Trumbull Asphalt Co., Inc.

TRUMBULL ASPHALT CO., INC. Trumbull Asphalt Co., Inc. and Chauffeurs, Team- sters, Warehousemen and Helpers Local Union No. 135 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America and Marvin P. Hamilton. Cases 25-CA-6631 and 25-CA-6791 September 26, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 19, 1975, Administrative Law Judge Rob- ert Cohn issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the Charg- ing Party filed exceptions and supporting briefs. The General Counsel filed limited exceptions and the Charging Party filed a "statement in support of Gen- eral Counsel's 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 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. The Administrative Law Judge found that the Re- spondent terminated employee Marvin P. Hamilton for reasons proscribed by the Act. We agree, but in our view we find it unnecessary to decide whether the Respondent violated Section 8(a)(3) of the Act. That is, the record amply supports the Administrative Law Judge's finding that Hamilton was discharged be- cause he called Superintendent John Freitag's atten- tion to the Respondent's failure to follow its own longstanding practices in assigning work to full-time employees. Thus, on August 5, Hamilton alerted Freitag to the fact that he had been assigned to a better run than fellow employee Larry Miller and, further, that the run should have been assigned to Miller because he had more seniority than Hamilton. Freitag "angrily" retorted that he was the supervisor and could assign the runs the way he wanted to. Two days later, on August 7, Hamilton protested to Frei- tag about the assignment of two runs to part-time 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule and Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). Ws have carefully examined the record and find no basis for reversing his findings. 797 employee Bud Bohner because he, Hamilton, felt that a full-time driver could handle the additional assignment and further because Bohner would re- quire the use of the truck Hamilton was then driving. As the Administrative Law Judge found, the Re- spondent assigned the better runs on the basis of se- niority. He also found that, as a matter of policy, the Respondent assigned work to part-time drivers only when the full-time employee drivers were unavail- able. Obviously, these matters were of considerable concern to the employees because they bore an inti- mate relation to their daily duties. See, generally, Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345 (C.A. 3, 1969), enfg. 171 NLRB 1040 (1968). Clearly then, Hamilton was engaged in an instance of protected concerted activity when, on his own be- half and that of his fellow employees, he protested the asserted misapplication of these longstanding policies. Therefore, we find that the Respondent vio- lated Section 8(a)(1) of the Act by discharging Ham- ilton for engaging in this activity. See Ben Pekin Corp., 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (C.A. 7, 1971); see also Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516 (1962); Interboro Contrac- tors, Inc., 157 NLRB 1295 (1966), enfd . 388 F.2d 495 (C.A. 2, 1967). In reaching this decision, we have carefully consid- ered the fact that after speaking to Freitag on August 7 Hamilton left the plant and refused to perform his final assignment of the day. The Respondent claimed that his conduct was tantamount to "insubordina- tion," but, in our view, Hamilton did not exceed the permissible bounds of his protected activity. For all that the record shows is that Hamilton presented his grievance to Freitag and, by the latter's admission, never uttered a "curse word or unpleasant word." After he had finished this brief discussion, Hamilton simply departed without incident and reported for work the following day. Furthermore, as the Admin- istrative Law Judge found, such conduct was not "unheard of," for employees Gilbert Grubbs and El- mer Hamilton testified that they had refused to "pull a load" without suffering any disciplinary conse- quences. The difference, as Freitag testified with re- spect to Grubbs' refusal, was Hamilton's "attitude." Thus, it is clear that the Respondent resented Marvin Hamilton's challenging its authority in presenting the protests and the manner in which he did so. At the most, Hamilton's conduct appears to have been impulsive. But we, with judicial approval, have long recognized that some leeway is accorded em- ployees in the exercise of protected activity. See, e.g., Thor Power Tool Company, 148 NLRB 1379 ( 1964), 220 NLRB No. 120 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enfd. 351 F.2d 584 (C.A. 7, 1965).2 Certainly we can- not say that Hamilton's alleged insubordinate con- duct could fairly be characterized as "indefensible." N.L.R.B. v. Washington Aluminum Co., supra, 370 U.S. at 17. In sum, we find that the Respondent violated Sec- tion 8(a)(1) of the Act by discharging Marvin Hamil- ton because of his concerted protected activities, as alleged in the complaint. Accordingly, we shall order that the Respondent cease and desist from engaging in such conduct. AMENDED CONCLUSIONS OF LAW Renumber paragraphs 4 and 5 of the Administra- tive Law Judge's Conclusions of Law as paragraphs 5 and 6, respectively, and delete paragraph 3, substitut- ing therefor the following: 3. By terminating the employment of Marvin Hamilton because he engaged in concerted activities protected by the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. "4. By ordering employees to remove all CB radi- os from the trucks driven by its employee drivers at its Brookville facility, the Respondent has engaged in, and is engaging in, unfair practices within the meaning of Section 8(a)(3) and (1) of the Act." 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 the Respondent, Trumbull Asphalt Co., Inc., Brookville, Indiana, 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 1(a): "(a) Discharging or otherwise discriminating against any employee because he presents grievances to us concerning the terms or conditions of his em- ployment." 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 After a hearing at which all parties had the opportu- nity to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and abide by the following: WE WILL NOT coercively interrogate employees with respect to their own or other employees' union activities and desires. WE WILL NOT threaten employees with dis- charge or other reprisals if they engage in union activities. WE WILL NOT promise benefits to employees if they refrain from engaging in union activities. WE WILL NOT prohibit our employees from in- stalling and utilizing CB radios in the trucks driven by them provided that they secure all necessary licenses and otherwise comply with all lawful rules and regulations pertaining to such radios. WE WILL NOT discharge or otherwise discrimi- nate against any employee because he presents to us grievances concerning the terms or condi- tions of his employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights under Section 7 of the Act. WE WILL offer to Marvin P. Hamilton immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges, and WE WILL make him whole for any loss of pay he may have suffered by reason of his discriminatory termination. TRUMBULL ASPHALT CO., INC. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This proceed- ing, heard before me at Brookville, Indiana, on January 29, 30, and 31, 1975, with all parties present and represented by counsel, involves a complaint issued 1 pursuant to Sec- 2 This is especially applicable in the circumstances of the instant case where, as far as the record shows, there was no established grievance proce- dure. In such cases, the employees must "speak for themselves as best they [can]." N L.R.B. v. Washington Alununum Co, 370 U.S. 9. 14 (1962). 1 Dated January 15, 1975, based upon an original charge in Case 25-CA-6631 filed by the Charging Union on October 23, 1974 (amended December 9, 1974). and upon an original charge in Case 25-CA-6791 filed by the individual Charging Party on January 6, 1975. TRUMBULL ASPHALT CO., INC. tion 10(b) of the National Labor Relations Act, as amend- ed (herein the Act), alleging that Trumbull Asphalt Co., Inc. (herein Company or Respondent), interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act by engaging in cer- tain conduct described more fully herein, including dis- crimination against employees in order to discourage mem- bership in and activities on behalf of Chauffeurs, Teamsters, Warehousemen, and Helpers Local Union No. 135 affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein the Union), all in violation of Section 8(a)(1) and (3) of the Act. By its duly filed answer, Respondent gener- ally admitted the jurisdictional allegations of the com- plaint, but denied the commission of any unfair labor prac- tices? At the close of the hearing oral argument was waived; however, counsel for all parties filed helpful posthearing briefs which have been duly considered. Upon the plead- ings, stipulation of counsel , the evidence, including my ob- servation of the demeanor of the witnesses,3 and the entire record in the case , I make the following: FINDINGS OF FACT 1. COMMERCE Respondent is, and has been at all times material, a cor- poration engaged in the business of manufacture , sale, and distribution of asphalt and related products. Its principal office and place of business is located in Summit, Illinois, with plants in various States of the United States including the facility involved in this proceeding which is located in Brookville, Indiana (herein the Brookville plant). During the past year, a representative period, Respon- dent, in the course and conduct of its business operations, caused to be delivered to its Brookville plant from sources 2 At various stages in the proceeding, i.e, before, during, and subsequent to the hearing counsel for Respondent have vigorously sought to introduce into evidence material in support of their contention that, by engaging in discriminatory practices among certain minority groups, the Charging Union has violated certain Federal Civil Rights laws. During the hearing, an interlocutory appeal was taken by Respondent from the ruling of the Ad- ministrative Law Judge granting the Charging Union's petition to revoke certain aubpenas calling for production of material pertaining to the compli- ance of the Charging Party with such laws. (This ruling, as well as all other rulings made by the Administrative Law Judge on this issue, was based upon the ground that such material was not relevant to any issue extant-or which could be properly raised by Respondent-in the present posture of the proceeding; i.e., the General Counsel has made no effort to amend the complaint to allege a violation of Sec . 8(a)(5) of the Act. Even if he had done so , the foregoing statement should not be construed as indicating that the ruling would have necessarily been otherwise.) On March 13 , 1975, the Board denied Respondent's request for special permission to appeal such ruling without prejudice to Respondent's right to raise the matter again before the Board in any exceptions and briefs which may be filed to the decision of the Administrative Law Judge in this pro- ceeding. Pursuant to the request of Respondent to have such interlocutory appeal and the Board's response thereto made part of the record herein, it is hereby ordered that said interlocutory appeal be denominated as Resp. Exh 20 and the Board's Order be denominated as Resp . Exh. 21, and received in evi- dence. 3 Cf. Bishop and Mako, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966). 799 outside the State of Indiana goods valued in excess of $50,000. In a like period, Respondent sold and- shipped products valued in excess of $50 ,000 to points located out- side the State of Indiana. I find, as Respondent admits, that it is now, and has been at all times material , an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background During the spring of 1974,° Respondent employed at the Brookville plant approximately eight production employ- ees and five full-time truckdrivers.5 Respondent also em- ployed two regular part-time truckdrivers: Elmer Hamilton (brother of Marvin Hamilton) and Bud Bohner.6 It was the policy of the Company to utilize the services of the regular, full-time drivers on a seniority basis; i.e., the older drivers in point of service with the Company received the better "runs." It was also a policy of the Company to utilize the regular drivers prior to using the part-time driv- ers. That is to say, the part-timers were used only in two basic situations: (1) where the Company needed material in an amount which the regular drivers could not, working full time, fulfill; 7 and (2) where a regular driver is unable to work because of sickness or other good reason. At the Brookville plant, Respondent manufactured two basic products: (1) asphalt materials used in roofing, etc., and (2) an automotive saturant used for deadening noise in automobiles. For the manufacture of such products, Re- spondent used two principal raw material sources: (1) Die- go Oil which it received primarily if not solely from a refi- nery in Hammond, Indiana (referred to in the record as the "Chicago run") and (2) "flux" which apparently is another type of oil which Respondent secured from other sources primarily from a terminal on the Ohio River called the "Boswell terminal." The wages of the truckdrivers were based upon the num- ber of trips they made per week (as distinguished from pay based upon number of hours worked, although there would be, of course, some correlation). Distances from the Brook- ville plant were marked off in zones and the parties are generally agreed that "the longer the trip the better the pay." That is to say, a truckdriver would net more from a long run, such as the "Chicago run," than performing dur- All dates hereinafter refer to the calendar year 1974, unless otherwise indicated. 5 The truckdrivers are the only employees directly involved in the instant proceeding. They are, in order of seniority, Ray Miller, Gilbert Hensley, Larry Miller (brother of Ray Miller), Marvin Hamilton, and Gilbert Grubbs. 6 Bohner had, in the past, been a regular, full-time driver for the Compa- ny, but had retired He was subsequently rehired on a part- time basis. The number of hours a truckdriver is allowed to drive is limited by the Interstate Commerce Commission to 10 hours per day 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the same period of time a number of short runs such as the "River run," i.e., a drive to the Boswell terminal on the Ohio River. The parties are in general agreement that, in the spring of 1974, the "Chicago run" was looked upon by the drivers as the most desirable work and it was normally assigned to the drivers with the most seniority. B. The Union Campaign, and its Aftermath It appears that in the spring of 1974, some of the truck- drivers, being dissatisfied with some of the working condi- tions of Respondent's Brookville plant, discussed unioniza- tion.8 Sometime in May, Larry Miller contacted Pete King, a representative of the Union, and advised him of the situ- ation. As a result of that conversation, a meeting of the interested truckdrivers was held at a truck stop in nearby Harrison, Ohio, on June 5. At that meeting, union authori- zation cards were distributed and the four employees who attended signed cards.' The authorization cards were re- turned to the union representative, on the basis of which a petition was filed by the Union with the NLRB on or about June 11,10 Following customary Board procedures, a copy of the petition was mailed to the Company on the same date, and was received by John Freitag, superinten- dent of the Brookville plant, on or about June 12 or 13. Freitag testified that the receipt of the copy of the peti- tion, along with the Board's covering letter (G.C. Exh. 7), constituted his first knowledge of the union activity among the employees; that he thereafter asked Ray Miller if the latter knew anything about such activities, and that Miller responded, "Yes, that we were all for it." Freitag further testified that he immediately telephoned Aikens Miller, vice president of the Company, whose offices were in Sum- mit, Illinois. The latter advised Freitag to mail him the letter and "not to talk to nobody about this matter." How- ever, the evidence shows that Freitag did, in fact, talk to some of the truckdrivers following receipt of the letter, and it is on the basis of some of these conversations that the General Counsel alleges that Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. C. Alleged Interference, Restraint, and Coercion 1. By John Freitag Most of the conduct allegedly engaged in by an individ- ual which was assertedly violative of Section 8(a)(1) of the Act was attributable to John Freitag, the plant superinten- dent. This individual, who had previously worked for Re- spondent at its Medina, Ohio, plant, commenced work at the Brookville facility in mid-1973. He acknowledged that in January or February he advised an employee in Brook- ville that Respondent, at the Medina facility, had dis- 9 It appears that the old manager of the plant (Boles ) died, and the Com- pany, in 1973, brought in the new management team of Freitag and Kleine. The changes resulted in a deterioration of the working relationship between management and the employees. 9 They were Ray Miller , Larry Miller, Gilbert Grubbs, and Marvin Ham- ilton. 10 That case is docketed as 25 -RC-5719. charged employees for attempting to bring in the Union there.I I Employee Larry Miller testified that one day in May, he and Gilbert Hensley were at work at the "dump box" when Hensley said that if the Company "Got too rough on us we would go to the union." Freitag, who was present at the time, responded that "If we did he would fire all of us." 12 I find the foregoing threat to be clearly coercive and inti- midatory to the exercise of employee rights under Section 7 of the Act, and therefore violative of Section 8(a)(1) of the Act. Larry Miller also testified as to a conversation he had with Freitag on the day the latter received the notification from the National Labor Relations Board that the Union had filed a petition. Miller testified that he was fueling his truck when Freitag came over and told him that he had received a letter from the Labor Board that the Union wanted a vote, and that "There is going to be a union vote here." Miller responded, "John, it is nothing personal against you but we just feel that we would be better off with the union." Miller then asked what Freitag thought the Company would do if the Union was successful, to which Freitag responded, "They would probably find out who was in back of it and fire them, the one or two people, whoever was in back of it at the time." I find, based upon the credited testimony of Miller, the foregoing threat to be violative of Section 8(a)(1) of the Act.13 Marvin Hamilton testified that on the day that Freitag received the notification from the NLRB of the union peti- tion, he was in Freitag's office on some business relating to the availability of trips, when Freitag showed him the letter and asked him if he knew anything about it. Hamilton stated "No." 14 I find that this interrogation concerning union activities, taking place in the sanctum of the superintendent's office, without any assurance against re- crimination, constitutes coercive interrogation violative of Section 8(a)(1) of the Act.15 11 He explained that this had occurred prior to his employment at Medi- na. Since this statement occurred outside the Sec. 10(b) period, it is not al- leged by the General Counsel as violative of Sec. 8(a)(1), but was only submitted for the purpose of background evidence. 12 The foregoing finding is based upon the credited testimony of Miller who impressed me as a candid and honest witness. Hensley was not called as a witness by either party. Although Freitag denied making such a state- ment, I do not believe that Miller was the kind of person who would fabri- cate it particularly where he placed another employee there and could not have known that the Company would not call that employee as a witness against him . I also note that Miller was still an employee of Respondent at the time of the hearing, and I have taken such fact into consideration in my credibility findings. See Georgia Rug Milt, 131 NLRB 1304, 1305, fn. 2 (1961), enfd . as modified 308 F.2d 89 (C.A. 5, 1962); AstroSystems, Inc, 203 NLRB 49 (1973); Federal Envelope Company, 147 NLRB 1030, 1036 ( 1964). 13 As previously noted, Freitag acknowledged interrogating Miller about the union activity shortly after he received the letter from the N.L.R.B. Although he testified that shortly thereafter he contacted the vice president of the Company who advised him not to say anything about the matter to anyone, I believe that Freitag had certain conversations with employees, one of whom was Miller, in order to ascertain just what the situation was. In line with his previous statements concerning his own and the Company's view toward union activities of its employees, I find that the statement attributed to him by Miller has a definite ring of logic and plausibility attached to it. 14 He explained at the hearing that he deliberately lied on this occasion in order to protect the other drivers. 15 See N L.R B v. Cameo The, 340 F.2d 803 (C.A. 5, 1965); Bourne v. TRUMBULL ASPHALT CO., INC. On the same day, later in the afternoon , employee Elmer Hamilton came into the "lab" (the place where the drivers received -their assignments) to see how many "runs" he had. Freitag was there and had the letter from the NLRB with him. The latter asked Hamilton "Do you know any- thing about this?" Hamilton replied, "What's that?" Frei- tag responded "The union, the right to vote on the union." Hamilton responded, "No sir, I don't." Freitag continued "If I find out who started this-the guy or the guys-I will get rid of them ...." 16 Freitag then went on to explain why he did not like unions, and told Hamilton of a place he used to work prior to his coming with the Respondent; that a union represented the employees there but failed to stand behind Freitag when the Company terminated him presumably without cause.17 I find, based upon the credited testimony of Hamilton, that the foregoing interrogation and threat constituted an additional violation of Section 8(a)(1) of the Act.18 2. By Aikens Miller, Jr. The complaint alleges that on or about August 1 the above-named vice president of the Company promised em- ployees certain benefits, including air-conditioning in their trucks, if they refrained from becoming or remaining mem- bers of the Union. The evidence shows that Aikens Miller did, in fact, make a speech to the truckdrivers on July 31 for the apparent purposes of: (1) ascertaining what trig- gered the union movement, and (2) attempting to persuade the employees that the Company and the employees could work out their differences better without a union than with one. Ray Miller testified that in response to Aikens Miller's question as to what triggered the union movement, he re- plied that there was lack of communication with local management and that the employees wanted better work- ing conditions. In that connection, he mentioned better N.L.R.B., 332 F.2d 47 (C.A. 2, 1964). 1 note that one of the factors consid- ered by the courts in weighing the lawfulness of company interrogation of employees is "truthfulness of the reply " I find it significant that Hamilton, as well as the other truckdrivers , were well aware of the Company's hostility toward the Union , and this was one of the principal reasons for carrying on such activities in secrecy, and was also no doubt responsible for the manner in which Hamilton replied to Freitag's question. i6 Testimony of Elmer Hamilton. i7 In its brief, Respondent made several references to the fact that Freitag was a former union member, from which it is argued that, therefore, his sympathies would tend to fall on the Union 's side. However, Freitag's own statement of his disenchantment with the Union for not supporting him would seem to belie such argument. is Freitag generally denied telling any of the drivers that if he found out who started the Union he would get rid of them. He acknowledged having a conversation with Hamilton about a week before the election (on August 2) in which he advised the latter of his dislike for the Union at his (Freitag's) prior employment because the Union did not support him in a grievance which he had with management. However , I am convinced that, as noted previously, Freitag made an extensive effort on the day he received the letter from the NLRB to ascertain the strength of the union movement among the truckdrivers, and I find that the conversation took place essen- tially as Elmer Hamilton testified. This conviction is further supported by the testimony of Ray Miller who testified that about 8 to 10 days after he signed the card for the Union, he was fueling his truck one morning when Freitag came out and asked him if he knew anything about the drivers signing up for the Union , and who they were. Miller responded , "Yes, we all did, John . We all signed up for it." Freitag responded, "Okay, I didn't know," and turned and walked away. 801 seats in the trucks and air-conditioning. Both men testified at the hearing that Aikens Miller stated that he could not promise. the employees air-conditioning or better seats in the trucks, or other benefits, but that if the Union was not successful in the election he could come back and talk about those things the following Saturday.19 Respondent argues, and I agree, that there is no evidence in the record that Aikens Miller, at the meeting on July 31, or at any other time, directly promised employees benefits of any kind in return for their vote against the Union. In- deed, Miller told the employees that he could not promise them any benefits at that time, but did commit himself to come back after the election (if there was no union in- volved) and sit down and discuss those matters.20 - Under these circumstances, including the context of un- fair labor practices engaged in by Freitag hereinabove dis- cussed, I cannot agree with Respondent that the Board's recent decision in Uarco, Inc.21 disposes of this issue. In Uarco a panel majority of the Board (one member dissent- ing) found no violation of Section 8(a)(l) of the Act where an employer held a series of meetings with employees at which employee grievances and complaints were aired. The majority reiterated the theory of violation that an employer interferes with employee rights during an organizational campaign where he solicits grievances with the implied promise .to correct those inequities he discovers as a result of the inquiries. "However, the Board went on to point out that it was not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct grievances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer." In Uarco, as in the instant case, the employer's represen- tative at the meeting made an express "no promise" re- sponse to the employees' complaints. The Board majority held that "In the circumstances of that case" this response disspelled "any logical anticipation of improved conditions which the employees otherwise might have had."22 The Board made particular reference to the fact that the record in Uarco was "Devoid of any showing of union animus on the part of Respondent, and there is not one scintilla of evi- i9 The election was scheduled to be held on Saturday, August 2, which was 2 days subsequent to the July 31 meeting. The Saturday of the following week would have been August 9 20 Miller's testimony on this point is as follows- I told them that I would certainly find out from the leasing compa- nies why the new equipment had not had air conditioning on it I said 'to go any farther to tell you that I am going to put air conditioners on or anything like that I can't do that' I said 'I can't promise you or tell you that I will put air conditioners on at this moment' • a a BY MR. LEDERER. Q. Do you remember any other questions that arose in this meeting? A Yes. There was a question concerning one of the rates or the pay zones. I told them at that time I could not again discuss that with them. I said that 'if after the election there is no union involved I can come back and sit down and we can talk about these things Under the circumstances the way it is right now I cannot discuss it.' 2i 216 NLRB No. 2 (1974) 22 216 NLRB No. 2 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dence that Respondent's preelection activities were con- ducted in the context of other unfair labor practices." Here, unlike Uarco, the meeting did take place in the backdrop of the commission of serious unfair labor prac- tices. Equally important , the "no promise" statement of Aikens Miller was made in a context which told the em- ployees, in effect, that he was presently unable to make any promises, but assuming there was no union in the picture a week from the election, he would come back to Brookville and "talk about these things." Under these circumstances, it would seem highly unreal- istic to equate the "no promise" response in this case to that in Uarco. Certainly, the employees here could reason- ably anticipate that their employer would listen sympathet- ically to their grievances, and in all probability do some- thing to alleviate them in a subsequent meeting conditioned upon their rejection of the Union. According- ly, I find that the implied promises made by Aikens Miller at the July 31 meeting constituted interference , restraint, and coercion in violation of Section 8(a)(1) of the Act 23 D. The Alleged Discrimination The complaint alleges that since on or about April 24, Respondent discriminated against its employees in viola- tion of Section 8(a)(3) of the Act by engaging in certain described conduct 24 We come now to a consideration of the evidence in support of these contentions. 1. The discontinuance of the "Chicago run" Within several weeks following the receipt of the notifi- cation that the Union had filed a petition for an election, Respondent decided to-and did-eliminate the "Chicago run" for the Brookville truckdrivers. It substituted, for that source of supply, transportation by railroad tank car. Counsel for the General Counsel noting the timing of such exchange of means of transportation , argues that it was a retaliatory measure instituted by Respondent to dissuade the employees from their adherence to the Union. Respon- dent urges that it was prompted by purely economic mo- tives. The evidence shows that Respondent had utilized rail service as a source of supply in years past, but that such was discontinued approximately 4 years ago because the Company had changed sources of supply. Aikens Miller testified that approximately 2 years ago he was informed that rail service to Brookville had been discontinued alto- gether. However, upon his visit to Brookville on June 21 (which he testified was occasioned primarily because of a pollution problem), he noticed that there was a boxcar on his neighbor's railroad siding. He inquired of Plant Manag- er Kleine how it was that such a boxcar was there in view of the discontinuance of rail service, and Kleine replied that there was service but that it was slow and could handle only certain size cars. When he returned to Chicago, Ai- 23 See Reliance Electric Company, 191 NLRB 44 (1971) 24 The date set forth in the complaint must have been an inadvertancy, since the union activity did not commence until May and there is no evi- dence that Respondent became aware of it until on or about June 13 kens Miller checked into the matter and ascertained that shipping by tank car was feasible and cost $2 a ton less than shipping by truck. Accordingly, he instructed the traf- fic department of Respondent to start the tank cars imme- diately. As of the time of the hearing, Respondent was still utilizing tank cars as the means of transportation of its supply of Diego oil from its Hammond, Indiana, source of supply. In early August, Respondent transferred two of its trucks from its Brookville plant to its Summit , Illinois, plant because it had commenced using at that location oil from a new source of supply-Robinson, Illinois 25 The trucks were secured from the Brookville facility because of their relative lack of use apparently due to the discontin- uance of the Chicago run as well as the fact that during the summer months the manufacture of automotive saturant is diminished because of the model changeover in automobile production. However, the Company determined, in Au- gust, that it could profitably utilize the Robinson oil at Brookville, and deliveries were commenced there in Sep- tember. Deliveries were made by a contract carrier called Refiners which was utilized because of the presence of the Brookville trucks in Summit. The Refiners company con- tinued to deliver the Robinson oil to Brookville until Janu- ary 1975 at which time the contract apparently was termi- nated and the Brookville drivers commenced hauling the Robinson oil. It is true that the timing of the discontinuance of the Chicago run renders the motive suspicious in view of the evidence that Respondent clearly desired to run its Brook- ville plant without the presence of the Union there. Howev- er, there is scant evidence in refutation of Respondent's assertion that the foregoing changes in sources of supply and the means of transporting them were motivated by economic circumstances. 6 Also, while I have found exten- sive violations of Section 8(a)(1) committed by the plant superintendent, I note the lack of any threats by higher supervision with respect to changes in source of means of supply. Indeed, on one occasion in June, Plant Manager Kleine told Ray Miller that the Company had discontinued the Chicago run but that it had no bearing on the Union whatsoever-that they were "going to get in by rail [be- cause] it is cheaper for us to bring it in by rail than it is by truck." 27 Accordingly, after a consideration of all the evidence in the record, I find that the General Counsel has failed to sustain this allegation by a preponderance of the evidence and will therefore recommend that the complaint, to that extent, be dismissed. 2. The removal of the CB-(Citizen Band) radios In late winter or early spring, four of the five regular 25 All of Respondent's trucks are leased from a company known as HMT Leasing, on a 3- to 5-year basis. The tank car trailers must be specifically constructed to withstand the heat of molten asphalt, so that their availabili- ty is limited and they must be ordered months in advance. 26 Counsel for the General Counsel sought to prove that there was some additional cost involved because the railroad tank cars had to be "steamed out" on occasion while truck tank cars did not . However, Respondent showed that any cost involved in this procedure was negligible. 27 Testimony of Ray Miller. TRUMBULL ASPHALT CO., INC. truckdrivers installed CB -radios in their trucks (the radios were the employee's personal property, purchased individ- ually by each employee). Each employee installed his radio in the truck which he customarily drove, without seeking or securing permission from Respondent 28 Freitag testified that he first learned of the radios in April when he noticed the antennas on the trucks , but he took no action at that time. He further testified that he discussed the matter with Kleine in May, but still no action was taken . It appears that the matter of the CB-radios was discussed among Messrs. Kleine, Aikens Miller, and Freitag when Aikens Miller visited the plant on June 21 , but still nothing was said to the employees concerning the matter . Following the June 21 meeting, Aikens Miller returned to his office and thereafter took a vacation until on or about July 5. It was not until he returned from that vacation that he asked his safety director, a Mr. Short, to check into the legality of the employees having CB-radios in the trucks . About a week later he was informed by the safety director that having such radios in the trucks without proper authority or licen- ses from the Federal Communications Commission was il- legal, but that with proper licenses the radios themselves would be legal. As a result of this information, plus being advised by Kleine of a newspaper article in which it was stated that CB-radios were being used to break laws and speed traps, Miller made the decision that the radios should be removed. However, he determined that such an order if given immediately prior to the election would have an upsetting effect, and so delayed the order until the latter part of August. In its brief, Respondent asserts that its motive in or- dering the removal of the CB-radios was "to further legiti- mate business interests in ordering their removal (lower speeds, less likelihood of accidents), and to avoid adverse FCC reaction against Respondent and the effect of the order was not one that was inherenty (sic) destructive of employee exercise of Section 7 rights , or even mildly im- pinged on the exercise of those rights." 29 It is difficult to fully credit the veracity of this statement for several reasons : ( 1) the lapse of some 3 months between the learning of the existence of such radios by Respondent and the decision to remove them . Certainly if Respondent was as concerned about the existence of the radios as it would have us believe , it would not have waited so long to take some action to either regulate or remove them; (2) it appears from Aikens Miller's own testimony that the radi- os are not illegal per se, but only if unlicensed. Yet, Re- spondent did not warn the employees to that effect, and made no condition in its order of removal that the employ- ees could retain the radios upon securing proper licenses; (3) there is no evidence in the record of any problems or adverse incidents accruing to Respondent resulting from the existence of the radios; and (4) finally, Respondent apparently did not order the radios removed from its 2e The apparent reason for the installation of the radios was to enable the drivers to make their trips in a shorter space of time . This because the radios were used for communication among truckdrivers to advise each other of traffic tie-ups, speed traps, and other such impediments . In addition, it is well known that the radios provide a means of combatting loneliness for lone hauls of over-the-road truckdrivers. 2 Resp. br., p. 26. 803 trucks at the Medina, Ohio, facility 30 In sum, I find that Respondent's defense on this aspect of the case does not withstand scrutiny, and therefore find and conclude that the order for removal of the CB-radios in August was in retaliation for the employees' protected activities, and therefore discriminatory and coercive in vio- lation of Section 8(a)(3) and (1) of the Act. 3. The use of part-time employees in lieu of full-time drivers The complaint alleges, in essence, that following receipt of notification that the truckdrivers were engaged in an organizational campaign, Respondent "utilized part-time employees in lieu of full-time drivers." I find that the evi- dence does not support this contention. As previously noted, it was always the policy of Respon- dent to utilize the services of the regular, full-time drivers reserving the use of the two part-time drivers to situations where either of the following situations existed: (1) the full- time drivers were unable to work because of illness, emer- gency, or they had already worked the time allowed by ICC regulations; or (2) Respondent required supplies ex- ceeding the capability of the full-time drivers to fulfill. On the basis of the record evidence,31 it is apparent that this contention of the General Counsel has not been prov- en by substantial evidence. Thus the records show that, during 1974, most of the runs assigned to part-time em- ployee Bohner were made during the period in April and May. It is true that the other part-time employee, Elmer Hamilton, worked a substantial number of hours during August and September, but the record also shows that Hamilton normally came to work in the late afternoon, and performed his duties after the full-time drivers had com- pleted their runs for the day. Accordingly, the evidence is not substantial that Elmer Hamilton was utilized by Re- spondent to decrease the work opportunities of the regular drivers. I shall therefore recommend that this allegation of the complaint be dismissed. 4. The alleged discriminatory discharge of Marvin Hamilton Hamilton was employed by the Company as a truckdriv- er in September, 1973, and worked continuously until his discharge on August 7. Respondent asserts that the reason for the firing of Hamilton was because of his insubordina- tion to Plant Superintendent Freitag that day. Counsel for the General Counsel and the Union argue, on the other hand, that the assigned reason was a pretext and that the real reason was because of Hamilton's union and/or con- certed activities protected by Section 7 of the Act. Since the issue revolves around the Company's policy and prac- tices respecting assignment of work, a review of such mat- ters seems appropriate. As previously noted, the Company recognized seniority among the truckdrivers as respects the assignment of work and its desirability. That is to say, the most senior of the 30 See testimony of Ray Miller to the effect that on a recent trip to Medi- na he noticed the antennas of such radios on the Company's trucks there. 31 See, e.g, G.C Exh. 8 and Resp. Exh 17. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truckdrivers in terms of length of service received the more desirable runs. Prior to or about February, the system was that the older drivers received their first assignment of the day based upon this system, but that the first driver back at the plant following the first run then received the second assignment according to the system, and so on. In Febru- ary, as a result of a complaint of the drivers to Kleine, the system was changed to one utilizing clipboards. Under the clipboard system, the drivers were assigned all of their runs for the following day by means of a clipboard which was hung in the "lab" (dispatch room). Each driver had a clip- board, and his assignment for the following day was posted by Freitag in the afternoon of the preceding day. This method of assignment of runs was in effect at all times material subsequent to February. As respects union and/or concerted activities, the record shows, as previously pointed out, that Hamilton had signed a union card on June 5; that Freitag had interrogated him concerning the union matter on or about June 13, and Hamilton denied knowledge of it; however, Ray Miller had advised Freitag that all of the truckdrivers had signed for it. At the NLRB election, which was held on August 2, the Union won by an overwhelming majority-only one truck- driver voted against union representation. The record shows that several days following the elec- tion (about 3 days prior to the discharge), Marvin Hamil- ton noticed on the clipboards that he had been assigned a better run than Larry Miller. Hamilton, feeling that this was not proper under the system extant in the plant, called it to the attention of Freitag, advising the latter that the run should be switched since Miller had more seniority than he. Freitag reacted rather angrily, advising Hamilton that he (Freitag) was the supervisor and that he would assign the runs the way he wanted to.32 At about this time, as previously noted, the Company was operating six trucks-four Fords, a Dodge, and an International. Hamilton normally drove the Dodge. On August 6, Hamilton drove the Dodge truck on his normal runs, but when he returned to the plant he told him to take the International truck the following morning. Hamilton checked the clipboards and found that he was assigned two runs to the River the following day. He testified that there were clipboards up for all of the other regular drivers, but there was no clipboard up for Bud Bohner, the part-time driver. The following day, August 7, he made his first run to the River returning to the plant around 9 a.m. While his truck was being unloaded Hamilton went into the lab where he saw a clipboard for Bud Bohner indicating that the latter was assigned two runs to the River. Hamilton became up- set at this point because a regular driver could normally handle 3 or 4 runs to the River during a normal working day. Also, the record shows that Bohner normally drove the International truck, and since the Dodge was inopera- tive that day Bohner would have had to use the Interna- tional in order to complete his assignment. Hamilton proceeded to Freitag's office. On the way, he passed Bohner, who was sitting in the outer office, and 32 However, the switch in loads was made. exchanged hello's According to Hamilton's testimony he told Freitag that "if he (Bohner) is that near broke let him have my other load too," and left the office. Freitag's version of the incident that morning is some- what at variance with that of Hamilton. Freitag testified that he had heard Hamilton come into the office at about 9 a.m. on August 7 and heard him exchange hello's with Bohner-that this was after Hamilton had finished his sec- ond load.33 According to Freitag, Hamilton came into the office and appeared upset. When Freitag asked him if he was sick Hamilton responded "I am going home" and started out of the door. Freitag asked him what was wrong to which Hamilton replied that Freitag was giving the loads to part-time drivers and "you are cutting me out." Freitag then observed Hamilton proceed into the parking lot and get into his car and start to pull away when he (Hamilton) apparently had a change of mind, got out of his car and into his truck; that he pulled the truck into the parking lot, returned to his car, and drove away. According to Freitag, no assignments had been posted that day for the part-time drivers; that Bohner had come in that morning and asked for work but that Freitag had orally advised him that when a truck was available he (Bohner) would have some runs 34 Freitag then contacted Kleine by telephone and told him what had occurred. Kleine said that he would call Freitag back in a few minutes, and did so. In that telephone con- versation, Kleine advised Freitag that Hamilton's conduct clearly constituted insubordination, and to let him go. On the afternoon of August 7, Freitag instructed the of- fice girl to "try and get in touch with Hamilton and find out what was going on"; however, according to Freitag, she was apparently unable to contact Marvin Hamilton that day. 35 Marvin Hamilton testified that he called the plant about 3 o'clock that afternoon and spoke to Carolyn (one of the secretaries) at the Company, to in- quire what was scheduled for the next day. She told him that "they had only one run and the rest of them was to the River." 3 Later in the afternoon of August 7 Freitag saw Elmer Hamilton at the "lab," and advised the latter that he (Frei- tag) had fired his brother that day. When Elmer Hamilton later went home, he called his brother (Marvin) and asked the latter whether he knew that he was fired. Marvin said that he did not, and Elmer told Marvin of his conversation with Freitag. The next day, August 8, Marvin Hamilton went to the plant in the morning to see whether or not there were any runs posted for him. There were not, and he returned home. Later in the afternoon he went back to the plant and 33 Freitag asserted that Hamilton had been assigned three runs that day- one to Phillip-Carey (in Cincinnati) and two River runs. 34 Bohner was not called as a witness at the hearing, although it was not shown that he was unavailable His testimony would have, no doubt , assist- ed materially in resolving credibility. Without it, I am inclined to credit Hamilton to the extent that his version differs from Freitag In addition to demeanor considerations, I note the corroborative testimony of Gilbert Grubbs who stated that he recalled that on the afternoon of August 6 he observed the clipboard reflecting that Hamilton had two River runs sched- uled the following day-the same as Grubbs. 35 Testimony of Freitag. None of the office personnel were called as wit- nesses. "Testimony of Marvin Hamilton TRUMBULL ASPHALT CO., INC. talked with Ray Miller and Grubbs. As a result of that conversation, Ray Miller talked to Freitag, and told the latter that Freitag should either tell Marvin Hamilton that he was fired or put him back to work. Freitag agreed, went to the office and secured Marvin Hamilton's check, gave it to Marvin Hamilton, and advised him at that time that he was fired. The next day (Friday, August 9) Marvin Hamil- ton went to the plant to secure his final check. It was at that time that Freitag advised Hamilton that the latter had been discharged for insubordination , to which Hamilton replied, "It has been nice knowing you and I hope to see you in heaven." 37 Analysis and Concluding Findings In my view counsel for the General Counsel proved a prima facie case of discrimination by showing that Marvin Hamilton had been a regular employee of Respondent for a substantial length of time, and that there was nothing in his employment record to indicate that he was other than an exemplary employee as far as his production and con- duct was concerned; that he had, shortly before his termi- nation, become a participant in concerted activities pro- tected by the Act, to which Respondent was concededly opposed-indeed, the record supports the finding that the immediate supervisor of Marvin Hamilton was so vigor- ously opposed to such activities that he engaged in sub- stantial unfair labor practices himself; that thereafter Hamilton was discharged under circumstances which, the record shows, were at other times condoned. In this pos- ture, the burden shifts to the employer "to establish that he was motivated by legitimate objectives since proof of moti- vation is most accessible to him." 38 As previously indicated, Respondent's defense is predi- cated upon Marvin Hamilton's asserted insubordination, i.e., his refusal to "pull a load"; that there is no substanial evidence that Respondent was aware that Marvin Hamil- ton was a participant in the Union's organizational activi- ties ; and that extenuating circumstances existed in other instances where disciplinary action was not imposed for employees engaging in conduct similar to that for which Marvin Hamilton was discharged. Indeed, Respondent would point to the case of Gilbert Grubbs whose union activities were similar to that of Marvin Hamilton, and who failed or refused to "pull a load" a short time follow- ing the incident involving Marvin Hamilton, but Grubbs was not disciplined. We come now to an examination of the evidence involving these matters. The record testimony reflects that it was not an unheard- of circumstance for a truck driver in Respondent's employ to refuse to "pull a load." Employees Marvin Hamilton, Elmer Hamilton, and Gilbert Grubbs all testified that they had, in the past, refused to pull a load for one reason or another and never had any disciplinary action imposed upon them as a consequence of such conduct. Superinten- dent Freitag acknowledged that he did not consider a truckdriver's refusal to pull a load a sufficient cause for disciplinary action if the driver stated an excuse which he 77 Testimony of Freitag. 38 N. L. R. B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967). 805 (Freitag) considered adequate-such as being sick or tired. However this is contradicted by the testimony of Gilbert Grubbs, whom I credit, that in mid-May he refused to pull a load to Cincinnati because Freitag had assigned a Fort Wayne, Indiana, trip to Bohner while assigning the Cincin- nati trip to Grubbs. When Grubbs complained to Freitag about it, the latter responded that Bohner was the oldest seniority man in the plant, to which Grubbs replied that Bohner's seniority did not count because he was a part- time man. As a result Grubbs went home, but was never reprimanded for not pulling the load. A second incident occurred in August, about a week following the election. According to Freitag's testimony, Grubbs complained to him at that time because Freitag had assigned a trip 7 to Bohner while Grubbs was assigned a trip 5 (a trip 7 is a longer run than a trip 5). Although Grubbs complained to Freitag about the matter, Freitag decided to "let everything stand as it was," and Grubbs went home. Freitag took no disciplinary action because, as he testified, "He (Grubbs) did not pull a roofers flux and there wasn't any great need for it. It didn't bother me." 39 Freitag further testified as to why he disciplined Marvin Hamilton but did not discipline Grubbs in view of the sim- ilarity of the incidents involving the two men: Q. Why did you not fire or otherwise discipline Mr. Grubb and you did fire Hamilton? A. It was the nature of the reason that Marvin Hamilton didn't pull his load. It was his attitude to- ward it. Q. Tell exactly the difference so the Law Judge and the Board understand. A. Marvin was dismissed for his just the way he refused to pull his load. Q. What was that? A. I mean he just accused me of giving that to part- time drivers, giving all his loads to part-time drivers, and Gilbert's refusal was there is no big thing about it. Q. Can you be more specific? A. That's what I was trying to think. His actions just weren't the same as Marvin had. Assuming the veracity of the foregoing testimony,40 one may reasonably inquire-in view of the similarity of the incidents-what the distinguishing factor was which 39 It is not contended that Marvin Hamilton's conduct damaged or incon- venienced Respondent in any way since, presumably, Bohner pulled his remaining load that day. 40 This qualifying phrase is utilized in view of Freitag's testimony, above adverted to, in which he testified that no disciplinary action was imposed on other occasions of refusal to pull loads because the drivers had proper rea- sonable excuses. Q Do you remember any instances during 1974 in which any drivers other than Marvin Hamilton refused to pull loads9 A Not without a good excuse. Q Do you remember any who refused to pull loads and give excuses therefor? A. Yes Q. Tell any that you remember indicating the date and the circum- stances each time, and go slowly so that you remember any that you think occurred? A I remember Larry Miller he told me he was tired and wanted to know if he could go home and not pull his extra load. I said fine. Ray, the same thing He was tired He had-his daughter or daughter-in-law Continued 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prompted Freitag to terminate Hamilton and not Grubbs. Freitag's only explanation was that Grubbs "actions just weren't the same as Marvin had." Since Freitag acknowl- edged that Hamilton had never uttered a "curse word or unpleasant word" to him under any circumstances, one must look to other events or circumstances in an effort to ascertain the distinguishing factor . In my judgment, the answer is reflected in the record by the incident which oc- curred only a couple of days prior to the discharge, and which involved a questioning by Marvin Hamilton of Freitag's supervisory authority as related to the Company's longstanding policy of making truckdrivers' assignments based upon seniority. As previously related, Marvin Ham- ilton, on that occasion, advised Freitag that the latter shouldn't have given him (Hamilton) a better run than Lar- ry Miller because Miller was the most senior man and de- served the better run . Freitag responded, "I am the supervi- sor here and I will put it where I want to-any runs I give to the drivers." The Charging Union argues that, on the basis of this incident, Freitag determined to set up the circumstances which would provide him a basis for dicharging Marvin Hamilton. Although there is some basis in the record to sustain this theory, i.e., (1) the assignment of two runs to Bohner although all of the full-time, regular drivers did not have full work assignments (Marvin Hamilton only had two runs assigned to him on August 7), and (2) contrary to his testimony, Freitag had ample time following Marvin Hamilton's leaving of Freitag's office on August 7 to warn him of disciplinary action should he leave the premises since the record shows that Hamilton did not leave imme- diately but rather stopped his car and parked the truck prior to leaving the premises , providing Freitag ample time for him to contact Hamilton and advise him of any con- templated disciplinary action, I believe it sufficient to find, as I do, that Freitag resented Hamilton's questioning of Freitag's supervisory authority in the manner set forth; that he believed such conduct to be a corollary and an exemplification of Marvin Hamilton 's participation in the union or concerted activities of the truckdrivers to which Freitag was unalterably opposed. Thus, I find and con- clude that the discharge was prompted, "at least in part" 41 by his participating in union or concerted activities. had a baby and she was having trouble with and he had taken off early for that. That was a good excuse. I had no objection to that. Ma. Pumiso ' Could the witness be asked to define approximately when these occurrences happened so that we won't have to go over that at a later time? BY Ma. Leoaaea: Q. Yes, please try to tell us as near as you can when this happened. A. Larry, his was in July; Ray's was in May or June ; in August Gil Hensley he took off early. He had to go early to go see his parents. Q. Did he come to you at that time" A. Yes. Q. Did you give him permission" A. Yes Q. Anything else? A. I can't think of any now that I recall. 41 Breaux Mart, Inc., 217 NLRB No. 56 ( 1975), see also N L R. B. v. Great Eastern Color Lithographic Corp, 309 F 2d 352, 355 (C.A. 2, 1962 ), cert. denied 373 U.S. 950 ; N L R.B. v Hanes Hoisery Division, Hanes Corp, 413 F.2d 457, 458 (C.A 4, 1969). I find a lack of substantial evidence in the record to prove the remaining allegation of paragraph 6(e) of the complaint Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By terminating the employment of Marvin P. Hamil- ton because he engaged in union or concerted activities protected by the Act, and by ordering employees to remove all CB-radios from the trucks driven by its employee driv- ers at the Brookville facility, Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating employees concerning their own and other employees' union membership and ac- tivities, by threatening employees with discharge or other reprisals if they became or remained members of the Union, or gave any assistance or support to it, and by promising employees benefits if they refrained from be- coming or remaining members of the Union, or giving any assistance or support to it , Respondent engaged in unfair labor practices within the meaning of Section 8(a)(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 Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against Marvin P. Hamilton in the manner set forth above, I shall recommend that the Respondent be ordered to offer him immediate reinstatement to his former or substantially 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 by reason of the discrimination against him. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent ordered the removal of the CB-radios from its trucks for discriminatory reasons, I shall recommend that Respondent be directed to rescind such order and to allow the employees to install and utilize such radios provided that they secure all necessary licenses and comply with all lawfully promulgated rules and regula- tions pertaining thereto. The serious and pervasive nature of the unfair labor practices committed, including a discriminatory termina- to the effect that "Marvin Hamilton was demoted to a position of employ- ment wherein he earned less wages and was thereby forced by Respondent to refuse the lesser amount of work offered" and will recommend that the complaint be dismissed to that extent. TRUMBULL ASPHALT CO., INC. tion, indicate a hostility to the purposes of the Act. I shall therefore recommend that Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act 42 Upon the basis of the entire record, the findings of fact, the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 43 The Respondent, Trumball Asphalt Co., Inc., Brookville, Indiana, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to his hire or tenure of employment or any term or condition of employment in order to discour- age membership in Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135 affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, or any other labor organiza- tion. (b) Ordering or directing that employees cease installing or utilizing CB-radios in the trucks driven by them, provid- ed that said employees secure all necessary licenses or per- mits pertaining thereto, and otherwise comply with all law- fully promulgated rules and regulations applicable to such installation and use of such radios. (c) Coercively interrogating its employees about their own or other employees' union membership and activities. (d) Threatening employees with discharge, or other eco- nomic reprisals, if they become or remain members of the above-named Union, or continue to engage in activities in support of the above-named Union. (e) Promising employees benefits to dissuade them from 42 Entwistle Manufacturing Company, 23 NLRB 1058 (1940), enfd. as mod- ified 120 F.2d 532 (C.A. 4, 1941)). 03 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. 807 becoming or remaining members of the above-named Union, or engaging in activities in support of the above- named Union. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole Marvin P. Hamilton, in the manner set forth in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agent for examination and copying all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Rescind the order of August 1974 prohibiting the use of CB-radios in the trucks driven by employees at the Brookville facility. (d) Post at its premises in Brookville, Indiana, copies of the attached notice marked "Appendix." 44 Copies of said notice, on forms provided by the Regional Director for Region 25 after being duly signed by Respondent's author- ized representative, shall be posted by it immediately after receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 44 In the event that the Board's Order is enforced by a Judgment of the 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."