O. R. Cooper and Son

O. R. COOPER AND SON 287 O. R. Cooper and Son and Chauffeurs , Teamsters and Helpers Local 26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 38-CA-2098 September 15, 1975 DECISION AND ORDER CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On March 14, 1975, Administrative Law Judge Thomas A. Ricci 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 conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.' 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 and hereby orders that Respondent O. R. Cooper & Son, Urbana, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs, accordingly: "(c) Make J. D. Haynes and Steven Clem whole for any loss of pay or any benefit they may have suffered by reason of the Respondent's discrimina- tion against them from the date of their discharge until July 30, 1974." 1 While we agree with the Administrative Law Judge that employees Ste- ven Clem and J. D. Haynes have forfeited any rights to reinstatement, we disagree with his further recommendation that they should not receive any backpay. Where both the Employer and employees have engaged in miscon- duct, the Board will "balance the severity of the employer 's unfair labor practice[s] ... against whatever employee misconduct may have occurred . "Fairview Nursing Home, 202 NLRB 318, 325 (1973); N L R B v. Thay- er Company, 213 F.2d 748, 755 (C.A. 1, 1954). The misdeeds of the employ- ees cannot be ignored , but the Respondent should not be allowed to violate the law with impunity . After careful consideration of the conflicting inter- ests in this case , we will not order the Respondent to reinstate Clem and Haynes since they have intentionally destroyed Respondent 's property, but we will order Respondent to pay Clem and Haynes backpay from the time Respondent unlawfully discharged them to the time of their own unlawful conduct. Fairview Nursing Home, supra. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial that we violated the Federal law by dis- charging employees because they engaged in union activity and by commiting other acts of illegal coer- cion: WE WILL NOT coercively question our employ- ees concerning their union activities. WE WILL NOT threaten to discharge employees because of their union activities. WE WILL NOT threaten to close down our busi- ness in order to prevent union activities among our employees. WE WILL NOT tell our employees that we will survey their union activities to ascertain the identity of prounion employees. WE WILL NOT discharge or discriminate against any employee for engaging in concerted or union activities. WE WILL offer Tommy Hall, Daniel Berry, and Donald Schaffer, immediate and full rein- statement to their former positions or, if such positions no longer exist, to substantially equiva- lent positions. WE WILL pay each of these three employees, plus Hugh Walker, for any earnings they lost as a result of our discrimination against them, plus 6-percent interest. WE WILL pay J. D. Haynes and Steven Clem for any earnings they lost as a result of our dis- crimination against them, plus 6-percent interest from the date of their discharge until July 30, 1974. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization to join or assist Chauffeurs, Teamsters and Helpers Local 26, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activity. O. R. COOPER AND SON 220 NLRB No. 43 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on January 13, 14, and 15, 1975, at Champaign, Illinois, on complaint of the General Counsel against O. R. Cooper & Son, herein called the Respondent or the Company. The charge was filed by Chauffeurs, Teamsters and Helpers Local 26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, on Au- gust 30, 1974, and the complaint issued on October 9, 1974. The primary issues of the case are whether the Respondent discharged six employees in July of 1974 because of their union activities and thereby violated Section 8(a)(3) of the Act. Briefs were filed by the General Counsel and the Re- spondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an individual proprietorship engaged in the business of interstate and intrastate hauling of freight by truck, with its principal office and place of busi- ness in Urbana, Illinois. During the past 12 months, a rep- resentative period, its gross volume of business was in ex- cess of $500,000, of which more than $50,000 was received from furnishing interstate transportation services. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Chauffeurs, Teamsters and Helpers Local 26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. A Picture of the Case In its trucking operations the Respondent uses between 20 and 25 drivers and helpers. There was a move among these employees towards joining Teamster Local 26 during the week immediately preceding July 20, 1974, and in the following week. Two union meetings were held, one on July 20, attended by five employees, and the other on July 27, attended by the same five plus a sixth employee. On the very day of the second meeting, or very quickly thereafter, the Respondent discharged all six of the employees who had been at the union meetings. At least as far back as January 1, 1974, the Company had discharged no one and it still had not dismissed anyone else up to the time of the hearing in January 1975. The complaint alleges that all six of these employees were discharged in retaliation for their union activities. According to the complaint, the conclu- sionary inference of illegal motivation rests not only upon the very suggestive timing of the discharges, but also upon direct, explicit, and consistent testimony of several employ- ees, all uncontradicted on this record, that Perry Hatter, the Company's terminal manager and second in command of the business, made it clear to all that the Respondent was going to find out who the union protagonists were and get rid of them. The Respondent denies any unlawful intent and, in affir- mative defense, asserts that each of the six men was re- leased at that particular time for just cause. B. Violations of Section 8(a)(1) Both union meetings were held at a public park called the Lake in the Woods, 10 miles away from the company terminal ; five employees present at the first meeting signed union cards there and took some blank cards to solicit other signatures. Starting that very day they did talk to other employees about the Union, obtaining some further signatures and failing to get others. With all the talk, both Hatter and Rodger Cooper, the owner of the business, learned about the union movement. There may be a little ambiguity as to exactly how the precise information reached them, who brought it, or just how many individual participants were identified in the mind of management, but there is no doubt either that the company officers were searching for information or that they did obtain it. Donald Schaffer, Steven Clem, Tommy Hall, J. D. Haynes, and Hugh Walker were at the July 20 meeting; Daniel Berry was the only other man who accompanied these same five to the July 27 meeting . Schaffer testified that on the 25th or 26th, in the terminal drivers' room, Manager Hatter asked him what did he know about the Union, and that "there was going to be a lot of asses fired if the Union got in," that the Company would "get smaller trucks with . . . no power steering, no air conditioning, no radios, no sleepers." Hatter then asked Schaffer did he have "one of those pieces of paper I'd been handing out .... A piece of paper I'd been handing out the Union gave me," and the employee said he did not. Schaffer and other employees had, after the first meeting with the Team- ster business representative, been distributing a "do and don't" statement prepared by the Union for employee use and distribution. Walker testified that several days after the first meeting, when employees Blue and Raymond Haynes were sitting in a restaurant with him, Hatter happened to enter and asked what they were talking about. They said "about the Union," and Hatter then stated "that him and Rodger would fire everybody connected with the Union, and that they would hire brokers instead." (The word broker in this business means independent contractors , or independent owner-operators, as distinguished from employees.) Walker also testified that on Tuesday after the first meeting, he was at Hatter's home and the manager started talking against the Union, "adding that Rodger and them would fire the whole kit and caboodle and what have you." Walker responded "The Union is not really that bad," and Hatter continued, still according to Walker, "that if the O. R. COOPER AND SON 289 Union was brought in they'd shut the whole place down, because Rodger couldn't afford it, they would shut it down." Later that same week Walker had occasion to tele- phone Hatter to inquire about the next day's work, and in the course of the conversation the manager said: "'Don't lie to me. . . . Did anybody approach you about the Union,' I said, 'No,' he said, `Well, is Steve Clem and J. D. Haynes the head of it,' and I said I didn't know." Clem's testimony is that on July 21 , the day after the first meeting, Hatter approached him: "He asked me what this was-he was hearing about me organizing the Union in Cooper, and I told him I didn't know anything about the Union and I didn't wish to discuss it with him, and he proceeded to tell me that if the Union got in it would cause Cooper to go broke, and I repeated that I didn't know anything about it and I didn't want to talk about it, and he told me then that they were going to find out who was instigating the Union and they would be fired and gotten rid of." Later in the week Clem found someone else doing his already assigned work and asked Hatter why his load had been given to another employee . Hatter answered: ,.with me instigating the Union he didn't think I'd show up to make the run. . . ." On Friday, still the same week, Hatter again talked to Clem about the Union. "Perry told me that he'd heard that everybody was getting the Union in because of him, the things he'd done, and I told him that it wasn't all his doing, it was a combination of several dif- ferent things , and he told me that if we got the Union in that Mr. Cooper had made arrangements to sell all his equipment, and said there'd be a whole bunch of us look- ing for jobs if we continued to try to get the Union in, and where would myself and J. D. Haynes obtain jobs being's J. D. had had so many wrecks." On the afternoon of Sunday, July 21, both Hatter and Cooper talked to Haynes about the Union. As he testified: "They asked me about the Union. I told them I didn't .. . I told them they knew about it as much as I did, and there- after I didn't care to discuss it . . . as I was going out of the door, Rodger Cooper said when he found out who the in- stigators was he was going to replace them." And finally, Hall telephoned Cooper at home on Friday evening, July 26, to inquire would he be working on Satur- day or Monday. Hall's testimony is that the owner an- swered : "'This all depends on how the meeting comes out tomorrow,' and I asked him what meeting he was talking about, and he told me the meeting concerning-at the Lake of the Woods concerning the Union. . . . He said, `You guys are out to hurt me, I'm going to hurt you."' As stated above, Hatter did not appear at the hearing. Cooper, in defense, denied having made any threatening statements to any employee or having illegally interrogated anyone. I credit these employees quoted above, both with respect to what they recalled of Hatter's statements and what they attributed to Cooper. The reasons for not cred- iting the owner's several denials will appear more clearly below. Accordingly, I find that by the following acts of Terminal Manager Hatter the Respondent violated Section 8(a)(1) of the Act: (1) interrogation of Schaffer , Walker, and Clem concerning union activity ; (2) statement to Schaffer, Blue, Raymond Haynes , Walker, and Clem that the Respondent would discharge employees in retaliation for union -activities; (3) statement to Walker that the Re- spondent would close down the entire business to avoid bargaining with a union ; and (4) statement to Clem that the Respondent would take steps to learn the identity of prounion employees. I also find that by the following state- ments of owner Cooper the Respondent violated Section 8(a)(1): (1) statement to Haynes that upon learning who the unioneers were the Company would replace them; and (2) statement to Hall that the employee's job depended upon the activities of employees at a union meeting and that Cooper would hurt the employees if they persisted in their union activities. C. The Discharges As to the asserted reasons for discharging all six of these men, the oral testimony-credible or not-is limited to what was offered by Rodger Cooper, the owner; only he testified on this critical part of the defense on behalf of the Respondent. Considering his total story-or stories-he was not convincing. On their very face, some of the indi- vidual explanations are incredible. 1. Steven Clem Cooper said he decided to discharge Clem because of repeated traffic violations and because his driver's license was suspended; as objective evidence to prove the conten- tion, he offered a report from the State Motor Vehicle Bu- reau issued after August 23, 1974, and a letter dated Sep- tember 25 from the Respondent's insurance agent advising against rehiring Clem because of his poor driving record. The traffic record shows Clem's last violation was a speed- ing ticket on April 27, 1974. Because he had received three tickets during a certain period, the department took action on August 23 by restricting his driving permit as of that day. Under the restricted license the driver, for a certain period, may use his personal vehicle only to and from work, and may otherwise without limitation drive a truck on the highways while working. There are other facts of record showing clearly the as- serted defense as to Clem is an afterthought. No traffic violations appear on his record from 1970 to 1974; he had speeding tickets in January, March, and April. No one ever said a word about this to him; indeed, when Hatter gave him the first hint of discharge, the day after the second union meeting which Clem had attended, even then, when asked why the discharge by the driver, the manager said he did not know. And, of course, there was no suspension action by the State, partial or otherwise, until a month after the discharge. The Motor Vehicle Department's report was issued only because there was a request made for it, and it shows the request was not made until August 12. It would belabor this Decision unduly to add: (1) Cooper's admis- sion that traffic reports of this kind do not come automati- cally from the Motor Vehicle Bureau, but only when re- quested; (2) another employee, Martin, 5 years a driver for the Respondent, had his driver's license similarly suspend- ed in 1972, Cooper knew about the suspension then, and Martin never did stop driving a company truck; (3) two more drivers-Ray Haynes and Dean Tomson-drove 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with suspended licenses; and (4) Manager Hatter's license was suspended in 1970, and owner Cooper's as well, also in 1970, but both continued to drive pay loads on the high- way exactly like the regular employees. 2. Tommy Hall and Daniel Berry Another example of Cooper's poor credibility at this hearing is his explanation of the release of Berry and Hall. For some months these two worked at general mainte- nance and all-around utility, and also at loading certain cheese barrels each morning and taking them to a railroad depot for the Kraft Company. They used to spend as much, if not more, of their time doing general work as at this barrel trucking. In May, 2 months before their dis- charges, the Kraft Company changed its system and start- ed moving the barrels with its own employees. Berry and Hall were simply given more of their other kind of work to do-such as repairing tires, unloading and cleaning trucks, building pallets, general warehouse work, etc. They earned no less after May than before, and Berry even said, without any contradiction by company witnesses, that he did over- time work after the barrel runs were discontinued. Nor did anyone contradict the testimony of both men that they were told after May there was plenty of work for them to do. No mention of the discontinuance of the barrel work as a source of concern to them was ever made before Hatter's statement, on the Sunday after the second union meeting, when he told the men they were fired. At the hearing Cooper said the only reason he kept these two men on in May was because he thought Kraft might revert to the old system again and use his men to move barrels, that the Kraft people had told him there was a possibility they might do that, and that he therefore strained to find something for Berry and Hall to do, giving them "odd jobs," although he really did not need them. He continued that on July 24, Wednesday, Kraft advised him with finality it would not change back to the former sys- tem, and that he told the men he would not need their services any longer "the following morning." "Q. [By com- pany counsel] ... So you did let them go at that time? A. Yes, I did." The truth of the matter is Cooper did not tell either Ber- ry or Hall anything about the discharge until after both had attended the second union meeting on the 27th. Hall testified he telphoned Hatter on the 24th to ask what work there was for the next day, Thursday; Hatter answered there was no work for the 25th but that Hall should call again Friday. During Friday Hall did call him again, and again Hatter said there was no work but gave no explana- tion. After 7 p.m. that evening, still Friday, Hall called Cooper at home-would there be work on Saturday? Hall's version is that the owner told him it all depended upon what happened at the next union meeting, and if the Union should hurt Cooper he would hurt the employees. Cooper's story is that Hall called him "on a Friday evening or a Saturday morning, Saturday evening, I don't know which one . . . and wanted to know if he should come back to work." Cooper then added his answer to the man was "To call Perry [Hatter] and ask if there would be work." If Cooper had really kept both these men on the payroll for 2 months although he did not need them-having them paint his mother's bathroom as a stopgap, he said-he would certainly have told them they were through as soon as he heard the barrel work was really finished. He did not; why not? Cooper had no answer to this incriminating question. By this time, earlier in the week but still before the second union meeting, Hatter had already told the men there would be serious retaliation if the union movement did not stop. I credit Berry's testimony that Cooper told him that Friday, or Saturday, it all depended upon what happened at the next union meeting. There is no corroborative evi- dence to support Cooper's story of final contract cancella- tion by Kraft; he said all arrangements were oral with that company, but no neutral witness was produced to testify about it. The conclusion from all this must be that Berry and Hall were not "temporary" employees after May, and that the real reason for their summary and surprise dis- missal following so immediately upon their attendance at the union meeting was pure implementation of Hatter's advance statement that people would be fired unless union activities ceased. 3. Donald Schaffer The discharge of this man fits the uniform pattern of the Respondent's treatment of all six employees named in the complaint. He was a "spotter," as distinguished from a reg- ular truckdriver. He worked the night shift at the Kraft Company plant, moving trailers to and from the limited loading dock locations, and placing (spotting) them about on Kraft property in readiness for the drivers who then took them away; he worked on about 15 or 16 such trailers each shift. Every once in a while he had some beer with his mid-shift meal in a nearby restaurant; he always did this during the 4 months he worked on this job. Owner Cooper testified he discharged Schaffer "for drinking on the job" and that he made the decision on "Friday morning," July 26. And once again the employee was told nothing about discharge until after he had attended the second union meeting. On Sunday night, July 28, Schaffer reported to the Kraft plant for his scheduled night shift and found Kirk, the day shift man, already there doing his work. Other than saying he had been ordered to be there, Kirk could offer no expla- nation of what had happened. Unable to reach Cooper or Hatter on the phone, Schaffer called his friend Clem and the two went to a restaurant. It was now about 11 p.m., 1-1/2 mile distant from the Kraft plant, and Manager Hat- ter just happened to be in the same restaurant. Schaffer asked Hatter was he fired, and the manager said yes. Clem asked the same question, and he was told yes. This is also the very moment Clem first learned of his own discharge. Both men asked why were they being dismissed, and the only answer they drew from Hatter was "that Rodger said we were fired." Hatter even had a $40 check in his billfold made out to Schaffer and gave it to the driver then and there. If Cooper had really decided to dismiss Schaffer on Fri- day morning, regardless of his reason, why did he not so advise the man? It is hardly a rational way to have an employee report for duty on a Sunday night without reason O. R. COOPER AND SON after such a decision . Cooper said he told Hatter of his decision, but I do not believe him. An explanation there must be, both for the failure to advise Schaffer before Sun- day and for Hatter saying, contrary to Cooper's testimony, that he did not know why the people were dismissed. This is a good place in this Decision to comment on the activities and the testimony of James Norman, an employ- ee witness called by the Respondent. When the employees returned from the first union meeting with a supply of au- thorization cards, they successfully solicited a number of other signatures ; Norman is the only employee identified on the record as one who also was asked to sign but did not do so. He testified that on July 25, Thursday, he saw a half-filled glass of beer on the restaurant table where Schaffer was having lunch ; he said the restaurant is 8 miles from his home. Asked how did he happen to be there: "I don't know, I just happened there to get a sandwich, I think." Asked had he reported what he had seen to anyone, the witness sat mute for a long period of time . Finally, he said : "I think I did. I ain't sure. . . ." With neither Cooper nor Hatter mentioning this business about drinking beer to Schaffer at all-not even at the moment of discharge-I can place little credence in Norman's testimony . First men- tion of this matter appears in the Respondent 's answer to the complaint. There was another significant incident. During the work- day on Wednesday the 24th, Berry and Hall were unload- ing a truck at the premises of a customer named J. M. Jones; Norman was also working there on an assignment of his own . Berry and Hall started telling him about the Union, saying how they had both signed union cards. Nor- man then said he had to leave for another load. When he returned to the location where Berry and Hall were still working, he told them that as soon as they were finished with that load they were to telephone Hatter. Berry did that and Hatter told him the two men were to "knock off" and that there was no work for them the next day. This is the sudden discontinuance of work for these two men which led to the several later conversations between them and Hatter and Cooper when both managers kept stalling them until after the second union meeting . The General Counsel urges an inference that Norman that day reported Berry's and Hall's union activities to Hatter, and that this was the reason why they were suspended in mid-shift. They both testified that nothing like this had ever happened to them on the job. The conclusion that Norman, himself opposed to the Union, served as the reporting source of information to the Company, is greatly strengthened by admissions drawn from him on cross-examination: Q. Did you ever tell management anything about the fact that people were asking about union authoriza- tion cards? A. I don't recall. Q. (By Mr . Shostrom) You don't recall? A. No. Q. You didn't report that? A. I could have . I don't remember for sure. 291 JUDGE Ricci: Did you report to the Company any- thing about the Union asking you to sign a card? THE WITNESS: I think I did, I ain't sure. Pretty sure. JUDGE Ricci: Who's name did you-did you give anybody's name to the Company as someone who asked you to sign a card? THE WITNESS: I don't remember-J. D. Haynes is one of them. MR. SHOSTROM : All right. Q. (By Mr. Shostrom) Do you remember reporting that- A. I think I did mention-Perry approached me about signing a card. Q. Perry asked you whether you'd signed a card? A. I don't remember if he did or not. Q. But you remember reporting that fact to Perry Hatter that J. D. Haynes had approached you about signing a card? A. Yeah. I mentioned it to him. Q. A. A . Q. A. Q. A. * * Do you know Mr. Berry? Yes sir. Did he ever approach you to sign a card? Seems like he did out at Jones-J. M. Jones. Did you report that to Mr. Hatter? I don't remember for sure. You may have? I may have. I ain't sure. Returning to the discharge of Schaffer, Cooper said at the hearing it was a regular part of the spotter's duty to drive trucks a considerable distance about the town-this to support the assertion of discharge for drinking on the job. Schaffer said that he had occasion to drive a truck any distance from the spotting place only twice during his en- tire 4-month stay with the Respondent. Employee Kirk, called by the Company, testified: "his [Schaffer's] is mostly straight spotting . . . . Just straight spotting. He does not have to run over the road." An employer may discharge an employee for drinking during working hours no matter what kind of work he does, and he does not need a regula- tory statute to justify the dismissal. But regardless of colla- teral rules, if in fact he does not discharge an employee for rule violation, later assertion to that effect in the defense of a Labor Board charge will not avail. On this total record I find the Respondent did not dismiss Schaffer because he drank beer, but rather because he favored the Union. 4. J. D. Haynes Like the rest of the Respondent's long-haul drivers, Haynes was a "percentage hauler"; this means he was paid a fraction-25 percent to 27 percent-of the amount re- ceived by the Company from the shipper. How many hours Haynes worked, or how many miles he drove, had nothing to do with his earnings. Returning from a long trip on Tuesday, July 23, he fell asleep at the wheel, drove off the road, and caused considerable damage to the vehicle. The 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defense here is Haynes was discharged because of the acci- dent, so costly to the employer. He never heard of the deci- sion to release him until the following Monday, July 29, after he too had attended both union meetings. In the light of all the facts of record pertinent to this man's dismissal, I find that he was discharged because of his prounion senti- ment, and not because of the damage he did to the truck. As set out above, on Sunday, the day after the first union meeting, Cooper and Hatter asked him what he knew about the Union, and when he evaded and refused to talk about it, Cooper told him that when he heard who the instigators were he would replace them. Cooper did learn who the instigators were for Norman, Respondent's own witness, admits that Haynes was one of the instigators whom he reported to management. The road accident was on Tuesday; Cooper himself drove Haynes back to town and looked after his physical condition. That very day Haynes asked would this cost him his job, but Cooper an- swered "it would be an excuse to get rid of me with this union thing coming up, but no, they were not going to fire me." With the doctor finding Haynes perfectly well, the driver came to the terminal Wednesday to tell Hatter he was ready to work. Hatter said only that the trailer was not yet ready and it might be Sunday before Haynes could go out on the road again. Friday Haynes was back again to inquire, and now Hatter told him "be ready to go Sunday ... to Bellafontaine Sunday night or to Konva, West Vir- ginia, Monday morning. . . ." After all of this Hatter told Haynes on Monday "I didn't work there no longer." More than once Haynes asked why the dismissal, and all he got from the manager was that "due to my activities the boss said I didn't work there no more." There is no coherent explanation of why the man was not told the accident had cost him his job, if in fact that had been the reason for his release, until after he had at- tended the second union meeting . I do not believe Haynes was fired because of that accident. This conclusion from the entire record is not to be taken as a finding that his falling asleep on the job was the Respondent's, or Cooper's, fault. Haynes told a story of riding the highways for over 35 continuous hours with no sleep, and in violation of Transportation Department rules, he insisted that Cooper demanded such performance from his drivers. I do not believe his story. Upon his return from that trip he produced, as required by applicable regula- tions, his trip record for the entire period, and it shows entries, in his own handwriting, indicating proper rest dur- ing all pertinent periods . Haynes said this was a false rec- ord, and that the real one, which he also kept simulta- neously, proves otherwise. He did not produce it. Moreover, Cooper had no substantial interest in rushing Haynes home, for however long it took the driver to get back, his pay was the same. 5. Hugh Walker The discharge of this man somewhat parallels that of Haynes. On Monday, July 22, his truck broke down while he was driving-something about the rear end transmission failing. He was not told anything about the discharge until Monday, July 29, when, among other things, Hatter said it was because "I tore up an engine, tore a rear end out of a truck." Hatter did not testify. Cooper's explanation at the hearing (he did not claim to have spoken to Walker at all at the time of the events), apparently intended to set forth at least the asserted ground for dismissal, is so vague it says nothing tangible. "We'd had a meeting Friday morning and they came in and laid all this stuff down on my desk, and it's very irritating when you find out you're not getting done what you're supposed to be getting done. . . . There is several things happen when a man comes in and lays all this stuff down on your desk and says, `look here, this man had so many violations in this length of time. What are you going to do about it?' " Apart from these words by Cooper, there is nothing in this entire record, either by way of contention or evidence, relating to any affirmative defense as to Walker. An ex- tended statement set out in the Respondent's answer, signed by its lawyer, is no more than an argument and has no support at all in the record in the form of evidence or proof. The best possible view of the record on behalf of the Respondent would be that its position now is Walker was fired because of the Monday breakdown of his truck. If this be the affirmative defense, I find it unsupported by adequate proof. Considering all the relevant facts, I find Walker, like the other five union-meeting-going employees, was discharged because of his prounion sentiments. Fearful that he might be prejudiced because of the truck breakdown, Walker went to Hatter's house on Tuesday evening to ask was his job in jeopardy. Hatter said no, " `that wasn't your fault,' that there was no oil in-or in the rear end, that they had found out, so he told me not to worry about it." And before Walker left that night Hatter found occasion to talk about the Union, and said the Com- pany would fire "the whole kit and caboodle." Walker spoke to the manager later in the week, again to inquire about work, and again Hatter said nothing about the acci- dent, or any doubt about Walker's continued employment. But he did keep pressing his concern over the union busi- ness : ". . . Don't lie to me. . . did anybody approach you about the Union." Of greatest significance is Hatter's inter- rogation that night about whether J. D. Haynes was "the head of it." Finally, on Monday, having learned lefthand- edly from other rank-and-file employees that he was through, Walker again went to Hatter's to ask was it true. Now Hatter did speak of the truck breakdown. Incredu- lous, Walker wanted to know, if this were so, why had he not been told earlier, but Hatter said he did not know the answer to that one. With this Walker said he knew why he was fired, and that it was because of his "union activities." To this Hatter's rejoinder was: "Well, you live with J. D." J. D. is J. D. Haynes, the man of whom Hatter had earlier inquired and one of the men whom Norman had reported to management to be a unioneer. I conclude that all six of the employees named in the complaint were discharged in July of 1974 in violation of Section 8(a)(1) and (3) of the Act. IV. THE REMEDY The Respondent must be ordered to cease and desist from repeating the unfair labor practices here found to O. R. COOPER AND SON have been committed or any others, and to take affirmative action necessary to restore the status quo. This means rein- statement and backpay to illegally discharged employees where appropriate and posting of usual notices. Late on the evening of July 29, two of the illegally dis- charged employees-Haynes and Clem-drove to the town of Bement, Illinois, where one of the Respondent's trailers was parked near the home of one of the drivers. Their admitted purpose was so that Clem could slash the tires on the Company vehicle. Clem did that, at about I a.m., while Haynes sat in the car a short distance away in the dark. Clem was arrested and indicted for the crime; he pleaded guilty to cutting about 18 tires and was sentenced to 18 months probation. By this gross misconduct both Clem and Haynes disqualified themselves from any right to rein- state or reimbursement of back wages, and their miscon- duct was such that no case precedent is required. Walker was reinstated to his old position before the start of the hearing and therefore there is no occasion to order his reinstatement now. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III above, occurring in connection with the operations of the Respondent described in section I above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By discharging Steven Clem, Tommy Hall, Daniel Berry, Donald Schaffer, J. D. Haynes, and Hugh Walker in July 1974 the Respondent has engaged in and is engag- ing in unfair labor practices in violation of Section 8(a)(3) of the Act. 2. By the foregoing conduct, by interrogating its em- ployees concerning their union activities and sentiments, by threatening to discharge its employees in retaliation for their union activites, by threatening to discontinue the en- tire business because of the employee's union activities, by threatening to inquire and ascertain the identity of pro- union employees, and by threatening to hurt the employees in order to curtail their union activities, the Respondent has engaged in violations of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER1 293 The Respondent, O. R. Cooper and Son, Urbana, Illi- nois, its officers agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or in any other manner discriminating against its employees because of their union activities. (b) Interrogating its employees concerning their union activities, threatening to discharge employees in retaliation for union activities, threatening to discontinue the business in order to curtail union activities, threatening to inquire into and to ascertain the indentity of prounion employees, and threatening to hurt the employees in punishment for the union activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights to self- organization, to form, join or assist Chauffeurs, Teamsters and Helpers Local 26, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Tommy Hall, Daniel Berry, and Donald Schaffer immediate and full reinstatement to their former positions or, if such positions no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges. (b) Make all of the foregoing employees, plus Hugh Walker, whole for any loss of pay or any benefit they may have suffered by reason of the Respondent's discrimina- tion against all of them. (c) 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 Order. (d) Post at its terminal plant in Urbana, Illinois, copies of the notice attached hereto and marked "Appendix." 2 Copies of said notice on forms provided by the Regional Director for Region 38, after being duly signed by its repre- 1 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 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives, shall be posted by the Respondent immediately notices are not altered, defaced, or covered by any other upon receipt thereof, and be maintained by it for 60 con- material. secutive days thereafter, in conspicuous places, including (e) Notify the Regional Director for Region 38, in writ- all places where notices to employees are customarily post- ing, within 20 days from the date of this Order, what steps ed. Reasonable steps shall be taken by it to insure that said the Respondent has taken to comply herewith.