Bible is not a defense to violation of the Act. Finally, Fraley conceded on cross-examination that although Respondent's "owner-drivers" Blankenship and Holley also purchased trucks from and are still indebted to Respondent thereon, they were not asked to park their trucks in Respondent's terminal nor to return the trucks, because they were not on strike. Comparing the testimonial demeanor of the three General Counsel witnesses who testified, consistently and corroboratedly, with that of Fraley, I have no hesitation in preferring the testimony of General Counsel witnesses to the extent of any material discrepancy with that of Fraley, whose testimonial performance, as I have already had occasion to point out, impressed me less than favorably. Within the context of the record as a whole, including the numerous other established instances of antiunion activi- ties and Fraley's acknowledged intellectual and religious convictions on the subject of unions and regarding an employee who does not meekly leave his job if he cannot individually obtain betterment from his employer, I find that the described allegations of the complaint have been established by substantial credible evidence and that Respondent's described threats and actions against its "owner-drivers" Charles Clark and Keith M. Woods were motivated in controlling part to punish them for engaging in protected concerted union activities.44 Not only do the described actions by Respondent constitute interference, restraint, and coercion of its employees in violation of Section 8(axl) as found , but, in view of findings hereinabove made that the strike of Respondent's employees commencing on April 2, 1973, was and has remained an unfair labor practices strike, and that Respondent's unfair labor practices continued, it follows, and I therefore further find, that Respondent's described April 19 economic threats to its employees threatening them with economic reprisal and discharge if they did not abandon said strike and return to work were in further violation of Section 8(a)(1) of the Act. Since unfair labor practice strikers may not be discharged (or permanently replaced) (Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270), employer threat to do that which he cannot lawfully do under the Act constitutes independent viola- tion of Section 8(axl). Rice Lake Creamery Company, 131 NLRB 1270, 1301, enfd. 302 F.2d 908 (C.A.D.C.), cert. denied 371 U.S. 827; Reed & Prince Manufacturing Company, 96 NLRB 850, 860, enfd. 205 F.2d 131 (C.A. 1), cert. denied 346 U.S. 887. 6. Recapitulation of findings as to alleged unfair labor practices The following recapitulates findings herein made con- cerning alleged unfair labor practices: Case No. Complaint Paragraph Description 45/ Section Finding 9-CA-7676-1, -2 5(a) (i) I 8(a)(1) Found It 5(a) (ii) I,01 it Not found it ti 5(a) (iii) 5 (a) (iv) ET ET,0I tt 11 Found Found /t it 5(b) (i) 5(b) (ii) 5(b) (iii) I Er EP t u Not found Not found Not found I 5(c) S to Found II 5(d) WI it Found tt 6 DE(Hubbard) I &(3) Found t. 7 DE(Davis) tt of Not found t 8 DE(Arnold Clark) n of Found N 9 DE(Robinson) n n Found 10(a)&(b) ULPS M Found 9-CA-7723-1 5(a) ET 8(a) (1) Found n 5(b) Er I Found Ill. 1Hh REPRESENTATION CASE A. Introductory As has been indicated, representation Case 9-RC-10063 44 Cf. L J. Williams Lumber Company, 93 NLRB 1672, 1676, and 96 NLRB 635, enfd. 195 F.2d 669, 672-73 (C.A. 4), cert. denied 344 U.S. 834; Kohler Co., 128 NLRB 1062, 1092, remanded 300 F.2d 699 and affd. 345 F.2d 748 (C.A.D.C ), cert denied 382 U.S 836. Chas been consolidated for hearing with the consolidated complaint cases hereinabove considered. The referred issues in the representation case involve 19 challenged ,,ballots cast in the Board-conducted election of May 10-24, 1973 (by mail). In that election, of 31 ballots cast, 7 were 45 Code 1 : interrogation; S: surveillance; ET: economic or other threat; EP: economic promise; WI: wage increase ; DE: discharge of employee; 01: other interference, restraint, or coercion ; ULPS: unfair labor practices strike. FRALEY & SCHILLING, INC. for and 5 against representation by the Union, with the remaining 19 challenged (16 by Petitioner Union46 and 3 by the Employer47). Since the challenged ballots-indeed, as few as two of them-could be sufficient to determine the outcome of the election, the challenges require determina- tion. B. General The agreed appropriate bargaining unit, as stipulated by the parties and approved by the Board through its Regional Director is: All truck drivers, truck owner-operators and mechanics employed at the Employer's Letart, W. Va., and Mingo Junction, Ohio terminals excluding all part-time em- ployees, casual employees, dispatchers, office clerical employees, professional employees, guards, and super- visors as defined in the Act. The agreed and approved payroll period for eligibility is April 20, 1973. C. The Challenges 1. Discharged employees (Arnold Clark, Harrison Robinson, and William Davis) Of the 19 challenged ballots, 3 are challenged by the Employer (Respondent in the unfair labor practices complaint cases). These are the ballots cast by Arnold Clark, Harrison Robinson, and William Davis, three of the four employees alleged to have been discharged by the Employer in violation of the Act. 48 It is established that employees discharged by an employer in violation of the Act, within the context of the election situation and related time frame involved, have the right to vote in a representa- tion election. See, e.g., Washington Aluminum Co., Inc., 126 NLRB 1410, 1411, affd. 370 U.S. 9 (1962). In view of the determination herein that two of the three ballots chal- lenged by the Employer (i.e., those of Arnold Clark and Harrison Robinson) were cast by bargaining unit members unlawfully ousted from employment (and thus from the bargaining unit) by the Employer, it is clear that the challenges to those ballots should be and they are hereby overruled, and the ballots should be opened and counted. Inasmuch as the third ballot challenged by the Employer was cast by driver William Davis, as to whose alleged unlawful discharge there was a failure of proof, the Employer's challenge thereto should be and it is hereby sustained, and his ballot should be rejected and destroyed unopened. 46 l.e., Bloom, Lincoln Fraley, Mitchell Holley, Mitchell Holley, Jr., Kirkpatrick, McClure, Perkins, Ross, Scharfenberg, Kenneth Schilling, Robert Schilling, Schmitt, Shubert, Stout, Wandling, and Clifford R . Wyatt. 47 l.e., Arnold Clark, Davis, and Robinson. 48 The Employer does not challenge the ballot, if any, cast by the fourth allegedly unlawfully discharged employee , Devillo Hubbard, who served as union observer-tallier at the election. 49 See Act, Sec. 2(3); Foam Rubber City #2 of Florida, Inc., 167 NLRB 623; Marriello Fabrics, Inc., 149 NLRB 333, 345; Bridgeton Transit, 123 NLRB 1196, 1197; The Colonial Craft, Inc., 118 NLRB 913, 914; International Metal Products Company, 107 NLRB 65 ; F. A. Mueller and Sons, Inc., 105 NLRB 552. But cf. N.L.R.B. v. Caravelle Wood Products, Inc., 466 F.2d 675 (C.A. 7, 1972); Cherrin Corporation v. N.LR.B., 349 F.2d 1001 (C.A. 6, 1965), cert. denied 382 U.S. 981 (1966); Pargas of Crescent City, 194 NLRB 616. 2. Alleged supervisor (Kenneth E. Schilling) 439 The ballot of Kenneth Schilling is challenged by Petitioner (Union) upon various grounds, including his supervisory status within the meaning of the Act. It will be recalled that Kenneth Schilling, the son of Respondent-Employer's principal Earl Schilling, is the individual who on Respondent's behalf engaged in the surveillance of its drivers' March 10 union organizational meeting, attempting there without success to dissuade them from joining the Union and acting collectively, and thereafter reporting to Respondent concerning the meet- ing. It will further be recalled that Kenneth Schilling is the individual who espied the movements of driver Arnold Clark's truck on March 26 and reported thereon to his father, Earl Schilling, resulting in Arnold Clark's summary discharge. Kenneth Schilling is thus not only the son of a 50- percent principal of Respondent-Employer (a closely held corporation), which alone could justify upholding petition- er's challenge to his insistence on membership in the bargaining unit49 and to his balloting in the election, but is also so closely allied to management as for that additional reason to warrant challenge.50 There is additional reason to uphold petitioner's chal- lenge to the ballot of Kenneth Schilling. This is, that he is a supervisor of Respondent-Employer within the Act's definition. The parties' stipulated appropriate bargaining unit excludes "supervisors as defined in the Act." The Act's definition (Sec. 2111 ]) of supervisor is: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The quoted statutory language is phrased in the disjunc- tive, and it is accordingly established that possession of any of the enumerated powers marks the possessor a supervi- sor,51 rather than his job title or classification.52 Under the statute, the touchstone factor determinative of whether an individual is a supervisor is his actual power or effective recommendatory power over other employees,53 even 50 Cf., e.g., CF & I Steel Corporation, 196 NLRB 470; The B. F. Goodrich Company, 115 NLRB 722; Minneapolis-Moline Company, 85 NLRB 597; Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, 323, fn. 4; Continental Can Company, Inc., 74 NLRB 351, 354; Ford Motor Company, 66 NLRB 1317, 1322. 51 N.LR.B. Twenty-fifth Annual Report (1960), p. 45; N.L.R.B. v. Eliott- Williams Co., 345 F.2d 460,463 (C.A. 7, 1965); N.LR.B. v. City Yellow Cab Company, 344 F.2d 575, 580 (C.A. 6, 1965); N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A . 4, 1958), cert. denied 359 U.S. 911 (1959). 52 See, e.g., N.L.R.B. v. Quincy Steel Casting Co., Inc., 200 F.2d 293, 296 (C.A. 1). 53 Square Binding and Ruling Co., Inc., 146 NLRB 206, 210, and cases there cited. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though much or most of his time is spent in routine production or maintenance work.54 Kenneth Schilling, a young adult of 24, is primarily in charge of mechanical service maintenance and mechanics at Respondent-Employer's Letart terminal, where he also replaces Terminal Manager Charles Wyatt during the latter's vacations or other absences (according to Wyatt as long as a week at a time); and he also occasionally drives a truck when-in his words-"my own" driver is away. He normally works 6 or 7 days and at least 50 hours per week at Letart terminal, where-unlike the two other employees (Clifford Wyatt and Shelby Pickens) engaged in mechani- cal maintenance, who are paid by the hour-Kenneth Schilling receives a fixed daily salary (except when he drives a truck, as he sometimes does), regardless of the number of hours he works and regardless of when he punches in or out; Kenneth Schilling's fixed daily salary is around $30, whereas the two aforementioned mechanics receive about $3 per hour. According to Kenneth Schill- ing's own testimony, it is he who decides upon and assigns the mechanics their work, and they follow his orders; and, when he takes the place of Terminal Manager Wyatt, he does the "same thing" as Wyatt does. Although Earl Schilling (a generally less than satisfactory witness, as already indicated) testified that his son Kenneth also to a degree substitutes for him (Earl Schilling) in his absence and that Kenneth Schilling gives him reports and evalua- tions of the work of other mechanics, I do not credit his (i.e., Earl Schilling's) further assertion-belied by his other testimony-that he would attach no weight to a recom- mendation from his son Kenneth about discharging an employee. Two drivers (Arnold Clark and Devillo Hub- bard) also confirmed that Kenneth Schilling is over the mechanics in the Letart terminal shop and gives them orders which they obey; that when Letart Terminal Manager Wyatt is not present, it is Kenneth Schilling who takes his place, giving orders to the drivers (including the "owner-operators") and others, which they obey; and that the same is true with respect to Kenneth Schilling at Mingo Junction when the latter's father (Earl Schilling) is not there. The testimony of one of these witnesses (Arnold Clark) that Kenneth Schilling informed him that he had hired company driver William Davis, is uncontradicted. If necessary, further light is shed on Kenneth Schilling's lack of community of interest with Respondent-Employer's rank-and-file employees by the fact that when the latter caucused during the March 10 meeting of employees called by Respondent-Employer (described supra,• prior to their union organizational meeting later that day), for a private discussion among themselves to formulate their demands, they did so without Kenneth Schilling. Upon the record as a whole, I find Kenneth Schilling not to be a member of the bargaining unit, because of his supervisory status, his family relationship to Respondent- Employer's principal (Earl Schilling, his father), his confidential relationship to Respondent-Employer, and his absence of community of interest with the rank-and-file employees. For these reasons, Petitioner's challenge to the 54 N.L. R.B. v Browne & Sharpe Mfg. Co, 169 F.2d 331 (C.A. 1). SE See, generally, Packard Motor Car Co. v. N.L,R.B, 330 U.S. 485,491; N. L.R.B v. Pepsi-Cola Bottling Company of Mansfiel4 Ohio, 455 F.2d 1134 ballot he cast in the election should be sustained, and his unopened ballot should be destroyed. 3. Lincoln Fraley and his Rushville, Indiana, trucking company drivers (Lincoln Fraley, Dale Stout, Terry McClure, Michael Shubert, and William O. Kirkpatrick) Petitioner has also challenged the right of Lincoln Fraley, son of Respondent-Employer's principal Kimber J. Fraley and owner of a trucking company located in Rushville, Indiana, and the four drivers of Lincoln Fraley (Stout, McClure, Shubert, and Kirkpatrick), to vote in the election here in issue. At the outset it should be noted that the stipulated appropriate bargaining unit here includes the aforede- scribed "owner-operators" or "owner-drivers" as well as Respondent-Employer's "company drivers." This is con- sistent with the Board's acceptance of "owner-operators" or "owner-drivers" as appropriate for inclusion in such bargaining units where they are subject to the trucking company employer's "right of control" over their opera- tions and work incidents so that in practical effect they are scarcely or only formalistically distinguishable from the company's own directly employed "company drivers" and thus constitute a collective-bargaining community closely knit in interest35 For this reason, there is agreement among the parties, and properly so, that Respondent- Employer's "owner-drivers" (to many if not most or all of whom Respondent-Employer or its principal Kimber J. Fraley or his truck sales agency sold their trucks), employed at Respondent-Employer's Letart or Mingo Junction terminal, are to be regarded as members of the bargaining unit here. Lincoln Fraley (a 27-year old adult) and his four drivers, however, do not fit into this category. To begin with, Lincoln Fraley has his own trucking business, under his own company name ("Fraley Truck[ing] and Implement"), operating his own fleet of trucks and trailers out of Rushville, Indiana, which is 250 miles from Respondent- Employer's Letart terminal and 300 miles from Respon- dent-Employer's Mingo Junction terminal, Respondent- Employer's only two terminals. Lincoln Fraley's Rushville, Indiana, location is the locus of employment of his drivers. It is not and is not regarded as a terminal of Respondent- Employer, which has no terminal and neither owns nor leases any real property in Rushville nor even has a telephone there. And-unlike Respondent-Employer's "company drivers" and "owner-drivers," who live in or within close proximity to Letart or Mingo Junction-Lin- coln Fraley and his drivers all live in or near Rushville, Indiana. The fact that they haul for Respondent-Employer is not unusual ; many trucking companies haul for other trucking companies, and have reciprocal freight forward- mg and freight consolidation relationships, for a variety of reasons (including convenience, economy, avoidance of unnecessarily duplicative trips without full outloadings, desire not to utilize equipment beyond a certain point or in certain areas, franchises, tariffs, unavailable or inadequate (C.A. 6, 1972); National Freight, Inc., 146 NLRB 144; Deaton Truck Line, Inc., 143 NLRB 1372, affd. in material part 337 F.2d 697 (C.A 5, 1964), cert. denied 381 U.S. 903 ( 1965). FRALEY & SCHILLING, INC. 441 equipment, certification, licenses, permits, delivery time stringencies, etc.); but this does not mean that their drivers or "owner-operators" are to be considered as members of the bargaining units of the other trucking companies or entitled to vote in their elections. In this case; the situation is perhaps compounded by the fact that Lincoln Fraley is he son of Respondent-Employ- er's 50-percent principal Kimber J. Fraley and for that reason alone (supra, fn. 49) excludable from the bargaining unit and right of access to the ballot box. Insofar as Lincoln Fraley's drivers are concerned, according to the testimony of Lincoln Fraley himself-who describes himself as an "independent trucker"-it is he who gives them orders which they carry out, and it is he who pays them.56 And Lincoln Fraley's trucks and trailers also haul machinery and grain-not for Respondent-Employer here. According to Lincoln Fraley's testimony, he can pay his drivers what he wishes-the same as or more or less than Respondent-Employer pays its drivers; and he, his trucks and drivers haul for others as well as for Respondent- Employer, under Lincoln Fraley's direction and without Respondent-Employer's permission or authorization.57 Lincoln Fraley's trucks are stored in Rushville, Indiana, at Lincoln Fraley's home there. Lincoln Fraley's trailer tractors were purchased not only from his father's company but also from other companies and private sources; and he owns and holds them all under his own name-"Lincoln Fraley doing business as Fraley Truck- [ing] and Implement"-and himself carries and pays for liability insurance covering his drivers. Lincoln Fraley swore that Respondent-Employer does not have the power to terminate the employment of any of his employees; and that-notwithstanding his assertion that his trucks are now "leased" to Respondent-Employer (contrary to the testi- mony of his father, Kimber J. Fraley, who swore that only some of Lincoln Fraley's trucks are "leased" to Respon- dent-Employer), he does not need Respondent-Employer's permission to utilize his trucks to haul for others. Ascertainment of more precise facts concerning the true nature of Lincoln Fraley's business relationship, past and present, with Respondent-Employer was precluded by his assertion that he keeps no records concerning this aspect of his business since it involves his own father (Kimber J. Fraley) as well as Earl Schilling, both of whom he trusts. Lincoln Fraley's driver Terry McClure---called by Petitioner as an adverse witness and exhibiting a high degree of partiality toward Respondent-Employer-nev- ertheless testified that if the truck he normally drives for Lincoln Fraley is unavailable, it is Lincoln Fraley who gives him another one of his (i.e., Lincoln Fraley's) trucks to drive; and that he has never driven a truck of Respondent-Employer. McClure explicitly testified that he has on occasion "turned down" Fraley & Schilling loads. He also testified that when he hauls seed corn or farm implements, it is never for Respondent-Employer, but with Lincoln Fraley's decal ("Fraley Truck and Implement") on the truck. And McClure revised his earlier testimony so as to swear that the employer listed on his income tax return has been Lincoln Fraley,58 who maintains his own office and place of business in Rushville, Indiana, where the truck McClure drives is stored and where McClure himself lives. On the occasion of an accident, McClure's truck was picked up by Stout, another one of Lincoln Fraley's drivers. Finally, McClure stated that in July 1973, long after the union election, he received two separate "pay" checks-one from Lincoln Fraley and one from Fraley & Schilling, Inc. It is also to be noted that none of Lincoln Fraley's drivers attended the meeting called and conducted by Respondent-Employer on March 10, 1973, for its drivers; and that Respondent's principal Kimber J. Fraley ac- knowledged at the trial that Lincoln Fraley's drivers are not insured under Respondent-Employer's group insurance policy covering Respondent-Employer's drivers. In sum, it appears that Lincoln Fraley and his drivers are in a category clearly distinguishable, as well as physically and otherwise separate and apart, from Respondent- Employer's own "Company drivers" and "owner-drivers" at its Letart and Mingo Junction terminals. As indicated above, the mere fact that they handle some, or even many, loads for Fraley & Schilling, Inc., does not mean that they, any more than any other such trucking company's principals and employees, can vote in a union representa- tion election of the terminal drivers and other employees of Fraley & Schilling, Inc. Upon the record as a whole, I find that Lincoln Fraley, the son of Respondent's principal and for that reason alone ineligible to vote (supra, fn. 49), is an independent contractor and entrepreneur, having his own fleet of trucks stationed and stored hundreds of miles from either of the terminals of Respondent-Employer, in Rushville, Indiana, where or very close to where Lincoln Fraley and his drivers reside; that the drivers of Lincoln Fraley at the times here involved were employees of Lincoln Fraley, driving his trucks and taking orders and instructions from him and paid by him at rates established by him, and having no community of collective bargaining interest with the Letart or Mingo Junction employees of Respondent-Employer.59 For these reasons, they were not 56 To be sure, they sometimes-perhaps distinctly only very recently, since union organization loomed on the horizon for Respondent-Employer, as described above and further commented upon below-have also received "payment" directly from Respondent (who, after all, owed it in relation to the hauls made for it by Lincoln Fraley's company on Lincoln Fraley's equipment). 57 Included among the companies for which Lincoln Fraley hauls is Fraley Truck [or Tractor] and Implement Sales [or Company], Inc. (wholly owned by his father, Kimber J. Fraley, and his mother), for which Lincoln Fraley's trucking company hauls farm machinery. In those hauls, too, Lincoln Fraley determines the amount of pay of his drivers. Lincoln Fraley estimates this hauling alone as composing 30-40 percent of his total business. 58 Still later McClure, an unwilling, evasive, equivocating, and partial witness, indicated that he now also receives two tax statements or withholding forms-one from Lincoln Fraley and one from Fraley & Schilling, Inc. These were not produced. 59 Cf. Frito-Lay, Inc. v. N.L.RB., 385 F.2d 180 (C.A. 7, 1967); Danielson v. Teamsters, Local 814, 355 F. Supp. 1293 (S.D.N.Y.); Portage Transfer Co, Inc., 204 NLRB No 117; Conley Motor Express, 197 NLRB 624; Fleet Transport Company, Inc, 196 NLRB 436 I do not regard as determinative here the alleged circumstance, as urged by Respondent-Employer, that assertedly since mid-March Lincoln Fraley and his drivers have been "earned" on Respondent-Employer's "payroll." To begin with, framed in the reference of the congeries of circumstances, including Respondent-Employer's acknowledged antiunion zealotry, and its (Continued) 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD justified in casting ballots at the representation election of the Letart and Mingo Junction employees of Respondent- Employer, nor in insisting that those ballots be included and counted ; and petitioner's challenges to those ballots (i.e., the ballots of Lincoln Fraley, Dale Stout, Terry McClure, Michael Shubert, and William O. Kirkpat- rick-the last-named, according to Fraley, not even in his employ since a month or two before the stipulated voting eligibility date) should be sustained and the ballots destroyed unopened. 4. Other close relatives of Respondent-Employer's principals (Robert Schilling and Clifford R. Wyatt) Mention has already been made of Kenneth Schilling and Lincoln Fraley, each a son of one of Respondent- Employer's 50-percent owners, excludable from the bar- gaining unit for that reason alone (as well as others). Two additional voters are challenged by petitioner upon the same ground; namely, Robert Schilling and Clifford R. Wyatt. a. Robert Schilling Robert Schilling is the 16-year-old son of Earl W. Schilling, the 50-percent owner-principal of the closely held Employer corporation Fraley & Schilling, Inc. He lives with his parents in Mingo Junction.60 At the time of the trial, he was on vacation from high school, where he had just completed his second year. He attends school full time except during the summer . According to his testimony, after school lets out around 3:30 p.m., he goes to work at his father's company's Mingo Junction Terminal from 4 to 9 or 10 p.m., changing tires, greasing trucks, "and things like that," with Kenneth Schmitt (considered infra), also.a high school boy of 16, and a few others . Robert's testimony that he works 30-35 hours per week during school time does not square with the Employer's stipulation in the record based upon its books and records : according to those records, in January, February, and March 1973 Robert worked only 80, 101, and 105 hours. According to his testimony, he receives $1.50 per hour during the summer, but only $1 per hour during the school term, by checks which he cashes, receiving no W-2 form and paymg no income tax. When he wants time off, he asks his father, who usually agrees. Because of his close family relationship to the Employ- er's principal, within the frame of reference of the statutory exclusion and decisional rules,81 and also because he is multifarious unfair labor practices then occurring and continuing to occur, the "placing" of those persons, obviously non-employees, on its "payroll," is self-serving and smacks of gimmickry designed to defeat the policies and purposes of the Act by thwarting its employees' efforts to exercise their statutory right to bargain collectively, through deliberate "dilution" of the bargaining unit by inclusion therein of a close family member and his employees. It is somewhat reminiscent of the unsavory game of musical chairs which I encountered in 1%7 in Alco Mining Co., Inc., 169 NLRB 491, 511, fn. 7, enfd. in material part, 425 F.2d 1128 (C.A. 5, 1970). Furthermore, comparison of the number of "payroll " hours attributed to Lincoln Fraley and his drivers on the "payroll" of Respondent-Employer, compared to the payroll hours of bona-fide Respondent-Employer drivers like Devillo Hubbard and Clifford Wyatt, is not (except in the alleged but unexplained case of Stout) impressive on the proposition that they were full-time employees of Respondent-Employer, it being noted that part-time employ- ees are excluded from the bargaining unit. hardly more than a part-timer at best and as such expressly excluded from the stipulated bargaining unit, Robert Schilling should not be considered a member of the collective-bargaining unit here, and Petitioner's challenge to his ballot should accordingly be sustained and the ballot destroyed unopened. b. Clifford R. Wyatt Clifford R. Wyatt is likewise challenged by Petitioner upon the basis of close relationship, as the son of the Employer's Letart Terminal Manager Charles L. Wyatt. Since the two sole and equal owners of the Employer are Earl W. Schilling and Kimber J. Fraley, it is apparent that Charles L. Wyatt, the father of Clifford R. Wyatt, is neither a principal nor stockholder of the Employer. The mere fact that Clifford R. Wyatt, who works as a full-time mechanic at Letart Terminal , is the son of the manager there, is insufficient to disqualify him from inclusion in the bargaining unit either under the statute or the parties' stipulation defining the agreed unit. Petitioner's challenge to the ballot of Clifford R. Wyatt should accordingly be overruled, and that ballot opened and counted. 5. Alleged nonemployees and part-time or casual employees (Roy O. Ross, Dean Perkins, Landis Wandling, Fred Bloom, Kenneth Schmitt, Robert Scharfenberg, Mitchell Holley, and Mitchell Holley, Jr.)' Petitioner has also challenged eight other balloters as not bona-fide, or as part-time or casual, employees of the Employer. a. What is ' f ull-time" work for this Employer? Credited testimony of Petitioner's witness Devillo Hub- bard, corroborated in part by his official driver's log book record, establishes that a usual full-time "company driver" driving job with the Employer involves from around 240 to 280 or more hours of work during a 4-week month (i.e., 60-70 hours per week), 82 while that of an "owner-driver" is 200 to 280 hours for the same period. Because of the Employer's unexplained failure to adduce satisfactory proof, such as its own books and records, to establish the contrary, the foregoing provides the best available yard- sticlc,within thefourcorners of the record here as to what is "full-time" duty for this Employer's drivers, and I so find. Insofar as the mechanics are concerned, Respondent's w While exhibiting intelligence on the witness stand , Robert neverthe- less, in connection with being sworn in, exhibited possible lack of total comprehension as to the nature of the oath. He also demonstrated understandable partiality toward his parents' interests, among other things keeping a weather-eye closely fixed upon them while testifying. si Siipra, In. 49. 62 This is said at times to exceed the "legally permissible maximum of 70 hours per week." Hubbard's January 1973 log (Pet. Exh. 2) shows a total of 236 duty hours. with 11-12 hours per day not unusual, and on one day 15- 1/2 hours, Based upon comparative demeanor and Hubbard 's log book, as well as Respondent's unexplained failure to produce its own records, I do not credit the uncorroborated rebuttal testimony of Kimber J. Fraley to the extent inconsistent with the described credited testimony of Hubbard. (Mrs. Schilling, the Employer's secretary-treasurer and bookkeeper, testified credibly that she is unable to estimate the average number of hours worked by its drivers.) FRALEY & SCHILLING, INC. 443 supervisory mechanic Kenneth Schilling testified that the mechanics work about 50 hours per week, or at any rate 6 days per week and 8 hours per day-that is, about 200 hours during a 4-week month; I so find. b. Data and findings The material data, and my findings and conclusions, concerning the individuals under immediate consideration and Petitioner's challenges to their ballots, are summarized in the attached Appendix. D. Recapitulation of Findings as to Challenged Ballots The following recapitulates findings herein made con- cerning the 19 challenged ballots: Challenged bX Challenge Arnold Clark Employer Overruled Harrison Robinson of is William Davis Sustained itioner Kenneth Schilling Pet Lincoln Fraley it Dale Stout Terry McClure Michael Shubert William 0. Kirkpatrick Robert Schilling Clifford R. Wyatt Roy 0. Ross Dean Perkins Landis Wandling Fred Bloom n Kenneth Schmitt If Robert Scharfenberg it Overruled Mitchell Holley it Sustained Mitchell Holley, Jr. It it Upon the foregoing findings and the entire record, I statq the following: CONCLUSIONS OF LAW 1. At all material times, Respondent Fraley & Schilling, Inc., has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, Fratenal Association of Special Haulers, Local Union 100, Charging Party herein, has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. Jurisdiction is properly asserted in this proceeding. 4. By interrogating, engaging in surveillance of its employees' protected concerted activities, making econom- ic and other threats, instituting a wage increase under the circumstances described, discharging its employees Devillo Hubbard, Arnold Clark, and Harrison Robinson, and acts of interference, restraint, and coercion, and by each of said acts, as set forth and found in "II," supra, Respondent has interfered with, restrained, and coerced, is interfering with, restraining, and coercing, and unless permanently enjoined will continue to interfere with, restrain, and coerce, its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(l), of the Act. 5. By its discharges of and failures and refusals to reinstate its employees Devillo Hubbard, Arnold Clark, and Harrison Robinson, and by each of said discharges and failures and refusals to reinstate, as set forth and found in "II," supra, Respondent has discriminated, is discrimi- nating, and unless permanently enjoined will continue to discriminate, against employees in regard to the hire, tenure, and terms and conditions of their employment, thereby discouraging membership in a labor organization, in violation of Section 8(a)(3) of the Act. 6. At all material times, the following unit of Respon- dent's employees has been and is appropriate for collec- tive-bargaining purposes within the meaning of Section 9(b) of the Act: All truck drivers, truck owner-operators and mechanics employed at the Employer's Letart, W. Va., and Mingo Junction, Ohio terminals excluding all part-time em- ployees, casual employees, dispatchers, office clerical employees, professional employees, guards, and super- visors as defined in the National Labor Relations Act. 7. On April 2, 1973, Respondent's employees in the foregoing appropriate collective bargaining unit engaged and have since continued to engage in a concerted work stoppage or strike. 8. Said concerted work stoppage or strike was in its inception due to and caused at least in substantial and controlling part by Respondent's unfair labor practices, and each of them, found herein, which occurred on or prior to, or continuing on, April 2, 1973. 9. Said concerted work stoppage or strike was pro- longed, and has to date continued to be prolonged, at least in substantial and controlling part, by Respondent's unfair labor practices, and each of them, found herein. 10. Said concerted work stoppage or strike was in its inception, has at all times since its inception continued to be, and is, an "unfair labor practices strike" constituting protected concerted activity under the Act. 11. On or about and continuing since April 19, 1973, Respondent threatened employees in the foregoing appro- priate bargaining unit who had engaged and were continuing to engage in the aforesaid protected concerted work stoppage or strike since April 2, 1973, by reason of Respondent's aforementioned unfair labor practices, with discharge or permanent replacement and loss of economi- cally valuable benefits accruing to their employment with Respondent, unless they returned to work for Respondent ,on or about May 25, 1973. 12. By its said action, Respondent has interfered with, restrained, and coerced, is interfering with, restraining, and coercing, and unless permanently enjoined will continue to interfere with, restrain, and coerce, employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1), of the Act. 13. The aforesaid unfair labor practices and each of them affect, are affecting, and unless permanently enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of the Act. 14. It has not been established by a fair preponderance of the substantial credible evidence that Respondent 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged William Davis from its employ, or failed to reinstate him, in violation of Section 8(a)(3) and (1) of the Act as alleged in the complaint herein. 15. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has violated Section 8(a)(1) of the Act in any respect alleged in the complaint herein but not found in "II " hereof. REMEDY With regard to remedying the unfair labor practices comprising the violations of Section 8(a)(1) and (3) which have been found, I shall recommend the usual cease and desist order and affirmative relief customarily ordered in cases of this nature, involving interference, restraint, and coercion, and discriminatory discharges and failures to reinstate. The recommended Order will, accordingly, require Respondent to cease and desist from the unfair labor practices found; and to offer its discriminatorily discharged employees Devillo Hubbard, Arnold Clark, and Harrison Robinson immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered in consequence of their unlawful discharges, by payment to them of a sum of money equal to that which they normally would have earned as wages from the dates of their respective discharges herein found, including any losses to Harrison Robinson arising from his idled equipment, to the date of Respondent's offer to reinstate them to their former or substantially equivalent positions, less their net earnings if any during such period, backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also be required to make whole and to reimburse "owner-drivers" Charles Clark and Keith M. Woods, as well as any other "owner-drivers" similarly situated, for any monetary loss including loss of pay or income, with interest, sustained by them by reason of es See in. 44, supra. s+ Roosevelt Roofing and Sheet Metal Works, Inc, 205 NLRB No. 110 at fn. I and cases cited. ss Cf. N.LR B v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A 4). se Petitioner Union in the representation case filed no objections to the conduct of the election or to Employer conduct affecting the outcome of the election. Respondent's discriminatory repossession of and other actions affecting their trucks under the circumstances described, such having been motivated, as herein found, in controlling part as punishment for engaging in protected concerted union activities.63 However, in the case of Charles Clark and Keith M. Woods, since they were on strike at the time of Respondent's action against them, the right to reimbursement for pay or income lost shall be tolled during the period while out on strike , and shall commence 5 days from the date of their respective unconditional applications for reinstatement to the date of Respondent's offer of reinstatement 84 Respondent shall be required to make available necessary records for computa- tion of backpay to its discharged employees as well as for computation of appropriate reimbursement to Harrison Robinson for his idled equipment, and also for any reimbursement to its said discriminatorily-treated "owner- drivers" Arnold Clark and Keith M. Woods. In view of the fact that the unfair labor practices here are numerous and of a character striking at main roots of the Act and its intended guarantees, I shall include a provision requiring Respondent to cease and desist from any infringement, upon the rights secured by Section 7 of the Act 85 The usual notice posting will also be required. Consideration of the question as to the appropriateness of a bargaining order (cf. N.L.R.B. v. Gissel Packing Company, 395 U.S. 575 (1969)) is not reached here,66 in view of the fact that it has not been established by substantial credited evidence as required that the Union represented a majority of the employees in the appropriate collective bargaining unit at the time of any of its demands for recognition.67 Accordingly, the Union's representation status or lack of it should, for purposes of this consolidated proceeding, await the opening and counting of those ballots to which objections are overruled. Recommendations to the Board concerning disposition of the challenged ballots in the election of May 10-24, 1973, are set forth in "III ," supra. [Recommended Order omitted from publication.] 87 I do not regard the conclusory and self-serving testimony of General Counsel's witnesses Hill and Hubbard that I I union cards were signed, nor of Union President Hill that he told this to Respondent, as sufficient without more to establish that the Union in fact represented a majority of the employees in the bargaining unit here. No signed union cards or other solid indicia of the Union's majority representation status were produced at the trial. FRALEY & SCHILLING, INC. ,APPENDIX Count 445 Name Hours Paid 1973 Jan . Feb. Mar. Nature of Services Form Used a/ JFipi. or Not a Part or Full Time b/ tPtnrs. Challenge to Ballot Ballot or Destroy Unopened Roy 0. Ross 0 19/ 40 Driving 1099 Not Part Sustained Destroy Dean Perkins 38 24/ 22/ Driving 1099 Not Part Sustained Destroy Landis Wandling 79' 39/ 111/ Driving 1099, W-2 Not S/ Part Sustained Destroy Fred Bloom 159 157 124 Mechanic W-2 Empl. Part d/ Sustained Destroy (Mingo Jet.) Kenneth Schmitt 95/ 98/ 85 Mechanic W-2 Empl. Part e/ Sustained Destroy (Mingo Jct.) Robt. Scharfen- 155 177/ 162/ Mechanic W-2 Empl. Appx. Overruled Count berg (Mingo full Jct.) Mitchell Holley 225 97 205 Driving 1099, W-2 Notc/ Part Sustained Destroy Mitchell Holley, 0 0 118 Driving W-2 Not Part f/ Sustained Destroy Jr. I a/ The parties have stipulated that where an individual is paid by Fraley & Schilling, Inc., with the use of a Form W-2, income tax is withheld and social security paid ; and that where he is paid with the use of a Form 1099, he receives a lump sum with no withholding of income tax or payment of social security (and that in the latter case he may, or may not, be merely the owner but not the drier of a vehicle leased by him to Fraley & Seb ling, Inc.). It would accordingly seem that, while use of the Form W-2 ould not ipso facto establish the payment recipient to be an employee, at any rate use of the Form 1099 would rule him out as an employee since it is not to be presumed that he and Fraley & Schilling, Inc., violated the law in this regard by failing to withhold income taxes or make social security payments. Cf. Danielson v. Teamsters, Local 814, 355 F Supp. 1293 (D.C.N.Y.). b/ See discussion supra, section 5, a. c/ I.e., not established to be employee or to have any right to vote; not shown how much is Form W-2 "pay" as distinguished from Form 1099 income (see In. a, supra). (Credited testimony of Arnold Clark shows Wandlmg paid his own drivers on trucks leased by Wandling to Fraley & Schilling, Inc.) d/ Regularjob is with Foote Mineral Company. e/ A 16-year-old high school boy, like Robert Schilling f/ Allegedly first appeared on Employer's "payroll" on March 14, 1973, while employed and paid by father, Mitchell Holley (as a dual driver with his father), an "owner-operator" paid with Form 1099 as well as Form W-2. Not established to be a bona fide employee, and in any event only part time. I