Webel Feed Mills & Pike Transit Co.

GEORGE WEBEL & PIKE TRANSIT COMPANY George Webel d/b/a Webel Feed Mills & Pike Transit Company and Local 217, American Federation of Grain Millers, AFL-CIO. Cases 14-CA-7884 and 14-CA-7952 May- 7, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 18, 1974, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, George Webel d/b/a Webel Feed Mills & Pike Transit Company, Pittsfield, Illinois, his agents, successors, 'and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph 1(e): "(e) Threatening to close his plant or to lay off em- ployees in order to discourage employees from support- ing Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization, in a pend- ing Board-conducted election or otherwise." I Employee Cawthon testified that about 3 days after the election George Web,--I, owner of Respondent, told him that "if we had a union in the Mill we would have to lay off some help because we would have too much manpower " The Administrative Law Judge found that Webel's statement was not violative of Sec 8(a)(1) because it was ambiguous without further claril ication, noting that at the time the statement was made the Union had already won the election The General Counsel excepts, contending Webel's statement was not ambiguous, particularly in the circumstances of this case. We find merit in the General Counsel's exception. Accordingly, we find the statement violative of Sec 8(a)(1). The Administrative Law-Judge found that the contracting out of 4 to 6 hours of unit work per day after June 1, 1974, was not substantial enough to require Respondent to give the Union notice of the change and did not result in any "significant detriment" to unit employees The General Coun- sel did not except to his finding In the absence of exceptions thereto, we adopt the Administrative Law Judge's finding dismissing that allegation of the complaint 815 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively con- cerning rates of pay, wages, hours of employment, and other terms or conditions of employment with Local 217, American Federation of Grain Millers, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described below and, if an agreement is reached, we will execute a written contract incorporating the terms of the agreement. The Union's certification year shall extend 1 year from the date such new bar- gaining negotiations begin . The appropriate unit is: All full-time and regular part-time production and maintenance employees and truckdrivers em- ployed at the Employer's Rural Route 3, Pitts- field, Illinois, facility, excluding all office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT make or effect any changes in the wages, hours, or other terms or conditions of em- ployment of the employees in aforesaid collective- bargaining unit without first giving notice to their collective-bargaining representative and affording such representative an opportunity to engage in collective bargaining with respect to any such proposed change. WE WILL NOT layoff, threaten to layoff, or other- wise discriminate against any employees in regard to their hire, tenure of employment, or any term or condition of their employment, in order to dis- courage membership in Local 217, American Fed- eration of Grain Millers, AFL-CIO, or any other labor organization. WE WILL NOT threaten to discharge employees who engage in lawful strikes. WE WILL NOT promise benefits to employees to induce them to refrain from participating in any strike. WE WILL NOT threaten to close our plant to dis- courage employees from supporting Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization, in a pending board-conducted election or otherwise. 217 NLRB No. 121 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT advise employees to refrain from associating with other employees who favor or support Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organiza- tion. WE WILL NOT coercively question employees con- cerning attendance of other employees at union meetings or regarding employees' union sympa- thies, activities, or membership. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to' bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer Earl Hull immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him. GEORGE WEBEL, d/b/a WEBEL FEED MILLS & PIKE TRANSIT COMPANY DECISION STATEMENT OF THE CASE FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, an individual proprietor doing business under the trade name and style of Webel Feed Mills & Pike Transit Company, maintains an office and place of business in Pitts- field, Illinois, where, among other activities, he is engaged in the manufacture, processing, and distribution of livestock feed and related products. During the calendar year 1973, which period is representative of the Company's operations, Respondent purchased and caused to be shipped through channels of interstate commerce to his place of business in Pittsfield, Illinois, from locations outside the State of Illinois, grain and other goods and materials valued in excess of $50,000. The complaint alleges, Respondent admits, and I find that he is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ISSUES At an election conducted by the Board on April 30, 1974, a majority of the Company's employees in the unit described below designated the Union as their representative and, on May 8, 1974, a certification of representative was duly issued. The appropriate collective-bargaining unit certified by the Board is: HERBERT SILBERMAN, Administrative Law Judge: Upon charges filed in the above-numbered cases on April 12 and May 28, 1974, respectively, by Local 217, American Federa- tion of Grain Millers, AFL-CIO, herein called the Union, an order consolidating the above-numbered cases and a com- plaint therein, dated June 28, 1974, was duly issued. The complaint, as amended on July 25, 1974, and as further amended during the hearing, alleges that George Webel d/b/a Webel Feed Mills & Pike Transit Company, herein called the -Company, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. Respondent filed an answer denying generally that he has engaged in the alleged unfair labor practices. A hearing in these proceedings was held on August 27, 28, and 29, 1974, in Pittsfield, Illinois. Thereafter, briefs were filed with the Administrative Law Judge on behalf of General Counsel and Respondent. Upon the entire record in the case,' and from my obser- vation of the witnesses and their demeanor, I make the fol- lowing: 1 P. 260 of the transcript of record is hereby corrected to change 6-D to 6-C on 11. 9 and 13 All full-time and regular part-time production and main- tenance employees and truckdrivers employed at the Employer's Rural Route 3, Pittsfield, Illinois, facility, excluding all office clerical employees, salesmen, profes- sional employees, guards and supervisors as defined in the Act. Thereafter, at six separate sessions held between May 14 and June 19, the Union and the Company engaged in collective- bargaining negotiations. However, the parties were unable to reach an agreement and on June 20, 1974, the Union called a strike. The complaint alleges that Respondent has refused to bargain collectively in violation of Section 8(a)(5) by: (a) On May 20, 1974, unilaterally changing the pay ar- rangement for its truckdrivers from a weekly salary to an hourly rate; (b) Since June 3, 1974, unilaterally eliminating "a job for a unit employee by selling one of its trucks and contracting out the work done by a unit employee;" and (c) On May 1, 2, 4, and 11, 1974, unilaterally changing the working conditions of the Company's truckdrivers by impos- ing upon them more arduous duties through the elimination of breaks, imposition of new working rules, prohibition of GEORGE WEBEL & PIKE TRANSIT COMPANY lunchbreaks while driving and coffeebreaks generally, and imposition of new cleanup duties.' The complaint also alleges that Respondent discriminated against employees in regard to their hire, tenure of employ- ment, or other terms and conditions of employment "in order to discourage employees from engaging in union and/or pro- tected concerted activities,"by: (a) On May 22, 1974, laying off Earl Hull and Bruce Rush; (b) On May 23, 1974, laying off or terminating Earl Hull, Joseph Womble, Allen Horton, and Bruce Rush; and (c) Since on or about June 3, 1974, selling one of its trucks which resulted in the loss of unit work. The complaint further alleges that, by reason of the forego- ing and other conduct specifically set forth in 13 subpara- graphs of paragraph 5 of the complaint, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in viollation of Section 8(a)(1). IV THE UNFAIR LABOR PRACTICES A. Background The Company is solely owned by George Webel. Webel, who is engaged in farming and raising livestock, also pro- duces feed for livestock. Initially he produced feed only for his own livestock, but in 1960 he expanded his operations and began to manufacture feed for others, which activity has grown over the years. In part, Webel operates a grain bank. Farmers bring their corn to his place of business where it is ground and enriched through the addition of proteins and other ingredients and then the feed is delivered to the farmers or they pick it up themselves. At present, the Company em- ploys about 24 persons of whom approximately 13 work in the feed mill. Prior to 1973 the Company employed Art Crowder, a carrier, to transport feed ingredients to the plant and to deliver manufactured feed to customers. The Company then owned one large truck and two small trucks which were used about the premises and to make urgent deliveries. In Febru- ary 1973 Webel purchased six trucks from Art Crowder These included four bulk truks, which are used to haul bulk feed, and two bag and bulk trucks, which are used to haul bulk or bagged feed or both. At the time of the purchase the six men who had been driving the trucks for Art Crowder were hired by the Company to work for- it under the same terms and conditions of employment that they enjoyed when they were working for Crowder. A few weeks after the pur- chase one of the trucks broke down and one of the six drivers quit. Thereafter, the Company employed only five regular drivers.' On occasions, as necessary, other plant employees have been used to drive trucks. Thus, as of early 1973 the Company owned six large trucks and two small trucks. Thereafter, the Company brought two additional large bag and bulk trucks, one in fall of 1973 and the other in April 1974. About June 1, 1974, the Company sold one bulk truck 2 It is to be noted that this allegation of the complaint is related to an alleged violation of Sec 8(a)(5) and not to a violation of Sec 8(a)(3) or to an independent violation of See 8(a)(1) 3 From early January 1974, to the first week in May, when he quit, a sixth driver, Pete Butler, was employed 817 to Art Crowder, which was one of the vehicles that it had initially purchased from Crowder. According to George We- bel, the reason he sold the truck to Crowder in June 1974 was, first, that the Company then owned eight large trucks plus two small trucks and employed only five drivers so that there was a surplus of trucks, and, second, as of that time the Company found that it had more split loads to deliver, that is loads of both bulk and bag feed, and had less need for bulk trucks. After the purchase of the trucks in February 1973, the Company made most of its customer deliveries itself. How- ever, it continued to use the services of Art Crowder to ship to its plant the ingredients which were bought from outside sources and to make long-distance deliveries such as to Kan- sas City. During the times material herein, in addition to George Webel, the following persons exercised managerial or super- visory authority on behalf of the Company: John Teuscher, general manager; Cecil Smith, office manager and also manager of the Company's trucking operations; Don Webel, who since May 17, 1974, has occupied the position of mill superintendent and prior thereto was employed as a sales- man; and Gene Webel, who prior to May 17, 1974, occupied the position of mill superintendent. B. The Organizational Activities The principal union activist among Respondent's em- ployees was Earl Hull who began working for the Company on June 1, 1971. Hull testified that in 1973 he, Clifford Wai- man (who was discharged during the slack season in 1973), and other employees solicited signatures to authorization cards on behalf of the Union. As they succeeded in getting only 10 signatures they decided that not enough employees were interested in union representation and discontinued their organizational efforts. Subsequently, in January 1974, a renewed interest in union representation developed because there was "a little bit of turmoil, talking about cutting the hours down because of a lack of production which normally starts that time of year...." Hull again obtained authoriza- tion cards and solicited employees to sign them. The signed cards were delivered to a union representative who filed a petition for certification of representative with the Board about February 22, 1974. George Webel testified that the first knowledge he had that employees were engaged in organizational activities came when he received a copy of the petition in the mail. On Monday, February 25, George Webel contacted Charles H. Meredith, a labor relations specialist, and retained him to represent the Company. A hearing was held in the representa- tion proceeding, Case 14-RC-7590, in mid-March at which Earl Hull testified for the Union. Following the hearing an election was conducted on April 30, 1974, among the em- ployees in the unit described above. The tally of ballots shows that, of approximately 16 eligible voters, 11 votes were cast for the Petitioner, 2 votes were cast against the Petitioner, and 3 ballots were challenged. The Union was certified on May 8, 1974, as the representative of the Company's employees. The Company was opposed to the organization of its em- ployees and General Counsel contends that conduct engaged in by Respondent unlawfully impinged upon employees' statutory rights. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Interference, Restraint, and Coercion The complaint alleges 13 specific incidents of violation of Section 8(a)(1). The evidence in respect thereto will be dis- cussed below in the same order as they are pleaded in para- graph 5 of the complaint. On February 27, 1974, George Webel mailed to each em- ployee in the bargaining unit a two -page letter urging them to vote "`No'when the time comes." Among other things the letter contains the following: 3. If the company doesn 't give what the union want.; the company will not be able to operate in the event of a strike. ANSWER: If the employees go on strike, and we hope this never happens, they cannot get unemployment compensation-the employees who do not want to strike, will be able to continue to work, and the law will protect them-employees who go on strike, can be re- placed with other employees, and when they are re- placed, they have no job. In the context of references to unsuccessful strikes at two other companies in the area, as General Counsel argues, "the remark about losing jobs in the letter should be seen and viewed as a threat to discharge economic strikers." Further- more, the letter would lead employees to believe that once a replacement has been hired to fill the job of a striker that employees thereafter has "no job," or, phrased differently, he would have no rights to reinstatement. This is contrary to the applicable law. For the reasons stated in Hicks-Ponder Co. A. Division of Blue Bell, Inc., 186- NLRB 712, 725 (1970), affd. 458 F.2d 19 (C.A. 5, 1972), I find, in agreement with General Counsel, that Respondent's letter of February 27, 1974, con- stitutes a violation of Section 8(a)(1). There is undenied testimony that, on the occasions dis- cussed below, Mill Superintendent Gene Webel advised em- ployees, in effect, that if the Union should win the pending election George Webel would close the plant. Thus, Donald Bruce Rush testified that about 3 weeks before the election Gene Webel stated to him in the presence of another em- ployee, Gerald Cawthon, that "George [Webel] would not allow a union in the plant, that he'd close the doors first." According to Rush, on another occasion, sometime in April, Gene Webel told Rush and another employee, Dave Mulford, that "if the union went in, George [Webel] would close the doors, that he wouldn't allow a union in the plant." Bruce Zumwalt testified that about 2 weeks before the election dur- ing a discussion with Gene Webel the latter said, "I think that he [George Webell would give the mill away before he would allow a union in here." In a similar vein, Earl Hull testified that in late March 1974 he was engaged in a conversation with two other employees, Dave Mulford and Gerald Conk- right, about the pending election and, as Mulford said that the Union was going to make it this time, Gene Webel came by and remarked, "Well, if it does, George [Webel] will close her down." Hull further testified that he heard Gene Webel make similar statements five or six times between that date and the date of the election. Gene Webel was not called as a witness, although the record indicates he was in the Com- pany's employ at the time of the hearing. George Webel testified that he never told Gene Webel that he would not tolerate a union and further that he did not authorize Gene Webel to make, any statements about the subject. However, at the time the statements were made Gene Webel was mill superintendent and-was therefore a general agent of the Com- pany. Accordingly, the threats described above are attributa- ble to the Company and as they were clearly coercive the Company thereby violated Section 8(a)(l) of the Act. The complaint alleges that about March 1, 1974, George Webel promised employee Gerald Cawthon a pension plan and about March 13, 1974, Foreman Gene Webel promised employee Earl Hull a pension plan, in both instances to dis- courage employee support for the Union. George Webel testi- fied that the subject of a pension plan had been under consid- eration by management for about a year and a half and that the conversations referred to occurred prior to February 22 when he first learned about the employees ' organizational activities. Cawthon in his testimony did not directly fix the date of his conversation with Webel, but was asked the fol- lowing question by General Counsel, "Do you recall a discus- sion you had with George Webel down below the mill early in March?" His answer was, "Yes, sir." Similarly, Hull did not testify directly as to when the conversation with Gene Webel occurred, but General Counsel put to him the follow- ing question: "I want to call your attention now to early March, 1974, and ask if you had a discussion with Gene Webel at the pellet mill." Hull answered, "Are you-I have had several discussions with him . The one that comes to mind would be when he mentioned the pension plan to me at that time." In both situations General Counsel , in effect, sug- gested the dates of the respective conversations to the wit- nesses which dates they offhandedly adopted. Where, as in this instance, the dates when particular events took place become significant, an affirmative answer by a witness to a leading question which suggests the date to the witnesses, in my opinion, has less value than the considered testimony of a witness who fixes the date himself. Furthermore, George Webel described other circumstances which enabled him to recall more clearly the times when the relevant events oc- curred. I credit George Webel that the Company learned of the employees' organizational interest and, therefore, I find that General Counsel has not proved these allegations of the complaint. Subparagraph G alleges: "On or about April 16, 1974, Owner George Webel promised an employee a better job and a pay increase in order to discourage that employee's support for the Charging Party." In support of this allegation em- ployee Gerald Cawthon testified that about 2 weeks before the election he had a conversation with George Webel and, according to Cawthon, "he told me that I could have the bagger or the drive, whichever I wanted " General Counsel argues, "[I]t is clear that these positions meant an improve- ment in Cawthon's work assignment. A violation should be found inasmuch as the offer of advancement came during a pre-election period when Cawthon could reasonably under- stand, in view of the remarks of both George Webel and Gene Webel, that advancement was available but not for union adherents." Unfortunately, the proof does not support the argument. First, there is no evidence in the record that the positions of bagger or drive represented an improvement in Cawthon's work assignment. Further, except only for the fact that the conversation occurred 2 weeks before the election, GEORGE WEBEL & PIKE TRANSIT COMPANY there is no evidence in the record suggesting that George Webel's offer was in any way related to the organizational activities taking place in the plant or in order to discourage Cawthon's support for the Union. Accordingly, I shall recommend dismissal of this allegation of the complaint. Subparagraph H alleges: "On or about April 23, 1974, Owner George Webel promised an employee more hours of work and an increase in pay rate in order to discourage that employee's union activities." General Counsel relies on the testimony of Allen Horton, who was hired by the Company on April 8, 1974, to support this allegation of the complaint. Horton testified that approximately 1 week before the elec- tion George Webel call him aside and engaged him in a conversation. According to Horton, "George asked me if I was going to be with us-I don't know who he meant by `us' but he was speaking for himself-if they had a strike or if the union help went out, and I said that I didn't know, I was just sitting there listening, and then he said that, `Well, I'll take your hours from here on out and after this union deal is taken care of I'll take care of you,' and then he said something about $10,000 a year." On cross-examination with respect to the same subject, Horton testified, "He talked about if I was going to come in if they had a strike or if the union went out, and that I'll take your hours from here on out and we'll figure it up, and then at the last he said if $10,000 would be O.K., and I said I'd think about it." George Webel categorically denied having had any such conversation with Horton. How- ever, Webel testified that during Horton's employment inter- view Horton inquired how much he would earn and Webel answered that it would depend on the Company's needs and the number of hours that Horton worked and that his earn- ings would "run from seven to ten thousand ...." I credit Horton's testimony rather than George Webel's conflicting testimony." Accordingly, I find that, on the occasion testi- fied to by Horton, George Webel promised Horton that if he would work during a strike which might occur then George Webel would "take care of' him and suggested that he would then be in a position to earn about $10,000 a year. Such promise of benefit to induce an employee to refrain from making common cause with other employees constituted an unlawful infringement upon employees' Section 7 rights and therefore violates Section 8(a)(1) of the Act. Subparagraph I recites: "On or about April 26, 1974, Owner George Webel granted certain employees a free dinner in order to discourage their union activity, which dinner was provided at the Carriage House Restaurant in Hannibal, Mis- souri." The evidence shows that the dinner did not take place on April 26, 4 days before the NLRB election, but rather on the day after the election. Present at the dinner were George Webel, John Teuscher, Cecil Smith, Don Webel, and Gene Webel. In addition to the supervisory personnel there were also present five salesmen, five mill employees who included Gerald Conknght and Harold Shoemaker, and three rela- 4 George Webel gave his testimony in a hesitating manner and appeared from time to time to be uncertain of the events about which he was being questioned Also, there was a tendency on his part to give generalized answers and facile explanations for events without specific details which would have made his testimony more meaningful On the whole, George Webel did not impress me as being a reliable witness who conscientiously was seeking to answer the questions put to him straightforwardly and with- out equivocation. 819 tively new employees, Ed Reinhart, Mike Trout, and Allen Horton. According to General Counsel's witness Allen Hor- ton, after the dinner was concluded George Webel asked the group whether they would be "with us" if the Union went on strike. Webel explained that in the event of a strike the sales- men would drive the trucks, the balance of the employees would work in the mill producing feed, and some farmers would continue to patronize the Company as long as they could get feed. George Webel testified that the meeting was initiated by the salesmen, who were concerned about their employment should a strike occur, and his remarks as to what would be done in the event of a strike were made in answer to questions addressed to him. Accepting Horton's tes- timony, I find that it does not support-the allegation of the complaint that employees were given a free dinner to discour- age their union activity. Accordingly, I shall recommend that this allegation of the complaint be dismissed.' Subparagraph J recites: "On or about May 3, 1974, owner George Webel threatened employees with layoff if they con- tinued to engage in union activities." In support of this allega- tion Gerald Cawthon testified that about 3 days after the election in a discussion with George Webel, "he mentioned that if we had a union in the mill that we would have to lay off some help because we would have too much manpower." Without further clarification this comment is ambiguous. At the time of the conversation the Union had already won the election. The Company did not contest the election and began negotiations with the Union promptly. In this setting I cannot agree with General Counsel's argument that the remark con- stituted notice that the continued existence of the Union in the mill would lead to layoffs. Accordingly, I shall recom- mend that this allegation of the complaint be dismissed. The next incidents occurred on May 4, 1974, when Joseph Womble was applying to George Webel for a position. Ac- cording to Womble, Webel told him that "the union has been voted in here and . . we are going to fight it." Also, Webel asked him whether he would work if a strike should occur. Womble replied in the affirmative. Webel assured Womble that he would not have anything to worry about because Webel had talked to the local and state police. Womble asked if he would be able to advance to a better position and Webel replied that there would be job openings because some people probably will leave because of the union situation. General Counsel does not contend that this conversation constitutes unlawful interrogation. Without considering George Webel's contrary version of the meeting I find that this testimony on the part of Womble does not support the allegation of the complaint that, "Owner George Webel promised an em- ployee a better job if the employee-refrained from supporting the Charging Party." However, during the same interview, according to Womble's further testimony, which I credit de- spite Webel's denial, Webel said that Womble would "be better off not to associate with some of the union members that had voted in the union." I agree with General Counsel that such suggestion constitutes an unlawful infringement 5 General Counsel argues in his brief that the presence of Horton and the other two new employees, Trout and Reinhart, at this meeting indicates that management considered them to be employees who would refuse to support a strike. From this, as discussed below, General Counsel infers that when Horton was later laid off it was because the Company believed it could no longer rely on him to work in the face of a strike. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon employees' statutory rights. When, as in this case, an employee is instructed not to associate with other employees who are known to favor the Union, such instruction consti- tutes a restraint upon and interferes with the employees' right to engage in concerted activities for the purpose of mutual aid and protection. Even though the remark by George Webel was phrased in the form of a suggestion, in the context of a discussion where Webel had informed Womble that Webel was going to fight the Union, the remark was likely to be understood by Womble to mean that if he were to associate with union supporters he would displease Webel and might be subject to reprisals. I find that the incident constitutes a violation of Section 8(a)(1). The last- 8(a)(1) allegation relates to an event which took place about a week after the election. Gerald Cawthon testi- fied that Don Webel asked him if employees Al Horton and Joe Womble ' were going to union meetings. Cawthon re- sponded that they were. In the context of Respondent's other unlawful activities, described above, and discussed below, including the unlawful discharge of Earl Hull, Don Webel's questioning Cawthon as to whether two employees were at- tending union meetings would suggest that Respondent was -interestediri discovering who would support the Union in the event of a crisis, such as a strike, and might use such informa- tion to the disadvantage of employees who in the eyes of management were deemed disloyal. In these circumstances the interrogation of Cawthon concerning the union activities of employees Horton and Womble constituted a violation of Section g(a)(1). D. The Refusal To Bargain The Union won an election in a unit of Respondent's pro- duction and maintenance employees , including truckdrivers, on April 30,1974. A certification of representative was issued on May 8, 1974. Negotiations began soon thereafter. The first session was held on May 14 and the last of six sessions was held on June 19. Representing the Company at these meet- ings were Charles Meredith, a labor relations consultant, and General Manager John Teuscher. Representing the Union was International Representative Lloyd Freilinger and an employee committee composed of Earl Hull, Delbert Ruble, and Bruce Zuniwalt. The parties were unable to reach an agreement and the Union called a strike which began on June 20. While General Counsel contends that Respondent has engaged in the violations of Section 8(a)(5), discussed below, there is no contention that Respondent failed to negotiate in good faith and there is no contention that the strike is an unfair labor practice strike. Two days after the election, on May 2, without prior notice to the Union, the Company distributed to its truckdnvers the following notice: 2. No employee shall leave any truck running when not necessary.- - 3. No truck shall be left unattended. 4. Drivers on the delivery schedule shall not stop for coffee, personal errands or other reasons except for their scheduled lunch period. At such times, the motor will be turned off and the cab locked. 5. Any truck carrying a product shall deliver the product before taking a lunch break. Fuel costs and delivery costs must be reduced. Items 1,4, and 5 represent changes in the drivers' operating instructions which adversely affected their conditions of em- ployment. In addition, driver Delbert Ruble testified without contradiction that on the day after the election he and another driver, Pete Butler, were informed by Cecil Smith that "George [Webell said no coffee breaks ...." Prior thereto the drivers customarily were permitted two 10- minute coffeebreaks which they took whenever they had the opportunity. It is well settled that good-faith compliance with Section 8(a)(5) of the Act presupposes that an employer will not make unilateral changes in wages or working conditions without affording the employees' statutory representative an oppor- tunity to bargain collectively with the employer about such changes. N.L.R.B. v. Katz, Benne, etc. d/b/a Williamsburg Steel Products Co. 369 U.S. 736 (1962); N.L.R.B. v. Cromp- ton-Highland Mills, Inc., 337 U.S. 217, 221, 225 (1949). Such unilateral action "tends to subvert the union's position as the representative of the employees ...." N.L.R.B. v. Insur- ance Agents' International Union, AFL-CIO [Prudential Ins. Co.], 361 U.S. 477, 485 (1960). In defense of its action Respondent in his brief argues: "By promulgating modest new rules for its truck drivers to help conserve fuel, the Company did no more than initiate de minimus changes, solely for economic reasons, which had admittedly no significant adverse impact upon the drivers themselves." Contrary to Respondent, the above-described changes in the conditions of work of the drivers are not de minimus Meal and coffee breaks are significant conditions of employment and rules in regard thereto are with great fre- quency incorporated in collective-bargaining agreements. Furthermore, the opportunity to use a company vehicle for personal transportation is a meaningful employment benefit. As the Supreme Court has pointed out unilateral action by an employer "will rarely be justified by any reason of substance."6 Accordingly, I find that the changes made by Respondent in the conditions of work of its drivers as pro- mulgated on May I and 2, 1974, constituted violations of Section 8(a)(5).7 It is immaterial that when the Company made the above-described changes in the conditions of work of its drivers the Board had not yet certified the Union and TO: All Truck Drivers During the past few weeks, we have noticed several things happening in our truck delivery area. We must, therefore, advise you that effective Friday, May 3, the following rules will be in effect. 1. No truck may be driven to the employee's home for lunch, errands or at night, except with written authori- zation in advance signed by Cecil. 6 N.LR.B. v. Katz, supra, 747 7 Delbert Ruble testified that on the first Saturday after the April 30 election he was assigned the chore of sweeping the mill premises and on the second Saturday after the election he was assigned to move concrete blocks and steel posts-tasks which he had never previously been asked to perform. As General Counsel did not adduce evidence describing the nature of the work the Company's truckdnvers had been accustomed to do prior to the election when they were not engaged in driving their vehicles, this tes- timony by Ruble is insufficient to establish that an unlawful unilateral change in a condition of his employment had been effected. GEORGE WEBEL & PIKE TRANSIT COMPANY the parties had not yet met for the purposes of collective bargaining. After the election on April 30 Respondent knew that the Union had been designated as the representative by a majority of its employees. Thereafter it could not lawfully make any changes in the terms and conditions of employment of its employees without advance notice to the employees' representative and without affording the representative an opportunity to bargain about the subjects.' At the first bargaining session, held on May 14, 1974, the Union, among other things, proposed changing the wage ba- sis for the truckdrivers from a weekly salary to an hourly rate of about $4 per hour, which would represent a significant increase in the drivers' earnings, and with overtime after 8 hours' work per day and for work performed on Saturdays and Sundays. According to Lloyd Freilinger, after some dis- cussion, Meredith said that the Company would respond at the next meeting. Meredith, on the other hand, testified that, because he believed that the Company's pay arrangement for its drivers might have been in violation of the Wage and Hour Law, he responded that the Company was willing to pay the drivers an hourly rate instead of a salary . According to Mere- dith, "I said, `The first thing is let's put them on hourly rate, time and a half after 40, and in the consequence of negotia- tions we'll develop what their new rates should be and whether they should get time and a half over eight or over forty, but now we're on hourly rate, and we agree with you."' The Union answered that they still wanted to talk about time and a half after 8 hours of work . According to Meredith's further testimony, he replied, "'When we get our counter- proposals ready, we can get into that , but this has to be done and we think its to the mutual advantage of both of us to do it.' No one hit the ceiling or no one raised cane. We went on to another subject." I do not credit Meredith to the extent that his testimony suggests that an agreement was reached, whether explicitly or implicitly , which provided for a change in the method of paying the drivers from a salary basis to an hourly basis. Not only would such testimony conflict with Freilinger's testimony, which I credit,9 but also with Mere- dith's own minutes of the meetings. These minutes make no reference to any such agreement and in part state that after Freilinger had presented the Union's proposals at the May 14 meeting, "The Company will agree to study and review the Union's proposals and on Monday, May 20 , at 9:30 a.m., at the same location, the Company will have a contract proposal to offer covering only the body of the contract and no eco- nomic items will be considered until the framework of the contract is agreed upon." Between the May 14 bargaining session and the next meeting on May 20, the Company changed the pay arrangement for its drivers from a weekly salary to an hourly rate and published the following notice to its drivers with respect thereto: As you are aware the volume of orders and shipments has dropped sharply because of unsettled beef and pork price conditions. 8 Laney & Duke Storage Warehouse Co., Inc., 151 NLRB 248, 266-267, affd. 369 F 2d 859 (C.A. 5, 1966) 9 Freilinger gave his testimony in a thoughtful, careful manner and im- pressed me as being a reliable witness. 821 It is impossible for the Company to continue to keep you on for the full week when business does not justify it. In computing your weekly rate, the method used was 40 hours of straight time and the remaining 14 hours at time and one-half, or a total of 61 hours. For those employees who are earning $150.00 a week this means that your hourly rate is $2.45. Effective Monday, May 20, you will be paid on your hourly rate, and the Com- pany use you as much as it is practical to do so; however, they will reserve the right to send you home if business does not justify your continunig on the job. General Counsel argues that "although the actual eco- nomic impact on the drivers is potential," the real impact of Respondent's unilateral change lay in the fact that at the very outset of the negotiations, Respondent seized the-opportunity to implemment a unilateral change, and to embarrass the Union not only by making the change but by refusing to retract the change or to negotiate about it once Respondent's misconduct had been brought to its attention. Respondent's conduct was calculated to disparage the Union in the eyes of unit employees and to undercut the Union's position as the employees' selected collective-bargaining representative." I agree with General Counsel. [C]ompliance with the statutory obligation to "confer in good faith with respect to wages, hours, and other terms and conditions of employment" presupposes that the employer will not change wages or working conditions without first giving his employees' representative an op- portunity to consult and to bargain with him about the proposed change. Failure to afford such opportunity to his employees' representative is the equivalent of an an- ticipatory denial of the representative's request to negotiate about the subject and hence a constructive refusal to bargain. This follows from the fact that the statutory duty to bargain collectively presupposes that an employer will not impede or frustrate the bargaining process which is the almost inevitable result of a unilat- eral change in the terms and conditions of employment whereby the employees' representative is presented with a fait accompli. Furthermore, unilateral action by an employer which denies to a labor organization effective participation in a significant area of the bargaining rela- tionship tends to subvert the organization's position as the representative of employees and thus to interfere with the right of the employees to bargain collectively through representatives of their own choosing." Accordingly, I find that the Company's change in the method of paying its drivers without affording the Union an opportunity to bargain about the subject constituted a viola- tion of Section 8(a)(5). The final allegation with respect to the alleged violations of Section 8(a)(5)reads: "Since on or about June 3, 1974, the Respondent unilaterally and without prior notice to and bar- to sere was no evidence that any driver suffered a loss in weekly earn- ings, but, the potential for such loss exists if, as was suggested by the notice, the hours of work should be reduced. " The Orion Too], Die and Machine Company, 195 NLRB 1080, 108,7 (1972). 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining with the Charging Party, eliminated a job for a unit employee by selling one of its trucks and contracting out the work done by a unit employee." The evidence is that on June 1, -1974, the Company sold a bulk truck to Art Crowder. The Company then owned eight large trucks and two small trucks and employed five drivers. Therefore, the sale of one truck did not, as alleged in the complaint, eliminate a job for a unit employee. In his brief General Counsel argues: "Respondent did not notify or bargain with the Union about its decision to eliminate one of its 6 driver positions . . . . Consequently, it was undisputed that Respondent unilaterally undertook the action which amounted to transferring out one of the unit's 6 driver jobs, together with truck, to Crowder." The difficulty with this argument is that it is unsupported by the record evidence. The Company as of the date of the sale had only five regular drivers, not six. After the sale-the Company still employed five regular drivers. Accordingly, no driver posi- tion was eliminated by the sale of the truck. However, in addition to its regular drivers, the Company, from time to time and as needed, assigned other plant personnel to drive trucks. Cecil Smith testified that prior to June 1, 1974, when the truck was sold to Crowder all local deliveries from the plant to its customers were made by company personnel and Art Crowder was not employed for such purpose, although Crowder was used for all incoming shipments and long-haul deliveries. However, after June 1, according to Cecil Smith, Crowder began making customer deliveries of about one and a half loads per day which represented about 4 to 6 hours work for a single employee. Smith further explained that such customer deliveries by Crowder resulted in the reduction of late trips by company employees and served to accomodate customers by expediting deliveries of feed to them. I find that as of June 1 the sale of the truck did not serve to eliminate a job for a unit employee. However, after June 1 the Company used Art Crowder to make some deliveries for it, which theretofore had been performed by unit personnel, and as an average would have required 4 to 6 hours work per day by a single employee. Such contracting out was not suffi- ciently substantial to require the employer to give advance notice to the Union. The action did not affect any specific unit 'job although the unit as a whole was deprived of approxi- mately 4 to 6 hours of work per day. In view of all the circumstances, including the fact that the Company's use of Art Crowder to make some local deliveries after June 1 did not result in any "significant detriment"" to employees in the appropriate unit, I shall recommend dismissal of this allegation of the complaint.13 E. The Alleged Discriminations The complaint alleges that the Company about May 22, 1974, unlawfully laid off Earl Hull and Bruce Rush and that on May 23 the Company laid off or terminated Earl Hull, Bruce Rush, Joseph Womble, and-Allen Horton. Since March 1974 Earl Hull and Bruce Rush alone worked on the night shift producing feed. On Saturday, May 18, in the Company of John Teuscher, Don Webel went to the home of Earl Hull and delivered to him a notice of layoff signed by John Teuscher, manager. The notice reads as follows: "Earl Hull [sic] has notified the Company that he will need to be off several evenings this coming week. With the current drop in business volume it is, therefore, not possible to operate the night shift for the coming week. Those employees on the night shift will be laid off and recalled when business volume justifies."14 On that Monday Bruce Rush was notified in person by Don Webel that he too was laid off. Subsequently, each of the four persons who is alleged to have been dis- criminatorily laid off or terminated received a letter from George Webel dated May 23, 1974, which reads as follows: We regret to inform you that the current unsettled cattle and hog market makes it impossible to continue at our present level of operations. Our production is down. Effective on Monday, the 27th of May,-we are elimi- nating the night shift operations and at that time we will lay-off for an indefinite period the four (4) most recently hired employees who are doing production work only. There seems little hope that we will be needing your services, and if you will be able to secure other employ- ment, we would advise that you consider it seriously. We regret that this action is necessary. General Counsel argues that these layoffs were directed against employees who supported the Union "in order to discourage employees from engaging in union and/or pro- tected concerted activities." Respondent contends that its business is seasonal, that a slack period begins in early sum- mer, and that the layoffs in this case were economically justi- fied because of the decline in business. Furthermore, Re- spondent argues that the layoffs were made strictly in accordance with seniority, that the four most recently hired production employees were laid off (two maintenance em- ployees with less seniority than Hull and Rush were re- tained), and that the layoffs in May 1974 followed patterns established in prior years. It is undisputed that the Company's operations are subject to seasonal fluctuations. The slowest period is fate spring and summer. General Manager John Teuscher testified that the seasonal drop in business in 1974 was greater than in previous years. Two exhibits were introduced in evidence by Respond- ent (Exhs. 2 and 3) which purport to substantiate this conclu- sion. Respondent did not adequately analyze and explain the figures on these exhibits either at the hearing or in his brief. I find that the exhibits are not helpful in determining whether the seasonal drop in business was greater in 1974 than in previous years.l5 12 There is no basis for finding on the evidence in this record that had the Company not contracted out the 1-I /2 delivery loads per day after June I it would have saved a job for one of the employees who had been laid off in May It would appear from Smith's testimony that the work contracted out would have had to bedone on an overtime basis, rather than as part of the Company's regulai daily routine 13 Westinghouse Electric Corp., 153 NLRB 443, 446 (1965); American Oil Company, 171 NLRB 1180 (1968), Union Carbide Corporation, 178 NLRB 504 (1969) 14 Earl Hull testified, without contradiction, "I had asked Don Webel the previous week for a night off the following week because my mother was going to be in the hospital for an operation." Don Webel responded that he could have the night off. 15 In a pretrial affidavit George Webel averred: "We have not had a layoff comparable to the present one in- the past In June or July 1973 we did terminate several people The reason for the four layoffs this year lies in the fact that we have more employees in the mill." GEORGE WEBEL & -PIKE TRANSIT COMPANY As happened in 1974, in 1973, and in earlier years, the night shift was discontinued in the spring. In 1973 Earl Hull and Bert Scranton were the employees on the night shift. When the night shift was discontinued, Hull was transferred to the day shift as the pellet `mill operator and Scranton quit the Company's employ.16 In addition, in 1973, Clifford Wai- man, a day-shift employee, who was on vacation when the night shift was discontinued, was discharged; Delbert Ruble, a truckdriver, was laid off for 2 weeks; and Bill Miller was laid off for 1 week and then quit after his return to work. As issue in the case concerns the duties and status of Mike Trout, who was hired on March 17, 1974, and Ed Reinhart, who was hired on March 25, 1974. According to George Webel, they were hired to do maintenance work and occa- sionally to do production work on a fill-in basis. Since they were hired Reinhart has done only maintenance work and has not learned to operate any machines. Trout, who is an electri- cian, in addition to doing electrical work, operates the bagger when the assigned operator is absent. Trout and Reinhart are paid on a basis of the tonnage of feed produced in the mill. The only other employees who are paid on such basis are John Teuscher, Cecil Smith, Gene Webel, Don Webel, and Gerald Conkright. All other employees are paid by the hour or by the week. Trout and Reinhart earn considerably, more than the other mill employees. According to Bruce Zumwalt, a member of the Union's negotiating committee, Trout de- voted about 2 days per week to electrical maintenance work and the balance to production work while Reinhart, except that, he "worked in the drive once in awhile," did only main- tenance work and did not operate any production equipment. Zumwalt further testified that at the first bargaining session he complained that maintenance was not being attended to. In regard thereto at the hearing he was questioned as follows: Q. Did Mr. Meredith or Mr. Teuscher then make any response to that when you made those comments about safety and about maintenance? A. Yes. Q. What did they tell you? A. They told me that this stuff was being corrected since Ed Reinhart and Mike Trout had been hired. Q. Did they say that that's what they were hired for, to take care of this maintenance-and these safety prob- lems? - A. They said that Mr. Trout was hired as electrician, and Reinhart was hired as maintenance. Q. I see. Well, did they say that that's what they were hired for, to take care of this unsatisfactory maintenance situation? A. Yes, I think they did. Q. Did they say anything about Reinhart and Trout correcting some of these unsafe conditions at the plant? A. Yes. Q. Did you disagree with that when they made those comments? A. No, I didn't, but I thought that there should be more done than what had already been done. 16 Hull testified that Scraton quit because he found another job On cross-examination Hull modified this testimony by explaining that Scranton "was gone for a short time and then came back, and then he left again " 823 Q. Did you feel that they should have hired another maintenance man? A. No. Q. You thought Reinhart and Trout were sufficient to take care of it? A. Yes.- Q. Well, sitting here now, Bruce, would you say that you are satisfied that these two fellows were hired as maintenance men? A. Just Reinhart. Q. Why would you exclude Trout? A. He was hired as an electrician is what I was told. Q. Oh, I see. Trout as an electircian and Reinhart as maintenance man? A. Yes. I find, contrary to General Counsel, that Trout and Reinhart are qualified maintenance workers, and that, when they were hired by Respondent, the Company had considerable main- tenance and repair work to do and further that General Coun- sel has not established that any of the four alleged dis- criminatees had similar qualifications or could have discharged the duties performed by Trout and Reinhart. The record in this case is inadequate for me to determine whether in 1974 the summer business slump was greater than in 1973 or whether in, 1974 there was more employees on the payroll so that even if business fell only to the same extent as in, 1973 the Company had valid justification for laying off a greater number of employees than in 1973 . It is noted, how- ever, that in the summer of 1973 the night shift was discon- tinued, two employees were terminated, two other employees were laid off for short periods of time, and one of them later quit. Thus, it would appear that there were legitimate eco- nomic reasons for laying off some employees in 1974. In his brief, General Counsel argues: The motivations behind Webel's manpower manipula- tions in the Spring of 1974 were not those of strictly economic dollars and cents factors, but rather of anti- union considerations, underscored by the fact that he hired new employees like Trout, and Reinhart, and then Womble, and Horton as seasonal slack season was rap- idly approaching-counting on all four of these to be strikebreakers. Respondent was training his salesmen and supervisors how to run the trucks so he could sur- vive a strike involving his truckdriver employees.17 While it is appropriate for General Counsel to speculate as to the motivation for Respondent's conduct, the evidence in the record is insufficient to support a finding that the four men were hired as strikebreakers. In particular, it is undisputed that when these employees were hired there was substantial maintenance work to be performed in the plant and Trout and Reinhart were specially qualified to perform such work.18 General Counsel also contends that other employees in the plant were qualified to do maintenance and repair work 17 A few days after the election some effort was made to teach salesmen and supervisors to drive trucks The record is silent as to the extent of this endeavor and whether it went beyond a single day is Prior to the employment of Trout and Reinhart Respondent had used contractors to do its repair and maintenance work and both Trout and Reinhart previously had worked for such contractors in Respondent's plant 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and therefore there was no reason for Respondent to retain Trout and Reinhart in preference to more senior employees when layoffs became necessary. There are several defects to this argument. The record indicates that only Don Hull, and Gene Webel had done plant repair and maintenance work in the past. However, since Respondent acquired its truck fleet, Don Hull has been devoting full time to vehicle repairs. Gene Webel who had been mill superintendent was reassigned to operate the pellet mill and there is no indication as to the extent to which Gene Webel performed repair and mainte- nance work in the past. In addition, the record is silent as to whether Don Hull and Gene Webel possess the same range of skills as Trout and Reinhart. I. Horton and Womble Allen Horton was hired on April 8, 1974. At his employ- ment interview he informed George Webel that he was quali- fied to drive trucks. For the "first couple of weeks" after his hire he drove a truck most of his working time. Later he was shown how to do other tasks about the mill and progressively did less driving so that during the last 2 weeks before his layoff he did almost no driving. During his employment interview George Webel men- tioned that there was a union campaign in progress and in- quired whether Horton was afraid. Horton assured Webel that he was not afraid and informed Webel that he had never had dealings with a union.19 About a week before the elec- tion, George Webel spoke with Horton about the possibility of a strike and promised Horton that should there be a strike he would "take care of" Horton and suggested that Horton then would be in a position to earn about $10,000 a year. On several other occasions before the election George Webel asked Horton whether he was "going to be with us" in the event of a strike to which Horton's replies were, "I really don't know."20 Horton also attended the dinner meeting, discussed above, the night after the election. Horton testified that when he received his notice of layoff he asked Don Webel why he was being laid off and Webel replied, "Well, I really can't tell you that, I'd be sticking my neck out if I did." Horton's union activities were minimal . Before the election he attended one or two union meetings and after the election he attended five or six union meetings. Joseph Womble was hired on May 8, 1974. Womble testi- fied that during his employment interview George Webel inquired if he would come to work in the event of a strike and he replied in the affirmative. Webel assured him that he would not have anything to worry about because Webel had talked to the local and state police. During the interview Womble inquired what the opportunities for advancement would be and Webel responded that probably some people would leave because of the union situation which should create job openings. Womble further testified that during the interview George Webel said that the Union-had been voted in, and "We are going to fight it." George Webel also sug- i9 Horton also testified that during the employment interview Webel said, "Well, you know what I feel about the union." 20I credit Horton despite George Webel's testimony that he did not recall any conversation where he asked Horton whether he would work during a strike gested to Womble that he would be better off "not to associ- ate with some of the union members that had voted in the union." Womble attended one or two union meetings before his layoff and engaged in no other union activity. About a week after the election, Don Webel asked Gerald Cawthon whether Horton and Womble were going to union meetings and Cawthon responded that they were. Respondent's defense as to Horton and Womble simply is that with the onset of the summer business slump these two employees, who were the last hired, were selected for layoff. Various factors suggest that their layoffs may have been dis- criminatorily motivated, such as, the suggestions by George Webel that he expected them to work in the event of a strike (although they were laid off before the strike occured), We- bel's possible disappointment when he learned , in conse- quence of Don Webel's interrogation of Cawthon, that they had attended union meetings , and the indications he gave the two men when they were interviewed for employment that their positions were not temporary. However, these factors do nothing more than develop a suspicion that the layoffs may have been unlawful. Of overriding consideration is that Gen- eral Counsel has not overcome the evidence adduced by Re- spondent that in the summer of 1974, as in prior years, busi- ness volume declined and in response to such economic pressure, also as in prior years, he effected a layoff and Hor- ton and Womble who had the least seniority were laid off. It is noted also that their union activities were minimal . I shall recommend that the allegations that Horton and Womble were discriminatorily discharged be dismissed.21 2. Earl Hull and Donald Bruce Rush Earl Hull was hired by the Company on June 1, 1971, as a pellet mill operator. He initiated the organizational cam- paign at the Company's mill, he testified for the Union in the representation proceeding, he acted as the union observer at the April 30, 1974, election, and he was a member of the Union's negotiating committee. In the spring of 1973 Hull was working on the night shift. When the night shift was discontinued that year Hull was transferred to operate the pellet mill on the day shift. That position had become vacant because Clifford Waiman, the day-shift pellet mill operator, was terminated. About March 25, 1974, Earl Hull was again assigned to the night shift, this time as the mixer operator. Hull testified that Joe Weber who 21 In his brief General Counsel argues: "In fact , Webel never explained why he hired Womble in the first place, at a time when he knew his spring slack season was soon coming up. . None of the Webels ever offered any reason at all why Respondent would have gone to the trouble of hiring Womble, as its slack season approached, if he was going to lay him off in gust a couple of weeks." In advancing this argument General Counsel over- looks the following testimony of George Webel given on both his direct and cross-examination On direct examination, George Webel testified with re- spect to the employment of Horton and Womble, "We had a lot of cleaning on the roof that we had let go from last fall and a lot of work around the mill needed cleaning , which we do every spring." On cross-examination, in response to a question concerning the kind of job for which Womble was hired, George Webel testified: "Just mostly clean-up work and odd jobs. There wasn't any definite time. I said we'll have to see how things work out, how long a job he'd have or if we'd have work. It is seasonal At that time, why, he told me that he didn't have a job and I thought, well, he could come and help us out a few days or see how it goes, if we needed somebody we'd go ahead." GEORGE WEBEL & PIKE TRANSIT COMPANY had been the mixer operator on the night shift suffered an accident and was laid off and Gene Webel explained to him that he was transferred to the night shift because he was "the youngest qualified man for the job." Respondent's explanation for selecting Hull for layoff is fraught with suspicious inconsistencies and anomalies. On May 18, he was notified that the night shift was being discon- tinued because purportedly he had notified the Company that he would be off several evenings that week. However, in fact, Hull had obtained permission to take only one night off. At the May 20 bargaining session when Meredith was pressed to explain why the night shift had been laid off, he gave the following reasons: (1) an employee had requested time off; (2) there was going to be a shutdown for some repairs; and (3) as a result the Company felt that it could dispense with the night shift. In contrast, George Webel testified that the reasons for Hull's layoff (and also for the layoff of Donald Bruce Rush who worked on the night shift with Hull) were: (1) the night shift was 25 percent less productive than the day shift; (2) he did not know whether it was the fault of the' pellet mill operator, Rush, or the mixer operator, Hull, "but it got to be about every morning there for awhile" that the night-shift employees left the dies plugged so that the day-shift em- ployees then had to spend 3 to 4 hours cleaning the dies; (3) business volume was the lowest in several years; and (4) Hull and Rush had the least seniority. With regard to the night shift's alleged poor production, George Webel testified that the matter had been called to his attention and he had in- structed Gene Webel to speak to Hull about the subject. Plant Manager John Teuscher testified that he had recom mended to George Webel that the night shift should be dis- continued. He was prompted to do so because (1) its produc- tivity was low and (2) as a result of economic uncertainties and reduced business volume the Company's needs could be produced on one shift. Teuscher was uncertain as to whether he spoke to Earl Hull about his low productivity on the night shift. Teuscher's further testimony shows that: (1) as early as late March he was aware of the low productivity of the night shift; (2) his investigation indicated that it was due to plugged or choked dies in the pellet mill machine, which probably was caused by improper regulation of a steam valve by the opera- tor, Donald Bruce Rush; (3) he had instructed Mill Superin- tendent Gene Webel "to bring production up" and he himself had instructed Rush regarding the regulation of the steam valve; and (4) he had observed no deficiency in Hull's work. Upon further examination by Respondent's counsel and in partial contradiction of his earlier testimony, Teuscher testi- fied that he had come to the conclusion that production on the night shift was bad because the employees either were loafing or lacked skill in operating the machines. Donald Bruce Rush was hired by the Company in August 1973. He was transferred to the night shift in October 1973 and worked on the night shift continuously until he was laid off. Rush signed a union authorization card at the request of Earl Hull and attended most of the union meetings. However, he 1 estified that he had no reason to believe that the Company considered that he was more active in the Union than anyone else. He further testified that in January 1974 Gene Webel spoke to him about his poor production in connection with the operation of the pellet mill machine. 825 I find, as in the cases of Horton and Womble, that there are factors which suggest that the Union's successful organi- zational campaign in the face of the Company's opposition might have had some influence upon the decision to lay off Donald Bruce Rush. However, as Rush had been working for the Company for less than a year when he was laid off, as he was not active in the Union's campaign or affairs, and as the night shift on which Rush had been working for most of the time that he was employed by the Company was discontinued for legitimate economic reasons, I fmd that General Counsel has not sustained the burden of proving that unlawful union considerations motivated or influenced Rush's layoff. I reach a different conclusion in the case of Earl Hull. Hull, at the time of his layoff in May 1974, had been employed by the Company continuously for more than 3 years. His work was satisfactory and in previous years he had not been laid off even though in 1973 he had been working on the night shift when that shift was discontinued. Also, of significance in assessing Respondent's motivations are the variety of rea- sons, some of which were demonstrated at the hearing to have been baseless, given for Hull's layoff. In the first instance Hull had been notified that he was being laid off because of his personal need to be absent from work for several evenings during the week that the layoff became effective. The evi- dence is that Hull had previously arranged with Don Webel to take only one night off in order to be with his mother who was going to the hospital for an operation. Second, at the May 20 bargaining meeting, Meredith advised the union represen- tatives that the night shift was discontinued because, among other reasons, it had to be shut down for repairs. Neither George Webel nor John Teuscher testified that such reason in any manner contributed to the decision to discontinue the night shift. Third, both George Webel and John Teuscher testified that they considered that the night shift was highly unproductive and that Hull bore some responsibility. How- ever, Teuscher also testified that Hull's work was satisfactory and the fault, if any, was in the manner Rush regulated a steam valve. Respondent did not explain why it could not find a position for Earl Hull on the day shift in 1974 as it had done in 1973. It is noted that, on the day before Earl Hull was laid off, Gene Webel was newly assigned to operate the pellet mill on the day shift, the very position Earl Hull held before his transfer to the night shift in March 1974. The circumstances, particu- larly, Respondent's strong opposition to the organization of his employees, Respondent's knowledge of Hull's union lead- ership, the inconsistent reasons advanced for selecting Hull for layoff, and the fact that Hull had not been laid off during the summer slumps in the years 1971, 1972, and 1973, lead me to conclude that but for his union activities Earl Hull would not have been laid off in May 1974.22 Accordingly, I fmd that Respondent discriminated against Earl Hull by lay- ing him off on May 18, 1974, in order to discourage member- 22 While it is undisputed that in the late spring and summer there is a seasonal decline in the Company's business and that in 1973 there were some layoffs, Respondent offered no correlation between the decline in its business in 1974 and the number of employees it reasonably should have laid off in order to adjust its labor requirements to its lower business volume. The fact that Hull was working on the night shift when it was discontinued in 1974 does not necessarily justify his termination because in similar circum- stances he was not terminated the previous year 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship in the Union and thereby violated Section 8(a((3) of the Act, and that by such conduct Respondent also interfered with, restrained, and coerced its employees in the exercise of their organizational rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 3. Sale of a truck The complaint alleges a violation of Section 8(a)(3) based on the following: "Since on or about June 3, 1974, the Re- spondent sold one of its trucks which resulted in the loss of unit work." This allegation is not sustained because at the time of the sale the Company owned and operated eight large trucks plus two small trucks and employed only five full-time truckdrivers. Thus, after the sale, the number of trucks the Company owned was four more than the number of full-time drivers it employed. The evidence, discussed above, shows that after June 1, 1974, the Company began using Art Crowder to make certain deliveries which amounted to ap- proximately 1-1/2 loads per day and if those deliveries had been made by Respondent's employees it would have in- volved approximately 4 to 6 hours additional work per day. However, the use of a carrier to perform some delivery work previously performed by company employees was not the result of the sale of the truck, as alleged in the complaint.23 Furthermore, even if Art Crowder would have been unable to make customer deliveries for Respondent ab- sent the purchase of the truck from Respondent on June 1, 1974, General Counsel has not proved that the sale of the truck to Art Crowder was done in order to encourage or discourage membership in any labor organization or that it resulted in discrimination against employees in regard to hire, tenure of employment, or any term or condition of employ- ment. Accordingly, I shall recommend the dismissal of this allegation of the complaint. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occuring in connection with his operations described in sec- tion I, above, have a close, intimate, and substantial relation- ship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that Respondent has engaged in unfair labor practices,, I shall recommend that he cease and desist there- from and that he take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully laid off its em- ployee, Earl Hull, on May 18, 1974, I shall recommend that Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned from the afore- said date of his layoff to the date of Respondent's offer of reinstatement, less his net earnings during such-period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method pre- scribed in F W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I have found that Respondent has failed to bargain collec- tively in good faith with the Union as the representative, duly certified by the Board, of an appropriate collective-bargaining unit of his employees. To insure that the employees in the appropriate collective-bargaining unit will have the oppor- tunity to enjoy the full benefits that may be derived from their selection of a bargaining agent as contemplated by the Act, I recommend that the initial year of certification be deemed to begin on the date that the Company commences to bargain in good faith with the Union as the recognized bargaining representative of the employees in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964). Respondent's unlawful layoff of Earl Hull and Respon- dent's other unfair labor practices go to the very heart of the Act and reflect a failure and refusal fully to accept the proce- dures of collective bargaining contemplated by the Act and a purpose to defeat self-organization of employees. The unfair labor practices committed by Respondent are potentially related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The pre- ventive purposes of the Act will be thwarted unless the recommended Order herein is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from any manner infringing upon the rights of employees guaran- teed in the Act is deemed necessary. N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941); N.L.R.B. v. Ent- wistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 23 There is testimony in the record to the effect that after June 1, 1974, when Art Crowder began to make customer deliveries for Respondent he used the truck that he had purchased from Respondent This fact, however, is insufficient to prove that but for the sale of the truck the Respondent would not have used a carrier to make these same deliveries. First, there is no evidence that Crowder did not own, or could not have acquired, a suitable vehicle to make the deliveries for Respondent even had he not purchased the truck from Respondent on June 1, and, second, it was not shown that there was no other carrier available to make such deliveries. 1. By changing the method of paying its truckdrivers and by changing other conditions of employment of its truckdriv- ers after April 30, 1974, when a majority of the employees in the appropriate unit described below at a Board-conducted election designated the Union as their collective bargaining representative, without affording the Union the opportunity to bargain about such matters, the Company has engaged in, GEORGE WEBEL & PIKE TRANSIT COMPANY and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 2. By discriminatorily laying off Earl Hull on May 18, 1974, thereby discouraging membership in the Union, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By reason of the foregoing conduct and by reason of Respondent's threats to discharge employees who engage in lawful strikes; Respondent's promises of benefits to an em- ployee to induce the employee not to participate in any possi- ble strike; Respondent's threats to close the plant should the Union win a pending Board-conducted election; Respon- dent's advice to an employee not to associate with other employees who favored the Union; and Respondent's coer- cive questioning of an employee about whether other em- ployees had attended union meetings, Respondent has inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in these proceedings and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER24 Respondent, George Webel, d/b/a Webel Feed Mills & Pike Transit Company, Pittsville, Illinois, his agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Making or effecting any change in the wages, hours, or other terms or conditions of employment of employees in the collective-bargaining unit described below without first giv- ing notice to their collective-bargaining representative and affording such representative an opporl unity to engage in collective bargaining with respect to any such proposed change. The appropriate collective-bargaining unit is: All full-time and regular part-time production and main- tenance employees and truckdrivers employed at the Employer's Rural Route 3, Pittsfield, Illinois, facility, excluding all office clerical employees, salesmen, profes- sional employees, guards and supervisors as defined in the Act. (b) Laying off or otherwise discriminating against em- ployees in regard to their hire, tenure of employment, or other term or condition of their employment in order to discourage membership and Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization. (c) Threatening to discharge employees who engage in law- ful strikes; 24 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 827 (d) Promising benefits to employees to induce employees to refrain from participating in any strike. (e) Threatening to close his plant in order to discourage, employees from supporting Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization in a pending Board-conducted election or otherwise. (f) Advising employees not to associate with other em- ployees who favor Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization. (g) Unlawfully interrogating employees as to whether other employees have attended union meetings or regarding em- ployees' union sympathies, activities, or membership. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and condi- tions of employment with Local 217, American Federation of Grain Millers, AFL-CIO, as the exclusive representative of all the employees in the collective-bargaining unit described above and, if an agreement is reached, execute a written contract incorporating the terms of the agreement. The cer- tification year shall extend 1 year from the date such new bargaining negotiations begin. (b) Offer to Earl Hull immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at his place of business in Pittsfield, Illinois, copies of the attached notice marked "Appendix. 1121 Copies of said notice, on forms provided by the Regional Director for Re- gion 14, after being duly signed by the Respondent, shall be posted by him immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint of violations of Section 8(a)(1), (3), and (5) be dismissed except insofar as specific findings of violations of those sec- tions have been made above. 25 In the event that the Board's Order in 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively concern- ing rates of pay, wages, hours of employment, and other terms of conditions of employment with Local 217, American Federation of Grain Millers, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described below and, if an agreement is reached, we will execute a written contract incorpora- ting the, terms of the agreement. The Union's certifica- tion year shall extend 1 year from the date such new bargaining negotiations begin. The appropriate unit is: All full-time and regular part-time production and maintenance employees and truckdrivers employed at the Employer's Rural Route 3, Pittsfield, Illinois, facility, excluding all office clerical employees, sales- men, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT make or effect any changes in the wages, hours, or other terms or conditions of employment of the employees in aforesaid collective-bargaining unit with- out first giving-notice to their collective-bargaining rep- resentative and affording such representative an oppor- tunity to engage in collective bargaining with respect to any such proposed change. WE WILL NOT layoff, or otherwise discriminate against any employees in regard to their hire, tenure of employ- ment, or any term or condition of their employment, in order to discourage membership in Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization. WE WILL NOT threaten to discharge employees who en- gage in lawful strikes. WE WILL NOT promise benefits to employees to induce them to refrain from participating in any strike. WE WILL NOT threaten to close our plant to discourage employees from supporting Local 217, American Feder- ation of Grain Millers, AFL-CIO, or any other labor organization, in a pending Board -conducted election or otherwise. WE WILL NOT advise employees to refrain from as- sociating with other employees who favor or support Local 217, American Federation of Grain Millers, AFL-CIO, or any other labor organization. ^^i WE WILL NOT coercively question employees CgAI~em- ing attendance of other employees at union meetings or regarding employees' union sympathies, activities, or membership. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of the right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer Earl Hull immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him. GEORGE WEBEL, d/b/a WEBEL FEED MILLS & PIKE TRANSIT COMPANY