Franks Flower Express

FRANKS FLOWER EXPRESS 149 Franks Flower Express and Transportation Employees Association, a/w District 2, MEBA, AMO, AFL- CIO. Case 15-CA-5377 July 16, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On January 27, 1975, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. Contrary to our dissenting colleague, we find no basis for reversing the Administrative Law Judge's denial of the Respondent's motion for a continuance, requested because of the illness of its principal attor- ney, George Duncan. The record shows that the firm of which Mr. Duncan is a member was aware, no later than October 18, that Mr. Duncan would be unable to participate at the trial, then scheduled for October 21. On that latter date, the Administrative Law Judge granted the Respondent's motion for a 2- day continuance, until October 23, to prepare its case. When the hearing resumed, on October 23, a junior member of Mr. Duncan's firm requested a fur- ther continuance, which was denied. The Respon- dent has excepted to this ruling, arguing that the Ad- ministrative Law Judge "effectively denied the right of Respondent to counsel of his own choice," and requesting that the matter be remanded in order that it be "given the opportunity to put on his case in chief." It is well settled that the granting or denial of a continuance is a matter committed to the discretion of the Administrative Law Judge and such decision will not be reversed in the absence of a showing of abuse. We find no such abuse in this case. Obviously, the Administrative Law Judge concluded, and we find, that the 5-day notice was sufficient time for the firm representing the Respondent to arrange for sub- stitute counsel, and the Respondent does not allege that the attorney who tried the case did not have sufficient time within which to familiarize himself with the pleadings, or to consult with either Mr. Duncan or the Respondent. Nor-with regard to the conduct of the trial-does the Respondent specifical- ly deny the Administrative Law Judge's finding that "each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, and to submit proposed findings of fact and conclusions." And there is no suggestion that the allegations raised were not firmly joined by the Respondent and its counsel. For, in- deed, this was neither a complicated nor lengthy pro- ceeding: During the trial, which lasted one-half day, the General Counsel presented five witnesses and the Respondent one. Moreover, before closing the hearing, the Admin- istrative Law Judge granted the Respondent addi- tional time, until November 4, within which to show "good cause" why it should be permitted to depose other witnesses, even though the Respondent and its principal counsel had ample time (42 days) before the trial to arrange for their appearance. Thereafter, on November 4, Respondent filed a motion for continuance in which it alleged that the testimony of its witnesses was essential and that a denial of its motion to depose such witnesses would deprive Respondent of administrative due process. Respondent further stated that the hearing was post- poned from October 21 until October 23 because of the illness of counsel. Respondent did not allege that the failure of Duncan to appear in any way preju- diced Respondent's ability to defend itself at the hearing. In our view, Respondent's failure to indicate in its motion in what way, if any, it was handicapped by the substitution of another member of the firm as counsel vitiates its due process argument. Indeed, the dissent cites only a few instances of limited import and ambiguous nature as evidence of Respondent counsel's alleged lack of opportunity to familiarize himself with the case. For example, Crawford 's state- ments concerning Respondent's refusal to admit the Union's status as a labor organization may not even have meant that he was unfamiliar with the case, but, rather, that, although he did not agree with Duncan, he felt bound to the latter's position on the issue. Other exchanges relied on by our dissenting col- league involve purely procedural matters of little or no consequence in relationship to Crawford's knowl- edge of substantive issues in the case, such as the number of exhibits that must be proffered. On November 12, the proceeding was closed upon the Respondent's failure to show its case had been prejudiced and to substantiate legitimate reasons for its witnesses' absence from the hearing.' 1 We and our dissenting colleague find no merit in the exception taken to this latter ruling. 219 NLRB No. 28 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The dissent argues that Respondent was entitled to the services of the attorney of its choice, citing Great Lakes Screw Corporation v. N. L. R. B.;2 Mississippi Val- ley Structural Steel Company v. N. L. R.B.;3 and Smith- Weik Machinery Corp. v. Murdock Machine and Engi- neering Co.4 We find those cases inapposite. In Mis- sissippi Valley the unfair labor practice charges were based on preelection misconduct, and counsel who had handled the representation case and was the only attorney conversant with the alleged miscon- duct was ill and unable to appear at the unfair labor practice hearing. The instant case, however, does not involve any such prior proceeding and Respondent did not even allege in its November 4 motion for continuance that Duncan was the only attorney fa- miliar with the fact and issues of the case. In Great Lakes Screw Corporation the Trial Exam- iner, midway through a 23-day hearing, excluded a party's attorney for contemptuous conduct. The court of appeals denied enforcement of the Board's subsequent order, finding that the Board did not ade- quately specify its grounds for finding counsel's con- duct contemptuous and that in fact the misconduct did not constitute contempt. In Smith-Weik, principal counsel for the defendant became ill shortly before the trial began and the dis- trict court judge refused to grant a continuance. The court of appeals concluded that the refusal to grant the continuance was error, finding that the case was complicated, principal counsel was ill, local counsel was relatively unprepared, and the time for continu- ance was short. In discussing the facts of the case, the court further noted that numerous depositions had been taken in the case and that local counsel did not have copies of all of them. The instant case, however, is not particularly complex and Respondent has failed to show that Duncan possessed any relevant information not available to Crawford. We agree that a respondent in an unfair labor practice proceeding is entitled to its choice of repre- sentative. In this case, however, Respondent did not allege at the hearing or in its motion for continuance that it was denied this right. Moreover, Respondent was granted the original continuance it requested, and was represented at the hearing by a member of Duncan's firm, who may be presumed to have knowledge of the issues as framed by the pleadings,' and who was afforded, and took advantage of, the opportunity to cross-examine the General Counsel's witnesses and to present a defense. 2 409 F.2d 375 (C.A. 7, 1969). ' 145 F.2d 664 (C.A. 8, 1944). ° 423 F.2d 842 (C.A. 5, 1970). S In this connection, we note that Respondent was put on notice of the need to prepare for the hearing by the Regional Director 's denial of the October 18 request for a postponement To be sure, the Respondent would prefer to have the "opportunity" to retry its "case in chief" and, perhaps, present additional testimony, but the ad- ministration of justice requires an end to litigation at some point. And, finding no abuse of discretion by the Administrative Law Judge in the circumstances of this case, we are satisfied that the Respondent has had its day in court. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Franks Flower Express, Rose City, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(c) of the recommended Order: "(c) Post at its Rose City, East Orange County, Texas, establishment copies of the attached notice marked "Appendix." lo Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER KENNEDY, dissenting: The Administrative Procedure Act, 5 U.S.C., §555(b), provides: A person compelled to appear in person be- fore an agency or representative thereof is enti- tled to be accompanied, represented, and ad- vised by counsel ... . A party's right to counsel means the right to the at- torney of his own choice-an attorney who is famil- iar with both the facts and the law of the case. Since the Administrative Law Judge's denial of Respondent's motion for continuance deprived Re- spondent of the services of its attorney of choice, I find the ruling constitutes an abuse of discretion and denial of due process. Accordingly, I would remand this case for a new hearing before a different Admin- istrative Law Judge. FRANKS FLOWER EXPRESS On October 18, 1974, Respondent sent a telegram to the Regional Director requesting a continuance of the hearing herein then scheduled for October 21. Respondent asserted that its counsel, George Dun- can, had developed a staphylococcus infection in his right inner ear, was under a doctor's care and would be unable to prepare for and attend the hearing. The doctor at that time was administering medication to Duncan and had ordered bedrest through October 22. Since Duncan was the only attorney in his firm conversant with the facts and legal issues to be devel- oped at the hearing, Respondent urged that the case be continued until Duncan had recuperated. The Re- gional Director denied the motion. Upon Respondent's oral motion at the outset of the hearing on October 21, the Administrative Law Judge granted a 2-day continuance until October 23. However, when the hearing resumed on October 23, a junior member of Duncan's firm, Walter Crawford, appeared "for" Mr. Duncan, "subject to a motion for continuance . . . ." Crawford presented a letter from Duncan's physician indicating that Duncan's ear infection persisted. The physician's prognosis was that Duncan would be unable to work for an addi- tional 4 days. The Administrative Law Judge denied Crawford's motion for an additional continuance as- serting, "I will not grant you a continuance based upon the fact that your law firm feels they ought to have a different lawyer here than yourself." Section 555(b) of the Administrative Procedure Act, quoted above, means that a party to an adminis- trative proceeding is entitled to representation by counsel of his own choice. In Great Lakes Screw Cor- poration v. N.L.R.B.,6 the Seventh Circuit found that the Board had denied administrative due process to a party whose attorney had been excluded from the hearing by the Trial Examiner. In discussing section 555(b), the court stated: This right to counsel has been interpreted to mean the right to counsel of one's own choice. Backer v. C.I.R., 5 Cir., 275 F.2d 141, 144 (1961).' Certainly the statutorily provided right to be represented by counsel of one's own choice is fundamental and has been violated by the un- warranted exclusion of counsel. It is impossible to soothsay what ill-effects that unwarranted ex- clusion may have had on the petitioner's case. Denying petitioner his chosen counsel may have 6409 F .2d 375 ( 1969). 7 Id at 380. 151 had a prejudicially adverse effect on witnesses and inhibited succeeding counsel from fully ad- vancing petitioner's position. It is axiomatic that if the order of the Board is found to be premised upon an unfair hearing then such order must be set aside and the case remanded to the Board for a new hearing.8 In a case factually similar to this one, Mississippi Valley Structural Steel Company v. N. L. R. B., 9 the Eighth Circuit found the Board's denial of a motion for a month's continuance to be erroneous. There, petitioner's attorney became ill and could not repre- sent his client at the hearing. As in the instant case, he was the only attorney in his firm who was familiar with the facts. Petitioner requested a month's contin- uance in order for its attorney to regain his health and return to work. When the request was denied, petitioner withdrew from the hearing, since there was no one in its law firm who could become fully ac- quainted with the case in the time allocated. After the scheduled hearing was held, at which only the Board presented its evidence, the Trial Examiner is- sued his decision. The court ruled that the Trial Ex- aminer abused his discretion by denying the motion for continuance since there was no evidence that the short postponement would have prejudiced the Board or the union opposing petitioner. In the in- stant case, the requested continuance, which would have postponed the hearing approximately 4 days, was an even more reasonable request than the month's continuance which the Eighth Circuit in Mississippi Valley, supra, found to have been warrant- ed.10 Contrary to my colleagues' assertion that Respondent's failure to allege prejudice in its motion for continuance "vitiates its due process argument," I conclude that substitute counsel was not sufficient to provide Respondent with due process. Without cast- ing any aspersions on the ability of substitute counsel Crawford, it is evident from the record that he had not been given sufficient advance notice to complete- ly familiarize himself with the case. For example, when the Administrative Law Judge asked him whether Respondent was standing on the denial, in its answer, of the Charging Party's status as a labor organization, Crawford responded, "Your Honor, if Mr. Duncan denied it, I guess we will have to stand ' Id. at 381 9 145 F 2d 664 (1944) - 10 The majority's statement that "Respondent did not allege that the fail- ure of Duncan to appear in any way prejudiced Respondent 's ability to defend itself at the hearing" constitutes a semantical smokescreen . Respon- dent has alleged throughout this proceeding that failure to grant its motion for a continuance (based upon Duncan's inability to appear) would consti- tute a denial of administrative due process. In my judgment, there is no meaningful difference between what my colleagues find Respondent should have alleged, and what Respondent has, in fact, alleged 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on it." Likewise, when the Administrative Law Judge asked him if he objected to admission into evidence of a prior representation case decision in which it was found that the Charging Party was a labor orga- nization, Crawford answered, "We will stand on Mr. Duncan's denial, whatever that means." 11 After counsel for the General Counsel offered several ex- hibits into evidence subject to the approval of Respondent's counsel, Crawford responded, "Your Honor, I'm not familiar with all the documents." When counsel for the General Counsel argued that the Administrative Law Judge should deny Respondent's motion for a continuance on the basis that Durel Franks and his drivers had sufficient no- tice and full knowledge of the instant proceeding, Crawford responded, "I don't know about that, Your Honor, I don't know what he knew. All I know is that he is broken down in Yuma and that informa- tion was made available to me yesterday, I believe, through Mr. Duncan. That's the extent of what I know about it." When counsel for the General Coun- sel offered into evidence a letter by Mr. Duncan to Miss Charlotte White, cocounsel for the General Counsel, in which Duncan stated that notification of the Union's majority status was made by telegram to Respondent, Crawford said, "I would object to that, Your Honor, because I don't know what the facts are on that." In addition to factual matters, Crawford was not as familiar with the law or with Board procedure as was Duncan. After the General Counsel presented his case in chief, Crawford informed the Administra- tive Law Judge, "There's nobody in our law firm who does labor work up until today other than Mr. Dun- can." Crawford's unfamiliarity with Board procedure is evidenced by two exchanges with the Administra- tive Law Judge. In the first instance, Crawford want- ed to examine a witness on voir dire concerning the alleged discriminatee's motel bill, and admitted, "Your Honor, I'm not thoroughly familiar with the procedure and perhaps I should wait for cross-exami- nation . . . ." In the second exchange, after Craw- ford offered a cargo manifest into evidence, the Ad- ministrative Law Judge asked him, "Mr. Crawford, are you familiar with the rule that requires duplicate copies to be submitted?" Crawford answered, "No, sir, I am not." In my judgment, it is a denial of due process for this Board to require a party to be represented at a hearing by an attorney who is not fully conversant with the facts, the law, and the procedure of the Case. In Smith-Weik Machinery Corporation v. Mur- dock Machine and Engineering Co.,12 the Fifth Cir- cuit, through Judge Wisdom, agreed with this posi- tion by holding that the denial of a continuance to permit an ill attorney to return to work was not cured by the use of substitute counsel at the trial. In that case, a breach-of-contract action, the counsel for plaintiff became ill and requested an indefinite con- tinuance. The continuance was granted. When the trial was set to resume, 2 months later, local counsel for defendant advised the court that its principal counsel was now ill with the flu and requested an additional continuance. Substitute counsel asserted that he was not adequately prepared to try the case. The court advised counsel that a continuance would not be granted under the circumstances. The Fifth Circuit, in reversing the lower court, held: In Anglo-American law, with trials based on the adversary system as the best means of arriv- ing at a just and legal result, the interests of jus- tice in this case required that both parties be represented by able counsel well informed on the facts and the pertinent law. The illness of the defendant's principal attorney and local counsel's relative unfamiliarity with the case tip- ped the scales so heavily in favor of the plaintiff as to effectually deprive the defendant of its rightful day in court." I find that here, as in Smith-Weik, supra, Respondent was deprived of its rightful day in court. 14 In my judgment, Respondent's right to due process requires a new hearing of this matter in order to pro- vide attorney Duncan the opportunity to cross-exam- ine witnesses and present Respondent's case. Ac- cordingly, I would remand this case for a new hearing before a different Administrative Law Judge. 11 My colleagues infer from these exchanges that, rather than being unfa- miliar with the case, Crawford merely felt bound by Duncan's position on the issue although he disagreed with it. This inference is, of course, pure speculation. Nowhere in the record does it appear that Crawford's position differed from Duncan's. 12 423 F.2d 842 (1970). 131d at 844. 141 specifically reject my colleagues' attempt to distinguish this case from Smith-Weik, supra, on the basis that the issues here are "not particularly complex." I do not think that a litigant's right to counsel should hinge upon a determination by this Board as to the relative complexity of the issues presented. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that the National Labor Relations Board has found that we violated the law and has ordered us to post this notice: FRANKS FLOWER EXPRESS WE WILL offer Jeryl W. Davis his job or, if his job no longer exists, a substantially equivalent job. WE WILL restore his seniority and pay him the backpay he lost because we discharged him. WE WILL NOT unlawfully discharge any of our employees for the same reason we discharged employee Jeryl W. Davis. WE WILL NOT unlawfully ask our employees whether they have signed union authorization cards. WE WILL NOT unlawfully ask our employees who is involved in the Union or who is the lead- er or instigator of the Union. WE WILL NOT unlawfully request employees to sign any document which suggests that we want them to repudiate the Union. WE WILL NOT unlawfully threaten to close down our business if the Union comes into our establishment. WE WILL NOT unlawfully promise our employ- ees that if they will stick with us and not with the Union they will have a job as long as we are in business. The Act gives all our employees these rights: To organize themselves To form, join, or help unions To bargain as a group through representa- tives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything which interferes with these rights. All our employees are free to remain, or refrain from becoming or remaining, members of a labor or- ganization. FRANKS FLOWER EXPRESS DECISION STATEMENT OF THE CASE LOWELL GOERLICH , Administrative Law Judge: The charge filed by Transportation Employees Association, a/w District 2, MEBA, AMO, AFL-CIO, herein called the Union, on August 1, 1974, against the Respondent, Franks Flower Express, was served on the Respondent on or about the same date . A complaint and notice of hearing was is- sued on September 11, 1974. The complaint charged that the Respondent had committed certain violations of Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act, and had discharged its employee Jeryl W. Davis on July 31, 1974, in violation of Section 8(a)(3) of the Act. The Respondent filed a timely answer alleging that it 153 had discharged Davis for "good cause, due to his having violated Respondent's rules and in obtaining money under false pretenses." The case came on for trial on October 21, 1974, and was continued at the request of the Respondent until October 23, 1974, at which time each party was afforded a full op- portunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, and to submit pro- posed findings of fact and conclusions. Evidence was intro- duced after which the Respondent's counsel moved for an- other continuance on the ground that "the drivers involved are outside the state and that we were not able to get them in here and they are crucial witnesses and I am advised Mr. Franks is broken down in Yuma, Arizona and is unable to get back here, and we feel that their testimony is essential." Ruling on this motion was held in abeyance and the Re- spondent was granted until November 4, 1974, to submit reasons and affidavits, if necessary, as to why its continu- ance should be granted and it be allowed to offer addition- al evidence. Thereafter the Respondent, within the time allowed, renewed its motion in written form, appending thereto Application for Deposition. Thereafter a Ruling and Order on Motion for Continuance was entered on No- vember 12, 1974, a part of which read: "Although the Re- spondent was granted time in which to support its request, for an additional continuance, it has failed to show good cause why its request should be granted. The General Counsel's points are well taken. "IT IS ORDERED that the Respondent's Motion for Continuance to take deposition and for a continuance be denied and that the trial in this case be closed and submit- ted for decision. Briefs may be filed by the parties on or before December 16, 1974, which period will afford the Respondent ample time to lodge a direct appeal to the Board in event it excepts to this ruling." The Respondent and the General Counsel elected to file briefs within rule. All briefs have been carefully consid- ered. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent, a sole proprietorship, with its principal of- fice and place of business located at Rose City, East Or- ange County, Texas is engaged in the commercial transpor- tation of flowers and produce. It has a loading dock at San Carlos, California. During the preceding 12-month period, a representative period of all times material herein, Respondent derived i The facts found herein are based on the record as a whole and the observation of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.L R.B. v. Walton Manufacturing Company & Loganville Pants Co, 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic- tion to the findings herein , their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. No testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revenues in excess of $50,000 for the shipment of goods from its Louisiana and Texas terminals directly to points outside the States of Louisiana and Texas. Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union Organizational Campaign and the Alleged Violations of Section 8(a)(1) of the Act 1. At all times material herein Durel Franks was the owner and Ford E. Phillips was the dispatcher of the Re- spondent. Employee Jeryl W. Davis had intermittently worked as a truckdriver for the Respondent commencing in 1970; his last tour was from October 1973 until July 31, 1974, at which time he was fired. Davis signed a union support card on July 17, 1974. He also solicited employees for union support and obtained 11 signed union authoriza- tions. In addition Davis arranged for several employee meetings with Stanley LaFleur, a union representative. These meetings were held at the Four Seasons Truck Stop on Route 167 north of Lafayette, Louisiana. While on the road Davis obtained six employees' signatures to union support cards in Odessa, Texas, and Laredo, New Mexico (sic). He also distributed blank cards to other employees and "Right to Vote" pamphlets. Thereafter a telegraphic demand for recognition dated July 29, 1974, was dispatched to the Company by the Union and was received by the Respondent (according to dispatcher Phillips) prior to the discharge of Davis on July 31, 1974. A petition for an election was filed on July 29, 1974, in Case 15-RC-9458 and mailed to the Respondent on the same date. On July 30, 1974, while employees Percy J. Hebert and Rodney Pisiani were in Franks' office in Beaumont, Texas, Franks asked Pisiani, "What about this union, Rodney? Did you sign a card?" Both employees admitted signing cards and Pisiani said, "Durell, it's because I don't have no hospitalization, that-I signed this card." Franks responded, "Who's involved in this union? Who's the leader?" Pisiani answered that he did not know. Franks then asked the employees to read a document and commented that they should sign it if they wanted to. According to Hebert the document disclosed that "if the union should come into the company that [Franks] would sell his trucks and close his business down." There were 9 or 10 signatures on the docu- ment. After the employees signed the paper Franks said, "Now, I didn't make you all sign this paper." 3 2 An election was held on October 16, 1974. Challenges were determina- tive of the results of the election. 3 On cross-examination Hebert was shown the following written lan- guage, Resp. Exh. 2: After the document was signed Franks again asked the employees who the instigator of the Union was. Pisiani answered that he did not know. Franks replied, "I know it's Red.4 Red is the instigator. That's all right. I will fire him for a motel slip I have in my hand." Franks also com- mented, "I don't want the union. I got a million dollars in assets and I can close down the business and live all right the rest of my life." He added that he had "ordered some new trucks which he was going to cancel." As the persons parted Franks asked the employees whether they were going to "stick with him or the union." He said that if they "stuck" with him they would have a job "as long as he was in business." When Franks asked He- bert what he was going to do Hebert told him "not to worry about it." On July 31, 1974, Franks "flagged down" employees Roger Boudreaux and Chester Marcatel near Spindletop Truck Stop in Vidor, Texas. Franks talked to Marcatel first. Franks handed Marcatel a "paper" and asked him to sign it if he desired. Marcatel signed the paper which he said "seems like" Respondent's Exhibit 2 set out above. Franks thanked him for signing it and asked if Boudreaux would consider signing the paper. Marcatel answered that he did not know. He also asked Marcatel whether he had signed a union card. Marcatel answered affirmatively. Marcatel asked Franks if it were not too late to stop the Union because it was in Federal hands. Franks replied in the negative and said that "he had enough money, if he would go union, that he will shut down the company and that he had enough money to live the rest of his life with- out the Franks Flower Express." Franks asked Marcatel to "motion" Boudreaux to come over. Boudreaux responded and Franks handed him the same paper. Franks also showed Marcatel a paper with 12 or 15 truckers' signatures on it. Boudreaux signed the paper. He heard Franks say that he "would probably have to lose his flower business if he went union." Later both Marcatel and Boudreaux were asked by Phil- lips to sign similar documents which they did. 2. By the interrogations detailed above the Respondent TO ALL EMPLOYEES OF FRANKS PLOWER EXPRESS: I will ask you one question-If you had a business that you had worked hard to build up, would you want a union or anyone else to tell you how to run your business' I'm asking those who did sign and the ones who did not to vote in favor of not going union. I will not have anyone telling me how to run my business. And I don't think that any of you know a trucking company hauling farm products, as we are, being put in a union. We appreciate your consideration. PLEASE DATE: [Followed by lines for signatures.] Hebert testified that he was handed a similar document sometime after August I. 1974, in the Lafayette office by Phillips, who pulled it out of a desk drawer and said, "I want you to read this. If you want to sign it, go ahead and sign it" Hebert responded , "Gene, I done signed one before." (Phillips did not contradict this testimony .) After having been shown the document, in reference to what the first document contained , Hebert testi- fied, "I'm not sure it was in the document, no. He [Franks] could have said that at the time but I'm not sure." Nor was he sure the documents were not the same. Davis' nickname was "Red " FRANKS FLOWER EXPRESS violated Section 8(a)(1) of the Act. N.L.R.B. v. Super Toys, Inc., 458 F.2d 180 (C.A. 9, 1972); Hendel Manufacturing Company, Incorporated, 197 NLRB 1093 (1972); Answering, Inc., 215 NLRB No. 118 (1974). The Respondent likewise violated Section 8(a)(1) of the Act by Franks' threat to close down his business if the Union came into his estab- lishment; 5 and by Franks' promise that if employees "stuck" with him rather than the Union they would have a job as long as he was in business. In respect to Franks' alleged unlawfulness in circulating the petition (Resp. Exh. 5) to which he requested employ- ees "of their own free will" to affix their signatures, the Respondent relies on Section 8(c) of the Act as a defense. The Respondent maintains that the petition "is no more than the right of an employer to speak to his employees about the advantages of union organization, and that such statement is not coercive." However, it is obvious that the request to sign the petition was an unlawful query as to the employees' union affection and the employees' signing, in effect, registered the employee's repudiation of the Union and the acknowledgement that Franks was not going to have a Union or anyone tell him how he was going to run his business. An employee who would have viewed the pe- tition in any other light would have been a dull employee indeed. Moreover, if Franks had not intended that an employee's signature would register his repudiation of the Union and an acquiescence in Franks' request that those "who did sign" vote "in favor of not going union," the petition would have served little purpose. Indeed, the words set out above used by Franks while soliciting leave little doubt as to the coercive character of his solicitations. Franks' use of the petition in the manner he did constituted a violation of Section 8(a)(1) of the Act. See Priced-Less Discount Foods, Inc., d/b/a Payless, 157 NLRB 1143 (1966); enfd. 405 F.2d 67 (C.A. 6, 1968). B. The Discharge of Jeryl W. Davis On July 31 , 1974, Jeryl W. (Red) Davis was at Spindle- top Truck Stop in Vidor, Texas , "right out of Beaumont." He phoned the Lafayette terminal and was told by a fe- male employee that he was "to be paid off," and that Franks wanted to talk with him. Davis contacted Franks by phone and later Franks appeared at Spindletop. Three other drivers were with Davis . After Franks had talked to the three drivers he showed a motel ticket dated July 15, 1974, in the amount of $ 12.60 to Davis and asked him whether he had ever seen it. Davis answered, "Yes, I have." Franks said, "Well, it just cost you your job." He further remarked that "he don't pay for a motel until the truck was unloaded." Davis replied that a driver had been with the truck at the time it was being unloaded. Franks countered that "he still didn't pay for motel rooms." Davis was "paid off right there." The Respondent claimed that a written rule was in effect as follows: s See Marshfield Steel Company v. N.L.R.B., 324 F.2d 333, 336 (C.A. 8, 1963); Masdon Industries, Inc., 212 NLRB 505 (1974). NOTICE ALL DRIVERS 155 AGAIN, WE WILL TELL YOU THAT THERE WILL BE NO ROOM RENT PAID UNTIL AFTER THE TRUCK IS UNLOADED AND YOUR WAY- BILL IS DATED TO THAT EFFECT. NO ONE WILL MAKE SPECIAL ARRANGEMENTS TO BE UNLOADED OTHER THAN MYSELF, DU- REL FRANKS, OR GENE PHILLIPS. TRUCKS MUST BE MANNED UNTIL UNLOADED. DUREL FRANKS While Davis indicated that he had never seen the rule in writing he said that he had learned from other drivers that "no motel rooms would be paid for by the company until the truck was unloaded." On July 14, when Davis incurred the motel bill, his truck had not been unloaded. The truck was unloaded on July 15, 1974. Davis had paid the motel bill. On returning from the run (two drivers were with the truck; Davis was the lead driv- er), which had been to National City, California, Davis on July 17, 1974, presented the motel bill with some others for reimbursement to employee Yarborough who approved the bill. Davis told her at the time that "one driver went and unloaded the truck and the other one stayed in the motel." Davis heard nothing further of the incident until July 31, 1974. Davis testified that a similar incident occurred on July 21, 1974, on which occasion he was also reimbursed. The General Counsel contends that Davis was not termi- nated because of the motel bill incident but because of his union activity. The Respondent maintains that the dis- charge was for the reason expressed to Davis by Franks and suggests that Davis "obtained such refund under false pretenses." As to the charge of false pretenses, which ap- parently was not relied upon by Franks, the credible record reveals that Davis informed Yarborough before she ap- proved the bill that "one driver went and unloaded the truck and the other one stayed with the truck." With this disclosure there appears to have been no intent on Davis' part to conceal the transaction. Indeed, if there was an error connected with the reimbursement, Yarborough was equally at fault, although the record does not disclose that she was likewise treated. Moreover, it seems reasonable that if the rule were being enforced Yarborough would have disallowed the reimbursement. Various factors support a conclusion that Franks used the motel bill incident as a pretext to rid his business of a union partisan. Franks, in effecting the discharge, did not accept any explanation of the incident from Davis nor did he afford him an opportunity to return the $12.50. In this respect it seems an unnatural occurrence that Franks should have fired a good truckdriver, who had on several occasions been rehired, rather than have permitted him to return the $12.50, especially in view of the hearsay character of the rule. Moreover, Franks took no action against Davis until it became known-that Davis was a union partisan and the Union was seeking bargaining rights. The record in this respect is barren of any explanation for the delay from July 17 until July 31, 1974. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the union animus of Franks 6 and his threat the day before that he would fire "Red," the "instigator," 7 for a motel slip, the Respondent's claim that Davis was fired for the violation of the rule falls flat and the real motive stands out like a sore thumb , i.e., to discourage membership in a labor organization and to interfere with the right of employees "to self organization and to form, join, or assist labor organizations." "Illegal motive has been held supported by a combina- tion of factors, such as 'coincidence in union activity and discharge . . . general bias or hostility toward the union' ... variance from the employer 's 'normal employment routine' . . . and an implausible explanation by the em- ployer for its action . . . ." McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). Thus it is clear that the credible facts in this case satisfy the criteria for illegal motive. Accordingly, it is found that by the discharge of Jeryl W. Davis on July 31, 1974, the Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act for jurisdiction to be exer- cised herein. 3. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. By unlawfully discharging Jeryl W. Davis on July 31, 1974, the Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Je- ryl W. Davis and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy 8 that the Respondent offer Jeryl W. Da- vis immediate and full reinstatement to his former position or, if such position no longer exists , to a substantially 6 "[E]very equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men." N.L.R.B v Houston and North Texas Motor Freight Lines, Inc, 193 F 2d 393, 398. (C A 5, 1951) cert. denied 343 U.S. 934 (1952). 7 "[W]here the discharge in question involved the "key" employee in an organizational drive, it may supply shape and substance to otherwise equi- vocal circumstances." N.L.R.B. v. Davidson Rubber Company, 305 F.2d 166, 169 (C.A 1, 1962). 8 See The Rushton Company, 158 NLRB 1730, 1731 (1966). equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this pro- ceeding, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the following: ORDERS Respondent Franks Flower Express, its agents, succes- sors, and assigns, and its owner Durel Franks, shall: 1. Cease and desist from: (a) Discouraging membership in Transportation Em- ployees Association a/w District 2, MEBA, AMO, AFL-CIO, or any other labor organization, by unlawfully discriminatorily discharging any of its employees or dis- criminating in any other manner with respect to their hire or tenure of employment or any term or condition of em- ployment in violation of Section 8(a)(3) of the Act. (b) Unlawfully interrogating its employees regarding their union or concerted activities. (c) Unlawfully requesting its employees to sign any doc- ument which suggests that it wants employees to repudiate the Union. (d) Unlawfully threatening to close its business if the Union comes into its establishment. (e) Unlawfully promising employees that if they stick with it and not with the Union they will have a job as long as it is in business. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Jeryl W. Davis immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, discharging if necessary any employees hired to replace him, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth in the sec- tion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. 9In 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. FRANKS FLOWER EXPRESS 157 (c) Post at its Rose City, East Orange County, Texas, for Region 15, after being duly signed by Respondent's establishment and its Lafayette, Louisiana terminal, copies representative, shall be posted by it immediately upon re- of the attached notice marked "Appendix." 10 Copies of ceipt thereof, and be maintained by it for 60 consecutive said notice, on forms provided by the Regional Director days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that 10 In the event that this Order is enforced by a Judgment of a United said notices are not altered, defaced, or covered by any States Court of Appeals, the words in the notice reading "Posted by Order other material. of the National Labor Relations Board" shall read "Posted Pursuant to a (d) Notify the Regional Director for Region 15, in writ- Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.