O'Connor Industries

CORL CORP Cori Corporation, A Wholly Owned Subsidiary of O'Connor Industries and Edwin L. McCain. Case 25-CA-6831 January 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 29, 1975, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and a supporting brief, and the General Counsel filed an answering 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.2 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, Corl Corporation , A Wholly Owned Subsidiary of O'Con- nor Industries, Bremen , Indiana, its officers , agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. Substitute the following for paragraph 2(a): "(a) Recognize, effective from the date beginning July 29, 1974, and upon request , bargain collectively with the Chauffeurs , Teamsters and Helpers Local Union No. 364, affiliated with International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit herein found appropriate with respect to rates of pay, wages, hours of employ- ment and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement." ' In addition to the findings that Respondent variously violated Sec 8(a)(I) and (3) of the Act, the Administrative Law Judge also found that Respondent engaged in other conduct which interfered with the employees' Sec 7 rights The Administrative Law Judge, however, did not find such additional conduct violative of Sec 8(a)(1) because, although fully litigated, it was not alleged in the complaint General Counsel has filed a motion with the Board to amend the complaint to conform the pleadings with the proof 243 That motion, although unopposed, is hereby denied since our findings of such additional violations would merely be cumulative of conduct found unlawful by the Administrative Law Judge However, the Administrative Law Judge properly relied on this coercive conduct as background evidence establishing Respondent's animus toward the employees' protected, con- certed activities 2 The Administrative Law Judge ordered Respondent to bargain with the Union effective July 16, 1974, the date upon which Respondent received the Union's demand for recognition and bargaining Under the standards set forth in Trading Pori, Inc, 219 NLRB No 76 (1975), however, "an employer's obligation under a bargaining order remedy should commence as of the time the employer has embarked on a clear course of unlawful conduct or has engaged in sufficient unfair labor practices to undermine the union's majority status " In the instant case, the first unfair labor practice violation occurred on July 29, 1974 Accordingly, we shall modify the Ad- ministrative Law Judge's recommended Order to find that the bargaining obligation vested on July 29, 1974, the date of the initial violation More- over, we are precluded by Sec 10(b) of the Act from finding that a bargain- ing obligation existed prior to July 22, 1974, inasmuch as the charge of the instant case was filed on January 22. 1975 in the absence of an allegation in the complaint, Chairman Murphy and Member Penello do not decide whether Respondent refused to bargain in violation of Sec 8(a)(5) of the Act In any event, such a finding would not affect the remedy herein since all of Respondent's unfair labor practices are individually remedied by our adoption of the Administrative Law Judge's recommended Order Member Fanning concurs in the finding that Respondent had an obliga- tion to bargain, but would find that Respondent violated Sec 8(a)(5) of the Act on July 22. 1974, the date on which Respondent's unlawful refusal to bargain could first be considered an unfair labor practice under Sec 10(b) of the Act in his view, under N L R B v Gissel Packing Co. Inc, 395 U S 575 (1969), an employer violates Sec 8(a)(5) of the Act when, in circum- stances such as those presented herein, it refuses to recognize and bargain with a union whose majority status is established by cards, whether or not the unfair labor practices triggering the finding that the employer was under an obligation to bargain occur before, at the same time, or after the actual refusal to bargain DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at South Bend, Indiana, on June 9-12, 1975, pursuant to an amended charge' filed on March 28, 1975,2 by Edwin L. McCain, an individual, a complaint issued on March 28, 1975, and an amendment to the com- plaint issued on May 19, 1975. The amended complaint alleged that Corl Corporation, A Wholly Owned Subsidiary of O'Connor Industries (here- in referred to as the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein referred to as the Act), by interrogating its employ- ees concerning their union membership, activities, and de- sires, and those of other employees; warned its employees it would reduce some employees' working hours and im- pose more onerous working conditions on other employees, and threatened them with loss of benefits or other reprisals if they became or remained members of the Union or gave assistance or support to it, promised its employees promo- tions, retractions of prior reprimands, economic and other benefits or improvements in their terms and conditions of employment if they refrained from becoming or remaining i The original charge was filed on January 22, 1975 2 Respondent's answer admitted the amended charge, which was not in- cluded in the former exhibits, was filed and served on the Respondent. 222 NLRB No. 33 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Union or giving assistance or support to it; gave its employees the impression of prior surveillance of their union activities by informing them the Respondent knew who had instigated the Union ; solicited employees' grievances and promised to remedy them if they refrained from becoming or remaining members of the Union or giv- ing assistance or support to it; discharged employees Den- nis Little, Stephan Lee, Irvin Manning, Dwight Hite, Den- nis Woods, Billy Montague, Sr, Edwin McCain , Robert Neff, and Donald Black and, except for Robert Neff, who was recalled to work on January 27, 1975, refused to rein- state them because of their union or concerted activities; and that because of the unfair labor practices a remedial order requinng the Respondent to recognize and bargain with the Chauffeurs, Teamsters and Helpers Local Union No. 364, a/w International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America (here- in referred to as the Union) was warranted. Respondent in its answer to the complaint filed on Apnl 15, 1975, and its answer to the amendment to the com- plaint, filed on May 22, 1975,3 denied having violated the Act and alleged as an affirmative defense that the layoffs or terminations of the employees were motivated entirely by business needs and were for dust cause. The issues involved are whether the Respondent violated Section 8(a)(1) and (3) of the Act by engaging in unlawful interrogations, warnings, threats, promises , solicitations, or created impressions of surveillance of employees ' union ac- tivities ; discharged the aforementioned nine discriminatees and except for Robert Neff who was recalled to work on January 27, 1975, refused to reinstate them because of their union or concerted activities ; and whether a bargaining order was warranted. The parties at the hearing were afforded full opportunity to introduce relevant evidence, to examine and cross-exam- ine witnesses , to argue orally on the record , and to submit briefs. Upon the entire record in this case and from my obser- vation of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Respondent ° I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Indiana corporation with its principal office and place of business located at Fort Wayne, Indi- ana, has facilities located in various States of the United States including its major plant located at Bremen, Indi- ana, which is the only facility involved in this proceeding, where it is engaged in the manufacture, sale, and distribu- tion of tents, tub and shower units, and related products. During the 12-month period preceding March 28, 1975, a representative period, Respondent at its Bremen plant manufactured, sold, and distributed products valued in ex- cess of $50,000, which products were shipped from that plant directly to places located outside the State of Indi- J The amended answer was further amended at the hearing The Charging Party did not submit a brief ana, and it purchased, transferred, and delivered directly to that plant, goods and materials valued in excess of $50,000 from places located outside the State of Indiana Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Chauffeurs, Teamsters and Helpers Local Union No. 364, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization with- in the meaning of Section 2(5) of the Act. 111 THE UNFAIR LABOR PRACTICES A. The Unlawful Interrogations, Warnings, Threats, Promises, Solicitations, and Impressions of Surveillance The General Counsel presented various witnesses who testified to certain conduct engaged in by Respondent's officials or supervisors including President Charles McFall, Plant Manager Landa Stone, and Dispatcher Glenn Stuntz.5 These incidents which involved the Respondent's truckdnvers, occurred during and after a union organizing campaign and efforts by the employees to bargain directly with the Respondent. David Montague testified that a few days after he had signed a union authorization card which was dated July 3 Dispatcher Stuntz asked him what they hoped to gain by signing those union cards. He informed Stuntz his reasons were forjob security and fringe benefits. This conversation occurred at the Farmers Inn located at Wyant, Indiana. Both Dennis Woods and Dwight Hite stated Dispatcher Stuntz asked them whether they had signed union cards. Woods informed him they had and Hite further stated Stuntz told them if the Union came in they would be the low men on the list and would only get the jobs the other drivers did not want. Woods placed this conversation as occurring about the second week in July, while Hite's rec- ollection was that it occurred in the middle part of August. Robert Neff testified that, about the middle of July, Dis- patcher Stuntz asked him if he thought the Union would go through. Upon replying he thought it would Stuntz in- formed him if it did he would probably lose his own job. Neff further stated that, about a week after a meeting held on August 3 at which President McFall spoke to the em- ployees, Stuntz asked him if he thought McFall's talk had done any good as far as trying to sway drivers away from the Union. Neff's response was he did not think it had. Billy Montague, Sr., stated that, in late August, Dis- patcher Stuntz asked him how they would benefit by the Union. After replying they could get fringe benefits and at Stuntz' request naming some of them Stuntz informed him he thought he could talk to McFall who could satisfy them with this about the Teamsters and he would call Mr. Mc- Fall. 5 Respondent admits , and I find that President McFall, Plant Manager Stone, and Dispatcher Stuntz were supervisors within the meaning of the Act. CORL CORP. Donald Black testified that, about July 12, Dispatcher Stuntz informed him what the guys were doing was not going to work and later that morning asked him if he knew what he was doing by trying to get the Union in. Upon replying he did Stuntz informed him if the Union came in the older drivers would get all the runs and he would not have any trips except locals. Dispatcher Stuntz did not testify 6 and I credit the unde- nied testimony of David Montague, Dennis Woods, Dwight Hite, Robert Neff, Billy Montague, Sr., and Don- ald Black and find that Dispatcher Stuntz coercively inter- rogated David Montague concerning the reasons employ- ees had signed union cards;7 coercively interrogated Dennis Woods and Dwight Hite concerning whether they had signed union cards; threatened Dennis Woods and Dwight Hite that if the Union came in they would only get the jobs other drivers did not want; coercively interrogated Robert Neff concerning the Union and the feelings of other employees about the Union; coercively interrogated Billy Montague, Sr., concerning how the Union would ben- efit the employees; impliedly promised Billy Montague, Sr., that the Company would give fringe benefits to the employees if they did not support the Union; coercively interrogated Donald Black concerning his union activities; threatened Donald Black that if the employees selected the Union to represent them the older drivers would get all the runs and the only trips he would get would be local trips. Irvin Manning testified that, about August 8,1 he had a conversation with President McFall in the breakroom area. McFall asked him whether they had a problem stating he had heard they wanted to go union. Upon informing Mc- Fall the drivers had signed cards and were unhappy with the way the Company was being run and after talking it over for 3 or 4'months had decided they would have to go union to accomplish anything, McFall asked if there was any way they could get the union problem resolved. Mc- Fall suggested if Manning would draw up a contract pro- posal and submit it to the Company they would honor it just like a union contract and said they would like to try to resolve it between the drivers and the Company without the Union. Manning's response was he could not give him an answer but would have to meet with the drivers who would have to decide for themselves because each one of them had signed their own individual card. He told McFall he could not be their spokesman but stated if McFall would give him permission he would put up a notice on the drivers' board about having a meeting at his house that Saturday morning to tell the drivers what he had proposed and they could make their own decision. McFall told him he could put up the notice and they would try to help him in every way to get the problem resolved. Following this conversation Manning posted a notice on the drivers' board in the dispatcher's office about the meet- ing to be held at his home on August 10. 6 No explanation was given to explain why Dispatcher Stuntz, who en- gaged in this conduct and was involved in the discharges of all the discrimi- natees discussed infra and, according to President McFall, was the person that supervised the drivers, did not testify The amended complaint did not allege this incident as a violation The company's logsheets show Manning was on travel status on August 8. 245 President McFall denied meeting with Manning on Au- gust 8, or having made the remarks attributed to him by Manning. According to him, about the week of July 22, he had a conversation with Manning outside the breakroom at which time there was some discussion about the dissatis- faction of the drivers with management and the fact that since the management group had moved to Fort Wayne things had not been well at Bremen. McFall stated that Manning inquired whether he was aware of a proposal which had been submitted to management in April where- upon he informed Manning he was not. McFall stated that during the conversation Manning volunteered he was ba- sically opposed to a union but felt a lot of the younger drivers would be pushing for a union and said as it was going then it did not look too good and wished McFall would get involved and meet some of the people. Manning asked him to attend a drivers' meeting scheduled for Au- gust 3. 1 credit the testimony of Irvin Manning who I find was a more credible witness than President McFall and find that President McFall coercively interrogated Manning con- cerning his union activities and'those of other employees, and solicited the employees' grievances and promised to remedy them by giving them a contract if they would with- draw their support from the Union.' On August 10 a meeting was held at Irvin Manning's home attended by various drivers including Irvin Manning, Stephan Lee, Robert Neff, Dennis Little, Billy Montague, Sr., Edwin McCain, Dwight Hite, Dennis Woods, and Bud Sherry. Manning stated after informing them what Presi- dent McFall had said they decided to withdraw from the Union and by a majority vote decided they would give the Company a vote of confidence and withdraw their petition for a union. Manning stated that, about August 13, he reported to McFall that he had talked to the, drivers and they had decided to give him a vote of confidence and he would honor the proposal they were going to draw up. He told McFall they would give their demands to the Company and see if they could resolve the situation. He also said the men had voted to withdraw from the Teamsters and Edwin McCain was going to get in touch with McCuiston and withdraw the petition for a union and he would let him know when. President McFall did not recall any conversation with Manning on August 13, but stated that on August 17, at the company picnic, Manning informed him the drivers had voted to have the petition dropped and informed him he would like to get together and discuss some problems or something and asked whether he would be available. He informed Manning he had not been officially notified by the National Labor Relations Board and was certainly happy with what he had told him but he could not get together with him for any discussion until after he was officially notified. I credit Manning rather than McFall whose testimony I have previously discredited. A letter dated August 13 obtained by Manning from 'Apart from my observations of the witnesses in discrediting President McFall his testimony was not only vague but was contradicted by his own actions in admittedly granting those employees benefits discussed infra. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President McFall at the drivers' request advised them there would be no reprisals against those persons involved in the union activities. On August 23, the Union,1° after being notified of the drivers' decision, requested that its representation petition be withdrawn and on August 26 the Regional Director ap- proved its request." Edwin McCain and David Montague testified that they had a conversation with President McFall at Hoople's Tav- ern. McCain placed the conversation as occurring in late July or the first part of August while Montague who was uncertain of the date stated it occurred before August 3. McCain's version was that McFall wanted to know what some of the drivers' gripes and problems were that they felt they had to solicit the Union. They mentioned they were not getting the miles like the other fellows as far as teams. McFall informed them it really did not make any differ- ence to him one way or the other whether they had a union or not but he did not feel they needed one. McFall also told them he would like for the Company to be one big happy family that could work those things out. On cross- examination McCain acknowledged McFall never told him he was going to make any changes. David Montague's version was that McFall told them the agreement they had proposed in April 12 12 and the one they were getting was not the one he had approved in Fort Wayne and he did not blame them for being mad because they were not getting what they were entitled to. Montague stated that McFall asked him if he had signed a union card whereupon he told him he had. Montague further testified that McFall said they were going to get an increase and mentioned a life insurance policy, a pension plan, and free uniforms. According to Montague, McFall also said he would like an invitation to the August 3 meeting so he could explain the Company's views dealing with the Union. Under cross-examination Montague admitted he could have volunteered to McFall he had signed a union card rather than being asked by McFall. President McFall acknowledged having a conversation with McCain and Montague at Hoople's Tavern prior to August 3. McFall, without relating what was said, agreed with McCain's version of the conversation. I credit McCain's version of the conversation which was corroborated by President McFall rather than David Montague's. Not only was Montague's version inconsistent with McCain's corroborated testimony but was primarily elicited through leading questions. The credited testimony established that President McFall coercively interrogated McCain and Montague. concerning the employees ' reasons for wanting the Union.13 Stephan Lee testified that about the beginning of August during a telephone conversation which he had initiated 10 According to Union Business Agent McCuiston, the petition was with- drawn as a result of his conversation with Edwin McCain about August 22 11 Pursuant to a Stipulation For Certification Upon Consent Election ap- proved by the Regional Director in Case 25-RC-5753 on August 19, an election had been scheduled for September 7 for a unit involving Res3pondent's full-time truckdrivers at the Bremen facility 1 The drivers had submitted certain proposals to the Company in April 1974. 13 The amended complaint did not allege this incident as a violation. with President McFall with Dispatcher Stuntz' assistance McFall informed him he was going to write a letter to be put in his file stating that written reprimands which he had received would be taken off of his record . McFall also said he had his file along with several others on his desk looking them over for a possible foremanship. to Lee stated afterwards he received a letter from McFall removing previous warnings he had received which per- tained to damaging a vending machine and stopping for coffee. President McFall acknowledged that Lee had called him in August complaining about tardiness reports he had re- ceived while working in the Kingsbury plant and felt his record should be changed. He informed Lee he would take the matter up with Plant Manager Stone and Dispatcher Stuntz. McFall denied offering Lee a foreman's job or writ- ing him a letter. Respondent's records contained a memorandum, dated August 7, by Dispatcher Stuntz and Plant Manager Stone, with a copy to McFall, indicating it had been brought to Stuntz' attention by Lee that he had unjustly received num- erous late notices while working at the Kingsbury ware- house and Lee should not be held accountable because several times his supervisor was late. Respondent's records support McFall's testimony that Lee's complaints dealt with tardiness reports which were removed from his record rather than other warnings he had received. Under these circumstances and absent produc- tion of a letter Lee claimed he received from McFall which McFall denied I do not credit Lee's testimony that the Respondent removed such warnings from his file or that McFall, who I find was a more credible witness than Lee, had implied he was considering him for promotion. Billy Montague, Sr., stated that about the last week in August he had a conversation with President. McFall at the Fort Wayne office. According to Montague he had made the trip at the suggestion of Dispatcher Stuntz who in- formed him McFall wanted to meet one of the drivers and Plant Manager Stone had suggested him. Montague stated that during the conversation McFall said he knew how the union thing got started and who the strong supporters in it were. However, no names were mentioned. McFall in- formed him some things took time and mentioned the re- tirement plan would take about 5 months or more to work out. According to Montague they also talked about uni- forms and the insurance program. President McFall's version was that about a week or so after the petition was dropped Billy Montague , Sr., visited his office in Fort Wayne and after requesting to see the facilities he was given a tour . McFall stated when Mon- tague asked if they had a retirement program in the mill his response was they could not involve themselves in it then, with the union issue involved. Montague also in- quired whether they were out to get the Montagues. I credit the testimony of Billy Montague, Sr., who im- pressed me as a more credible witness rather than McFall who I previously discredited. Having credited Montague's version I find that McFall, by his statements to Montague that he knew how the Union got started and who the 14 Lee stated he had lost the letter he had received from President McFall CORL CORP. 247 strong supporters were, created an impression of prior sur- veillance of the employees' union activities. The amended complaint did not allege such conduct to be a violation. Although McFall mentioned certain benefits to Montague I do not construe Montague's testimony, absent evidence of what was specifically said, to find McFall was promising them those benefits because of the Union. David Montague stated that a few days after the July 13 union meeting Plant Manager Stone called him in to the office and asked him if he had signed a union card. Upon replying he had, Stone asked what they hoped to gain by joining the Union. After telling him job security and fringe benefits Stone said he could give them the same benefits without their having to have union representation. During the conversation Stone informed him the Union could not guarantee their jobs because they could always find an ex- cuse or reasons to terminate them and there was not one of them who was perfect, Examples Stone mentioned were being late in making deliveries or being involved in wrecks. Plant Manager Stone's version was that after receiving a letter from the Union demanding recognition he asked Montague to read it to see whether it referred to the Com- pany or to Don Corl, whereupon Montague told him it was meant for the company.15 According-to Stone, Montague volunteered he had signed a card and gave him the names of all the other drivers who had signed cards. He informed Montague he did not understand it because they had an open door policy and if the drivers did not agree with the foreman or dispatcher they had the right to take it to man- agement and he had not received any response from the drivers other than their everyday bitches concerning driv- ing. Montague mentioned the drivers were discontented and felt they needed a union. Under cross-examination Stone contradicted his direct testimony by stating the only employees Montague had mentioned who had signed cards were Edwin McCain, Billy Montague, Sr , and Irvin Man- ning and he had stopped him from naming the others by telling him he was not interested. I credit Montague, who I find was a more credible wit- ness than Stone whom _I discredit,16 and find that Stone coercively interrogated Montague concerning whether he had signed a union card and what the employees hoped to gain by joining the Union; promised him the company would give them job security and fringe benefits if they refrained from supporting the Union; and impliedly threat- ened him that the company could always find an excuse or reason to terminate them because of their union activi- ties.i7 Irvin Manmng stated that, about July 29, Plant Manager Stone called him into the office and asked him why he had not told him about the drivers signing the union cards and wanting to go union. He told Stone he did not figure he had a right to tell him, that he and the other drivers had signed union cards. 15 David Montague denied Stone had questioned him concerning whether the letter from the Union was for the Company or Don Corl 16 Besides my observations of the witnesses in discrediting Stone, his testi- mony in critical areas was not only contradictory or inconsistent but unsup- ported by other essential company witnesses. 17 Neither the interrogation nor implied threat to discharge employees was alleged in the amended complaint to be a violation Plant Manager Stone acknowledged asking Manning why he did not advise them about what was going on with reference to the Union's petition and its demand for recog- nition: His response was he- did not want management to know everything the drivers were doing. Stone's explana- tion for questioning Manning was because he had filled in for Stuntz who was on vacation about the first 2 weeks in July and was acting in a management position. Based upon Manning's testimony which I credit and Stone's admis- sions, I- find that Stone coercively interrogated Manning concerning his union activities and those of other employ- ees.18 The fact that Manning may have been filling in for an admitted supervisor some weeks earlier would not con- stitute a defense to interrogating him about union activities of himself and other employees when he was not as here still acting in a supervisory capacity. Manning also testified that, about August 15 or 16, Plant Manager Stone called him, to the office and asked him if there was anything he could do to get, him to officially drop the union action. Stone mentioned his own neck was on the line and said if the Union came in he would be fired and if he was going to get fired he might as well get fired for trying to get something from Manning or make him in some way drop the Union. His response was they did not intend to bring the Union in to get anyone fired but did it to get seniority rights and some benefits from the Company the drivers thought they were entitled to. Stone told him he would offer them proposals and get them approved if they could dissolve this. Manning stated during the conversa- tion he informed Stone the drivers had talked and had taken a vote and were thinking about giving the Company and McFall a chance to show in good faith they were going to do the drivers right, but it was not officially cleared with the Union for withdrawal. However, he indicated the men had voted to drop the Union. Stone informed him that, when he got verification from the Union it had been dropped, they would notify McFall. Stone mentioned he was very happy they had, decided to give their support to the Company and McFall and believed they would live up to any contract within reason which they submitted. Pur- suant to Stone's inquiry about what some of the proposals were, Manning mentioned the drivers wanted $5 per drop and 3 weeks' vacation after 5 years and 4 weeks' vacation after 10 years, Stone's response was when it was drawn up they definitely would be very fair with the people stating they believed it definitely could be worked out between them and the Company without the Union. Stone then told him to go ahead and draw up the proposal to the drivers' satisfaction and submit it'to him and he would submit it to McFall. Plant Manager Stone acknowledged having a conversa- tion, with Manning about August 16, but denied having made the statements attributed to him by Manning or that Manning had told him they had voted to withdraw the petition. His version was Manning advised him the men who were soliciting a union wanted to give the Company a vote of confidence and mentioned something about pro- posals but nothing specific. He told Manning to put it in Is The amended complaint did not allege this incident to be a violation of the Act. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing. Stone, referring to the vote of confidence remark, stated if that was the case he would thank him but until he received something official he was going to go by what was on paper. Under cross-examination Stone stated Manning said they had demands they would like to have honored whereupon he told him to put them in writing and that they honored no demands until they had a withdrawal of the union petition for an election. According to Manning another meeting was held by the drivers at his home on August 20 or 21,19 at which time they agreed on certain proposals to be presented to the Company whereupon his wife typed them up. Copies were subsequently given to each driver for his approval20 Manning testified that, after the withdrawal of the peti- tion was approved on August 26, he informed Plant Man- ager Stone it had been withdrawn and he would get the proposals drawn up and submit them to him. Stone's re- sponse was he was very happy and it was a relief off his mind, stating he thought the Company would treat them right and their proposals would be accepted by the Compa- ny. Stone told him he would like to have it as soon as he could. These proposals covered the following 19 items: (1) se- niority, (2) drop pay or downtime, (3) team system, (4) vacation, (5) safety award, (6) uniforms, (7) paid holidays, (8) assignment of tractors and trailers, (9) retirement, (10) loading of trailers, (11) freight papers, (12) insurance on personal belongings, (13) hospitalization, (14) local drivers, (15) work call, (16) downtime due to weather conditions, (17) equipment for trailers, (18) drivers' meetings,21 (19) agreement to be an addition to the employer's handbook rules and regulations. Manning stated that, about August 27, he presented a copy of the drivers' proposals dated August 26 to Plant Manager Stone and informed him he had copies for Presi- dent McFall and Fred Hockert. Stone informed him to give their copies to the receptionist 22 who would send them out in the afternoon mail which he did. Stone looked the proposals over stating they were very reasonable but it would be up to McFall. However, he mentioned he saw a few things he was pretty sure they were going to get in the first meeting with McFall, namely, seniority rights, and $5 drop pay, which he said would show the good faith of the Company when they dropped the Union. Stone also told him they would get 3 weeks' vacation after 5 years and 4 weeks after 10 years, all shippers would be typed with the dealer's name and complete and correct address, and they would get handcarts and 3-foot step ladders for the trailers. Plant Manager Stone testified that the day he received the letter from the National Labor Relations Board that the petition had been withdrawn, Manning came to his office with some sheets of paper which contained requests by the drivers for the Company to review. He referred Manning to the receptionist to get departmental correspon- 19 Plant Manager Stone stated that on August 20 Manning told him they had a meeting at his house which he claimed was the first time he was aware the had elected a group. Manning's recollection was that all the drivers attended the meeting. 21 The names of the committee selected by the drivers and set forth in the proposal were Irvin Manning, Edwin McCain, and Stephan Lee 2 The receptionist did not testify. deuce paper and informed him to put it down and submit it in writing. Stone stated he did not look at it although Manning read some of the things listed. However, he ac- knowledged it was the drivers' August 26 proposals. Ac- cording to Stone, about the last week in August or the first week in September Manning returned with them typed at which time he reviewed them and told Manning he would forward them to Fort Wayne with his comments 23 When Manning advised he was going to send copies he informed him it was his privilege. While Stone stated he thought he went over the demands briefly he denied voicing his com- ments. Manning testified that on September 9 or 10 he informed Stone the drivers were not getting what he had promised them when they showed good faith and accused either him or McFall of lying to them and told him all that had been accomplished was talk. Stone's version was that following the September 7 meet- ing Manning informed him he was not sending the' paper- work to Fort Wayne fast enough or giving them answers fast enough to suit them and stated he was going to get even. I credit the testimony of Manning concerning these con- versations rather than Stone whom I have previously dis- credited and find that Stone solicited the employees' griev- ances from Manning and promised the Company would give them a contract with various benefits including senior- ity, drop pay, paid vacations, and certain work equipment if they withdrew their support from the Union. Stephan Lee testified that about July 13 he and Billy Montague, Sr., had a' conversation with Plant Manager Stone in the cafeteria. Stone told them he would starve the older drivers out and said he would run him and keep him away from home as much as he wanted to if the Union got in. Billy Montague, Sr., substantially corroborated Lee's tes- timony. Plant Manager Stone acknowledged talking to Billy Montague, Sr., and Stephan Lee in the breakroom in late July or early August, in the presence of other persons in- cluding Richard Dixon. Stone's version was that as he was leaving either Montague or Lee questioned him about if they dropped the Union would they have their seniority or something whereupon he told them he really did not care whether they voted for the Union or against the Union. Stone told them the Union normally required seniority in contracts and companies and unions did not specifically write special job qualifications for individuals and they would be lumped into one contract made up by the Com- pany and their representative and they would have to abide by a seniority list. Richard Dixon, a production foreman, stated that last July he was present during a conversation in the lunch- room when Stone talked to drivers regarding a petition they had filed for the Union. However, Dixon, without identifying the drivers, stated the only thing he heard Stone say was it made no difference one way or another about the Union and acknowledged he did not hear what ques- 23 Plant Manager Stone stated he did not submit the proposals to Presi- dent McFall until September 7 which is the date McFall stated he first saw them CORL CORP. 249 tion had prompted the answer. I credit Stephan Lee and Billy Montague, Sr., whose tes- timony I have previously credited rather than Stone, whose version Dixon failed to corroborate, and find that Stone warned Lee and Montague if the Union got in he would starve the older drivers out and would assign them work to keep them away from home. Robert Neff testified that about July 12 or 19 Plant Manager Stone told him he knew that the majority of the drivers had signed cards except possibly one or two and he knew which ones they were. Stone asked him if he thought the Union was going to go through whereupon he replied he was pretty sure it would but he did not care for the Union. Neff also stated the week after the August 3 meet- ing of the drivers discussed infra, Plant Manager Stone asked him if he thought McFall's talk had done any good as far as swaying them from the Union. He informed Stone he did not think it had and indicated he thought the Union would get in. Plant Manager Stone did not relate his versions of these conversations with Neff. I credit Neff's testimony and find Plant Manager Stone coercively interrogated Neff concerning his feelings about the Union and those of other employees 24 and created the impression of prior surveillance of the union activities by informing him he had knowledge about which employees had signed union cards. Billy Montague Sr., stated that, about the middle of July, Plant Manager Stone asked him why he was displeased and had gotten involved in the matter. He informed Stone he was getting less miles and did not feel it was fair and told Stone they were after fringe benefits such as retire- ment and uniforms. During the conversation Stone said if they wanted to discharge any of them they would have plenty of good reasons mentioning, as an example, Irvin Manning's driving record. Stone also told him he knew who had made the approach to the Union but did not identify the person. Plant Manager Stone testified that, about the latter part of July, he had a conversation with Billy Montague, Sr., in the presence of a new employee, Bob Shields 25 His version was he informed Montague they had an open door policy and asked whether he was aware he did not have to join the Union to hold his job. He asked Montague if he had any complaints he had not advised him of and why he was not happy with the Company or using the open door policy to communicate. Montague's response was he did not par- ticularly want a union but felt it offered certain benefits such as job and financial security. He told Montague se- curity was not necessarily a company or a union but was a man's ability to do a job and that a union did not necessar- ily give an employee protection because if employees re- belled against the Company or refused to do the work they could be terminated. I credit Montague's testimony and find that Stone coercivelyyinterrogated Montague concern- ing his union activities and created the impression of 24 The amended complaint did not allege the interrogation by Stone to be unlawful. 25 Shields did not testify. 26 The amended complaint did not allege the interrogation to be unlawful. prior surveillance of the union activities by informing him he knew who had approached the Union. Evidence was also presented concerning the drivers' meetings held by the Company. The first meeting was held on August 3. Dispatcher Stuntz was in charge and Presi- dent McFall and Plant Manager Stone attended. Several drivers gave their versions concerning what transpired. Ste- phan Lee testified President McFall told them if he did not have the union thing hanging over his head he could prob- ably do a lot better for them and asked them for a vote of confidence. Lee stated McFall mentioned future plans about life insurance, retirement, and uniforms but did not testify what he said. Dennis Wood's recollection was that McFall told them he could do a lot more for the Company if the Union was not involved. McFall mentioned an insurance program and asked the drivers for a vote of confidence rather than bringing in the Union. Robert Neff stated McFall asked them to give him a vote of confidence and said he could do more things for the drivers without the Union hanging over him and that things in general would be better for the drivers if they did not have the Union. McFall mentioned his word was good and they could ask Manning to back it up. McFall said he would approve their proposals to any extent within reason. Dennis Little testified McFall told them he would not advise them to vote for or against the Union but said they would be better if they would give the Company a chance. McFall also mentioned giving a vote of confidence. McFall said he would like the drivers to look neat and they were working on a retirement plan and mentioned something about insurance. Edwin McCain stated McFall told him they really did not need a union and asked for a vote of confidence. Mc- Fall mentioned insurance and a pension program they had been working on several months and said they would be available at a later date. McCain stated McFall said if they got a union he would have to negotiate with them but felt he could negotiate with the drivers better. Both Little and McCain denied that McFall promised them anything at the meeting. President McFall's version was that employees ad- dressed certain questions to him concerning their benefits which he answered. He stated that Billy Montague, Sr., asked about the pension program whereupon he informed them they had discussed a profit-sharing pension for many years at different meetings but did not have a present poli- cy and with the union thing pending he did not feel it would be appropriate to have lengthy discussions on pen- sion programs and he could not say they would have a pension program. When questions were raised about uni- forms his response was they were still looking into different possibilities but before they made a decision everyone would get a chance to vote. When asked when the insur- ance program would be implemented he informed them it was completed but he did not feel under the circumstances they could discuss specifically what was involved. McFall stated he informed them pursuant to a question he was not antiunion and it was a decision they were going to have to 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make and there were many plus factors to a union. McFall denied making any promises to the employees. Plant Manager Stone's version was that McFall asked the drivers for their comments or questions on general con- ditions at the Company whereupon certain questions were raised by the drivers concerning security, retirement, and whether there would be reprisals. Stone denied any prom- ises were made to them but acknowledged he was not sure of everything said. Under cross-examination Stone stated that McFall related they did not necessarily want a union and had an open door policy and he would like for them to consider continuing along those lines. Stephan Lee, Dennis Woods, Robert Neff, Dennis Little, and Edwin McCain substantially corroborated each other's testimony which I credit, rather than McFall and Stone who have previously been discredited, and find that Mc- Fall promised them the Company could do more for them if they refrained from supporting the Union and asked them for a vote of confidence 27 On September 7 another dnvers' meeting was held at which time President McFall, who attended, went over the August 26 proposals which they had submitted to the Com- pany. According to McFall, whose version was substantially the same as Irvin Manning's version, he informed them his responses to their proposals were as follows: agreed that seniority should prevail; agreed to drop pay or downtime with some modification; promised to review the team sys- tem; rejected the vacation proposal; thought the safety awards were a good idea; informed them the uniform pro- posal was being worked on; rejected the paid holidays pro- posal; informed them the assignment of tractors and trail- ers would be at the dispatchers' discretion; informed them they were working on retirement plans; agreed that the trailer would not be top loaded when hazardous; agreed to the proposal on freight papers which they were already doing; took under advisement the proposal for insurance on personal belongings; rejected hospitalization insurance; felt they should not have local drivers; promised to work on the work call proposal; agreed something could be done to get handcarts and stepladders for trailers; and agreed that drivers would be paid for attending meetings called by the Company. President McFall further acknowledged informing the drivers that the dropping of the union petition was a' vote of confidence to the Company. B. The Nine Discriminatees The nine discriminatees, Dennis Little, Donald Black, Dwight Hite, Dennis Woods, Billy Montague, Sr., Stephan Lee, Robert Neff, Edwin McCain, and Irvin Manning were all employed by the Respondent as truckdrivers, and were discharged on various dates during the period from about July 29 to December 12. Dennis Little was employed from June 5 to about Au- gust 921 He did not participate in any union activities and 27 Although certain benefits such as insurance, retirement, and uniforms were discussed the evidence does not sufficiently establish those benefits were specifically promised them in the meeting at the time he was hired he had informed Dispatcher Stuntz about a suit which he had pending against the Union. According to Little on August 10, after attending the meeting of the drivers held at Irvin 'Manning's home, he went to the plant to check with Dispatcher Stuntz about Sunday night deliveries. Stuntz informed him there was not enough work and since he was the bottom man he was being laid off but he would be recalled as quick as work picked up since he had been a good driver who had never given him any problems.29 While Little stated he signed a layoff slip to that effect he did not receive a copy. Little acknowledged the layoff appeared reasonable as other drivers had complained about their work being cut down. That same day, Little stated, when he informed Irvin Manning about his layoff Manning contacted Plant Man- ager Stone, who then offered him a job in the warehouse which he refused. Little's reason for refusing the job was because Stone would not promise him he could go back on the road. Manning stated Stone informed Little he saw no reasons why he should not take the warehouse job and be getting paid while waiting for an opening on the truck and that he might be able to use him to fill in on local runs if they needed a driver. Plant Manager Stone testified' Little was discharged on August 9, because of his refusal to accept a job offered him in the warehouse. According to him business was slow and they had to cut back on the number of drivers. Stone fur- ther stated that, after discussing the matter with Manning on August 12, both of them talked to Little who again refused to accept the job offered. Respondent's records show the reasons Little was dis- charged on August 9 was because of a lack of loads and his refusals to accept other jobs offered. Little testified subse- quent to his discharge upon learning he had more seniority than another driver, Dennis Woods; who had not been laid off,30 he had conversations with President McFall, Plant Manager Stone, and Dispatcher Stuntz concerning his job. McFall informed he would review his case with Stone but he could see no' reason with his experience why he should not be working. Little stated, upon mentioning to Stuntz and Stone that Dennis Woods had less seniority, Stone informed him he was also going to lay Woods off.31 Donald Black was employed from June 12 to July 29. He testified that on July 29, Dispatcher Stuntz informed him he was being laid off for lack of work 32 However, after seeing advertisements in the newspapers by the Respon- dent advertising for over-the-road drivers 33 he called Stuntz and asked him what his chances were of going back 28 The parties stipulated those were the dates of his employment. 29 Respondent's records, dated August 7, concerning a mileage rate in- crease for Little reflect he was doing a good job 30 Dennis Woods, another discriminatee, was hired on June 11 31 Dennis Woods was terminated on September 14. 32 Black acknowledged there appeared to be a lack of work and he was the lowest driver in seniority 33 The parties stipulated in September and October the Respondent had placed a number of newspaper advertisements in three newspapers advertis- ing for over-the-road semi-truckdnvers for the Bremen facility. The parties stipulated three employees were hired in September, another employee was rehired in September, and one employee was hired in October. According to the Respondent, at least some of them were replacements for the drivers discharged. CORL CORP. to work. Stuntz's response was "I would not hold my breath." After telling Stuntz he had seen the newspaper ads for drivers and mentioned Stuntz then had work available, Stuntz gave as the reason for his layoff- was because he did not have a telephone. Upon telling Stuntz he had a tele- phone and would give him his number, Stuntz' response was he would not need it. Black acknowledged that while working for the Compa- ny he did not have a telephone and although Stuntz had previously told him it was company policy for all drivers to have telephones he had never warned him he would be terminated for not having one. According to Black at the time he started work his telephone had been disconnected and although Stuntz told him he should have it reconnect- ed Stuntz never checked with him to see if it had been reconnected. Respondent's termination record dated July 29 34 reflects the reasons for Black's termination were lack of work and, because he did not have a telephone, every time they want- ed him they had to go to his house. Plant Manager Stone acknowledged Stuntz had dis- charged Black-,However, prior to Black's discharge Stuntz had reviewed it with him for the purpose of finding out whether they still needed the number of drivers due to the amount of business, and it was their decision. they should cut back. Foreman Danny McGowan testified on three or four occasions in June or July Dispatcher Stuntz had sent him to Black's home to inform him his assignments had been changed. However, on those occasions he stated he was not able to locate Black.35 Black denied anyone ever came to his house from the Company concerning his assignments. Dwight Hite was employed from October 9, 1973, to September 14, and Dennis Woods from June -11 to Septem- ber 14. Both. Hite and Woods, who drove together as a team, were discharged- by Dispatcher Stuntz on September 14. According to Woods, Stuntz informed them the reason they were terminated was because Plant Manager Stone had followed them into Plymouth the previous night at speeds up to 80 miles an hour-and could not catch up with them. They denied they had been driving 80 miles an hour. Plant Manager Stone testified that Hite and Woods were discharged for violating a company policy in effect since 1973 which prohibited using company vehicles for personal transportation. Stone stated the,previous night after Hite and Woods had returned from a trip Foreman McGowan had contacted him at home and informed him Hite and Woods, accompanied by another driver Ronald Hite, were leaving the plant in their tractor. After picking up Mc- Gowan in his automobile Stone stated they caught up with the tractor outside Bremen and followed it to Plymouth at speeds up to 70 and 75 miles per hour. They observed the tractor pass by the Larry Chase Leasing Company (herein referred to as Chase Leasing 36 from which the Respondent leased its vehicles and has them serviced and repaired) and 34 Black denied he had ever seen a copy of the termination notice before. 35 No evidence was offered to show whether Black was informed of Fore- man McGowan's attempts to locate him 36 Chase Leasing is located at Plymouth. 251 proceed into Plymouth where the occupants of the tractor obtained an automobile before bringing the tractor back to Chase Leasing. A work order was left in the tractor for Chase Leasing not to return the vehicle after service. Fore- man McGowan substantially corroborated Stone's testimo- ny concerning the incident. Plant Manager Stone further testified Chase Leasing's night supervisor informed him Hite and Woods had been using the tractor for transportation and in his opinion most of the things which they brought the tractor in for should have been performed at the time of the regular service.37 Plant Manager Stone stated he knew Woods and Hite had been taking their tractor to Chase Leasing about every trip and he had been observing the Respondent's parking lot for 2 weeks prior to their terminations. According to him it was the Company's policy,for the drivers to deliver their tractors to Chase Leasing for service who in turn pro- vided transportation for them to return to their own facility and Chase Leasing would deliver the tractor back to the Company. If no drivers were available Chase Leasing would also pick up the tractors. Hite and Woods admitted that accompanied by driver Ronald Hite they took the tractor to Plymouth where they lived to pick up an automobile for transportation home from Chase Leasing before returning the tractor to Chase Leasing, where they left it to be serviced or repaired. How- ever, both Hite and Woods testified prior to their termina- tions they had been taking the tractor to Chase Leasing for service or repairs and on occasions on weekends they would leave it overnight and pick it up on Sunday. Al- though they testified Stuntz had told them they were not to use the tractor except for. company business he had told them it was all right to take it to Chase Leasing if some- thing was wrong. According to Hite both Stuntz and Stone knew they were taking the tractor to Chase Leasing- for service. While Woods claimed on that occasion he was only driving,60 to 65 miles per hour, Hite was asleep and did not know how fast they were going. Respondent's termination records show the reasons for their discharges were because they had driven the company truck home or to Plymouth every night or regularly.3 Foreman McGowan testified a month or so before the incident and the weeks following he had told Hite and Woods the tractor was only to be used for company busi- ness. According to McGowan they were taking the tractor to Chase Leasing about every night and he was supposed to keep an eye on them. Both Hite and Woods denied that they had ever received any warnings. Stone stated that McGowan had informed him on one occasion he had told Hite and Woods not to use the tractor whereupon they said they were not going to get their wives out of bed. McGowan said this occurred one morning about 3 a.m. but he did not recall when. Woods denied making such statement. I credit the testimony of Hite and Woods rather than McGowan who exaggerated his testi- mony. Billy Montague, Sr., was employed from November 2, 37 The night supervisor did not testify 38 Woods and Hite denied receiving copies of their termination notices 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1970, to May 10, 1971, and from July 19, 1971, to Septem- ber 27. He was discharged on September 27 by Dispatcher Stuntz who informed him the reason was for breaking com- pany policy by taking his truck home with him. Montague denied having received any prior warnings. The previous day on a return trip from New York Mon- tague had parked his truck at a filling station near his home where his wife picked him up and took him home at which time he cleaned up and had dinner. Montague stated he called Foreman McGowan, and informed him he want- ed to clean up, have lunch at home and relax a moment, and asked McGowan whether he needed his trailer to load. McGowan's response was he would like to have the trailer but it was fine as long as he got in a little bit before quitting time. After spending a couple of hours at home Montague stated he arrived at the plant about 9 p.m. Foreman McGowan's version was that Montague called him from his home about 8 p.m. and informed him he was going to eat, get some sleep, and clean up before he came over. When he told Montague he needed his trailer to load Montague's response was he would get over as soon as he could. According to McGowan Montague did not arrive until about midnight at which time a dispute arose between them over the way the trailer had been loaded and Mon- tague asked him to reload it. McGowan stated when he refused Montague told him he was going to make a report on him and get his job 39 Plant Manager Stone, while acknowledging that Stuntz had discharged Montague and that he was only acquainted with the discharge after it occurred, testified Montague was discharged for violating company policy by using a compa- ny vehicle for personal transportation or taking a vehicle home with him. Stone stated the circumstances leading up to Montague's discharge besides the September 26 incident included another incident which occurred within the previ- ous 2-week period when Montague, who had been denied a request for a week off to attend church camp, had parked his truck while on a trip to attend a church gathering and brought the vehicle back late, causing them to lose a load40 Respondent's termination record shows the following reasons for Montague's discharge: "Bill did not agree to co Policy, and would drive the co. truck home on his way in from runs." Montague testified that on prior occasions, when en route past his home which was located at Bourbon about 10 miles south of Bremen, he had stopped by his home after parking his truck at the service station to clean up, eat and relax, and had informed Plant Manager Stone, Dis- patcher Stuntz, and Foreman McGowan, none of whom objected. According to Montague, Stone had' informed him he had no objection as long as the truck was in so it could be loaded that same evening. Stone admitted on prior occasions to having given Mon- 39 Montague acknowledged having an argument with McGowan and he had informed him he thought he would report him to Stuntz However, he did not report him 40 Montague, Sr., whose testimony was corroborated by his wife Rose- mary, acknowledged while en route home from a trip to Anderson, Indiana, where he had unloaded his truck his son had met him and driven him to Hartford City to a church meeting where he had dinner with his family. tague as well as other drivers permission to take their trucks home for meals, if en route past their homes, but stated it was not a blanket permission.41 Montague testified that on September 30 after President McFall at his request had promised to look into his dis- charge he met with Dispatcher Stuntz and Sales Represen- tative Davis at which time he informed Stuntz he was mis- informed about his having taken his truck home. Stuntz then told him the reason he was discharged was because of his bad attitude and mentioned he had always been beefing about something although they had given him a new truck and trailer and allowed him to be in a parade. Stuntz also mentioned Montague had remarked that the drivers had to be in the cold to do their paperwork because an old desk had been moved from the dispatcher's office to the ware- house.42 Montague denied he had ever complained to man- agement about it. Stephan Lee was employed by the Respondent from Au- gust 2, 1971, to April 12, 1973,43 and from December 10, 1973, to September 13. According to both Lee and Irvin Manning whom I cred- it, during a conversation with President McFall at Hoople's Tavern after the September 7 drivers' meeting President McFall mentioned Lee and his dad were strong union members or supporters. Lee testified that he was discharged on September 13 by Dispatcher Stuntz who informed him the reason was be- cause of his attitude. Stuntz refused Lee's request for an explanation. Lee stated that later that day upon asking Plant Manag- er Stone for his job back Stone's response was it was not up to him and Stuntz had already made that decision. When he asked Stone if he knew the reason he was fired Stone's reply was Lee knew the reason which he denied. Stone then offered him the choice of quitting or being fired and in- formed him if he was fired it would look bad on his record. Plant Manager Stone denied having a conversation with Lee at the time of the discharge or making the statements attributed to him by Lee 44 Stone stated Lee was discharged 45 because of a note he had left Dispatcher Stuntz which would have prompted his third warning and under company policy would have re- sulted in his termination.46 Lee's previous two warnings were for kicking the vending machine after losing money in it and parking his truck two blocks from the office and taking a 45-minute break. Respondent's records do not show the reason Lee was terminated. The body of the note which Lee acknowledged he had left for Stuntz a week or two before his discharge was 41 Under company policy trucks are to be left at the plant at all times when not in use 42 The desk was moved about a week or so before his discharge 43 Although Lee was terminated on that occasion he was not given a reason. 44I credit Lee's testimony instead of Stone whom I have previously dis- credited 45 Plant Manager Stone first stated that Lee was discharged then claimed heuit after being given an option of either quitting or being fired The employee handbook provides in pertinent part that an employee will be discharged if his behavior is still unsatisfactory after at least two warnings. CORL CORP. 253 worded as follows: 47 I wish you would keep those clowns 48 on nights out of my truck. I'll start taking the keys home with me because the next time I have to fumble around in the mud and dark to reset that kill switch I bet I'll call Chase and have them do it. Lee denied either Stone or Stuntz ever told him he was being discharged because of this note. Robert Neff was employed by the Respondent from May 10 to December 12 and from January 23, 1975, until March 29, 1975. Edwin McCain was employed from April 6, 1972, to December 12 and was rehired about April 15, 1975, and was still employed at the time of the hearing. Neff testified he was discharged on December 12 by Dis- patcher Stuntz who informed him the reasons were because of his cooperation with others, a bad attitude, and certain drivers who drove with him did not make any money be- cause he did not go fast enough. Respondent's termination record dated December 12 shows Neff was discharged "due to lack of work and coop- eration, had a hard time getting along with his fellow work- ers when running a team." Neff denied he had received any prior warnings. Respondent's record dated June 26 relating to a change in pay rates reflects Neff's conduct was rated by both Dis- patcher Stuntz and Plant Manager Stone as being excel- lent. Neff testified that in late December Stone informed him he would review his case with Dispatcher Stuntz to see if Stuntz had made a mistake. Stone also informed him he should get together with Stuntz to settle their conditions whereupon Stuntz told him he would be the boss and Neff would have to follow his way. Neff stated he also contacted President McFall who informed him he would review his case with Stone. Afterwards, both McFall and Stone in- formed him he would be rehired as soon as the work load picked up. While McFall informed Neff he would be rein- stated fully, both Stone and Stuntz advised him McFall did not set his conditions of return which would be handled at the local level. Neither Stone nor McFall denied having such conversations with Neff, whose testimony I credit. Neff was rehired on January 23, 1975. According to his undisputed testimony Stone informed him he would oper- ate under a certain time limit and if he did not have any trouble in that time and earned it back he would be rein- stated with full seniority rights.49 Neff voluntarily quit his job in March 1975 in order to take ajob closer home. McCain testified he was discharged on December I1 by Dispatcher Stuntz, who informed him the reasons were be- cause he had received a couple of tickets, ruined a trailer tire, and stolen time from the company. McCain denied it and informed Stuntz that Mark Groves was driving the truck when the tire was ruined, the one ticket he had gotten was for faulty equipment while Groves had gotten this tick- et for speeding, and stated it was an error on his part for not putting down the lunch hour on the occasion he worked in the warehouse 50 McCain's termination slip dated December 12 reflects he was discharged because "His attitude came and left over a Period of time Going from Fair to Poor. Said that he want- ed us to lay off other Drivers, and also that he wouldn't make a run that he didn't like." McCain denied having received any prior warnings. McCain testified that after Stuntz had discharged him he and Neff talked to Stone at which time Stone informed him the reason for his discharge was because his attitude had gotten bad and they were having a slowdown of work and he and another driver were being terminated. Upon asking Stone what he meant by a bad attitude Stone said he had made comments and jokes about uniforms at drivers' meet- ings.51 Pursuant to his inquiries whether he would be given any reconsideration Stone informed him later they might review it and reconsider. However, when he asked Stuntz, Stuntz informed him there would not be any chance for reconsideration or rehiring him. McCain returned to work about April 15, 1975. Plant Manager Stone's version was he covered the rea- sons for the cutback and why McCain was selected. Mc- Cain disputed the tire incident by telling him Groves was driving when the tire went flat but did not dispute having falsified the timecard or getting a ticket. According to Stone and Neff, McCain agreed he should have gotten rep- rimands on some of these things but should not have been terminated. Plant Manager Stone, who acknowledged Stuntz had ter- minated Neff and McCain, testified the reasons they were discharged was because of a reduction in the number of truckdrivers resulting from a decline in business 52 and they were selected because of their records. According to Stone he had informed Stuntz business was declining and for Stuntz to review the drivers and submit what he needed although he did not tell Stuntz the number of drivers to cut. A memorandum from Stuntz to Stone dated Decem- ber 9 reflected he felt it was necessary to discharge two drivers for the winter months and mentioned McCain was selected for the following reasons: (1) I had to tell him that I would be the dispatcher and that he would be the driver. (2) Disobedience at the last safety meeting. (3) November 18 he broke three units (17601) that were on his load. (4) Broke the cords on a new tire by running it flat. (5) Got a ticket for driving with his lights off and charged it to the company. (6) Broke a 636 bringing it back from B & H Supply because he did not strap it off. (7) Falsifying pay record of half hour on December 5. Irvin Manning was employed from June 11, 1968, until September 13. He stated he was discharged by Dispatcher Stuntz on September 13. The reason Stuntz gave was be- cause he could not certify his driving. so According to McCain, who had worked in the warehouse shortly before his discharge, it was the practice of the drivers working there to mark down the time they worked and it was his understanding the lunch hour was automaticall deducted y 47 The copy of the note introduced into evidence was not clearly legible 51 Stone stated about September 15 he had observed McCain joking at a o nits face . meeting. McCain acknowledged he had joked about things at drivers' meet- The word omitted was a seven letter curse word ings and had made comments about uniforms 49 According to Neff there was never a final word on his seniority 2 Both Neff and McCain acknowledged work was slack. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mannmg denied he had ever been told he was no longer certified as a driver and Respondent's records show his driving had been certified by Stuntz in April under the Motor Carrier Safety Regulations. However, upon then asking Plant Manager Stone why he was being terminated Stone informed him it was because of his attitude towards the Company and told him he was always coming into the office with too many problems concerning the drivers and things with the Company he felt they did not have to come in with and was getting into too many arguments over the settlement of problems arising with the drivers. While the termination slip Manning was given at his in- sistence did not contain any reason for his discharge Respondent's records contained a termination slip dated August 13 which reflected Manning was terminated for the reason "conduct very poor." Stone acknowledged this rea- son was added subsequently for his own files. Plant Manager Stone's version was when Manning asked him why he had been terminated he informed him the rea- sons were because his work habits had declined and of his attitude. I credit Manning's version of their conversation rather than Stone whom I have previously discredited. Stone, who testified he had reviewed Manning's dis- charge with Dispatcher Stuntz prior to his discharge, stated Manning was discharged for not cooperating and fulfilling his job requirements. His explanation was that about Sep- tember 10 Stuntz had informed him Manning had gotten him out of bed at 4 a.m. concerning authorization to make a trip to Ohio when he had 7-1/2 hours left on his log which would have been sufficient to make the trip. Accord- ing to Stone, Manning had previously threatened him about getting even and he informed Stuntz that might be one of his ways.53 Stone stated that that day 54 upon asking Manning why he did not make the run his response was drivers knew when they were tired or when they should or should not make runs. Manning told him he was out of hours and would have had to sleep in his tractor which was the reason he did not make the delivery. When Manning was asked whether he had gotten his rest the night before he informed him in so many words it was none of his business. Accord- ing to Stone he had to interrupt the conversation to hold a foremen's meeting and when Manning said he had not made his point Stone opened the door and asked him to leave, whereupon Manning, in front of several supervisors, another truckdriver, and his receptionist, none of whom testified, repeated his threat to get even with the Company. Stone stated while meeting with the foremen Manning called him saying he wanted to continue the discussion whereupon he informed him he did not wish to until Man- ning had time to cool off. After the meeting he talked to Manning who had calmed down, whereupon Manning told him he wanted to go over things he felt the drivers should be getting but were not getting on the proposals. 53 The alleged threat was not further defined 54 A file memorandum dated September 11 prepared by Stone indicates this incident occurred on August 10 and further stated that Manning's atti- tude was such that the Company was not being fair with the drivers or giving them the benefits discussed in the previous Saturday meeting Stone stated that Manning's threat to him and his insub- ordinate attitude were factors taken into consideration in discharging him. Manning acknowledged he had contacted Stuntz at home after his assignment had been switched and told him he would not have had enough hours to complete the trip assigned. After Stuntz first'told him to go ahead and make the run Stuntz contacted him before leaving and told him not to but to go home. Manning testified when Stone asked him what had happened he informed Stone he would not stand for a ticket for running illegally when he had told the dispatcher he was out of hours. Stone's response was he would have made the run.55 I credit Manning's version. Stone stated that that same week Manning left on a run at 3 a.m. or before for a 7 a.m. delivery. The customer 56 called at 9 a.m. stating he had to shut down his line be- cause the delivery had not been made. However, the deliv- ery was made around noon. - Stone stated that, when he asked Manning why on that occasion he was able to sleep in his cab when earlier he had stated he could not, Manning became hostile. Stone stated that he informed Manning he would have to start filling his job requirements and cooperating or pos- sibly disciplinary action would be taken against him. Stone testified he informed Stuntz if the matter, was not resolved he personally would terminate Manning the next time he blew his top at him. Stone testified that in May when Manning had refused to run as a team he had in- formed Manning he was insubordinate and if he refused when scheduled he would have to terminate him. Manning denied he had received any warnings prior to his discharge and I credit his denials rather than Stone for reasons previously stated. Manning testified that the day after his discharge when he asked McFall about his termination McFall informed him he was going to stand behind Stone and told him he had a poor attitude towards the Company and he was get- ting greedy. Upon asking what he meant McFall told him because of a statement he had made in a September 7 meeting at which time he had asked why drivers from other plants were,driving up and getting molds used to make bathtubs when they had drivers and trucks there which could have been used.57 McFall's version was that he told Manning, who had already been terminated, he was very, very disappointed because they had known each other a long time and he had been with the Company for several years. Although he of- fered to talk to Manning after the drivers' meeting, when it was over Manning said he did not have anything to dis- cuss. Upon being confronted with his affidavit McFall ac- knowledged making a statement in it that he had told Manning he was disappointed in him, and he had a bad attitude as reported to him a few days before by Stone. 55 According to Stone the drivers work an 8-hour log whereby they are allowed to drive 70 hours a week maximum Prior to 1974 the drivers had been driving more hours 56 The customer was not identified. 57 Manning stated that during the drivers' meeting held on September 7 he had questioned McFall about this. CORL CORP. C. The Union's Majority Status and its Demand for Recognition and Bargaining The amended complaint alleged, Respondent admits, and I find, that the following unit constitutes an appropri- ate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time truck driver employees of the Respon- dent at its Bremen, Indiana facility, exclusive of all production and maintenance employees, all office- clerical employees, all professional employees, and all guards and supervisors as defined in the Act. The Union by letter dated July 15 notified the Respon- dent, which received it on July 16, that it represented a majority of the employees in the above unit for the purpos- es of collective bargaining and requested recognition and bargaining. Respondent by letter dated July 17 informed the Union its letter had been referred to its attorney for the necessary attention. The parties stipulated at the time the Union demanded recognition the Respondent employed the following 13 over-the-road drivers in the bargaining unit sought: Don- ald Black, Dwight Hite, Stephan Lee, Dennis Little, Irvin Manning, Edwin McCain, Billy Montague, Sr., Robert Neff, Dennis Woods, Charles Cherry, Ronald Hite, David Montague, and Robert Shields. Signed union authorization cards were received in evi- dence for 10 of those employees, namely, David Montague, Irvin Manning, Stephan Lee, Dennis Woods, Robert Neff, Billy Montague, Sr., Edwin McCain, Dwight Hite, Donald Black, and Ronald Hite. The cards of David Montague, Stephan Lee, Billy Montague, Sr., and Edwin McCain were dated July 3; the cards of Robert Neff, Dwight Hite, Ron- ald Hite, Dennis Woods, and Donald Black were dated July 9; and Manning's card was dated July 8. The Union's business agent, McCuiston, testified he received the cards at the union meeting held on July 13. Although the em- ployees did not specifically identify their individual cards, they all testified, except for Ronald Hite who did not testi- fy, they had signed such cards which were received in evi- dence without objection. Therefore, I find a majority of the 13 employees in the bargaining unit had designed the Union as their representative for the purpose of collective bargaining.58 The Respondent has never recognized or bar- gained with the Union as the representative of its drivers. 'D. Analysis and Conclusions The General Counsel contends, contrary to the Respondent's denials and its contentions that the discnmi- natees were laid off or terminated because of business needs and for cause, that the Respondent violated Section 8(a)(1) and (3) of the Act 59 by unlawfully interrogating, 58 The authorization cards authorized the Union to act as their collective- bargaining agent in all matters pertaining to rates of pay, wages, hours of employment, and other conditions and terms of employment. Sec. 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act . Sec. 8(a)(3) of the Act provides in pertinent part "It shall be an unfair labor practice for an employer . by discrimi- 255 warning, threatening, promising, and soliciting employees with respect to their union activities and creating impres- sions of surveillance of their union activities; by discrimi- natorily discharging Dennis Little, Stephan Lee, Irvin Manning, Dwight Hite, Dennis Woods, Billy Montague, Sr., Edwin McCain, Robert Neff, and Donald Black and, except for Robert Neff who was recalled to work on Janu- ary 27, 1975, refused to reinstate them because of their union or concerted activities ; and that a bargaining order was warranted. Based upon the foregoing evidence I have found that Dispatcher Stuntz about the middle of August 60 coercively interrogated Dennis Woods and Dwight Hite concerning whether they had signed authorization cards; about the middle of August threatened Dennis Woods and Dwight Hite that if the Umon came in they would only get the jobs other drivers did not want; about August 10 coercively in- terrogated Robert Neff concerning the feelings of other employees about the Umon; about late August coercively interrogated Billy Montague, Sr., concerning how the Union would benefit the employees; and about late August impliedly promised Billy Montague, Sr., that the Company would give fringe benefits to those employees if they did not support the Union. President McFall about August 8 coercively interrogated Irvin Manning concerning his union activities and those of other employees; about Au- gust 8 solicited the employees' grievances from Irvin Man- ning and promised to remedy them by giving them a con- tract if they would withdraw their support from the Union; and on August 3 promised the drivers at a meeting that the Company could do more for them if they refrained from supporting the Union. Plant Manager Stone on August 16 or 17 solicited the employees' grievances from Irvin Man- ning and on August 27 promised the Company would give them a contract with various benefits including seniority, drop pay, paid vacations, and certain work equipment for the trailers if they withdrew their support from the Union. I hereby find such conduct interfered with , restrained, and coerced the Respondent's employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. The findings further established that Dispatcher Stuntz about the middle of July coercively interrogated Robert Neff concerning the Union; about July 12 coercively inter- rogated Donald Black concerning his union activities; about July 12 threatened Donald Black that if the employ- ees selected the Umon to represent them the older drivers would get all the runs and the only trips he would get would be local trips; and about July 6, at Wyont, Indiana, coercively interrogated David Montague concerning the reasons employees had signed union cards. Plant Manager Stone about July 16 promised David Montague that the Company would give them job security and fringe benefits if they refrained from supporting the Union; about July 13 warned Billy Montague, Sr., and Stephan Lee if the Union got in he would starve the older drivers out and would nation in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation . 60 1 credit Dwight Hite's testimony concerning the approximate date which was undenied by Dispatcher Stuntz 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assign them work to keep them away from home; about July 12 or 19 created the impression of prior surveillance of union activities by informing Robert Neff he had knowl- edge about which employees had signed union cards; about the middle of July created the impression of prior surveillance of union activities by informing Billy Mon- tague, Sr., he knew who had approached the Union; about July 16 coercively interrogated David Montague concern- ing whether he had signed a union card and what the em- ployees hoped to gain by joining the Union ; about July 16 impliedly threatened David Montague the Company could always find an excuse or reason to terminate them because of their union activities ; about July 29 coercively interro- gated Irvin Manning concerning his union activities and those of other employees ; about July 12 or 19 coercively interrogated Robert Neff concerning his feelings about the Union; about August 10 coercively interrogated Robert Neff concerning the feelings of other employees about the Union; and about the middle of July coercively interrogat- ed Billy Montague, Sr., concerning his union activities. President McFall in late July or the first part of August coercively interrogated Edwin McCain and David Mon- tague at Hoople's Tavern concerning the employees' rea- sons for wanting a union; about the last week in August created an impression of prior surveillance of union activi- ties by informing Billy Montague, Sr., that he knew how the Union got started and who the strong supporters were. Since these additional findings of unlawful conduct were not based upon conduct alleged in the amended complaint to be unlawful and no attempt was made to amend the amended complaint or were barred by Section 10(b) of the Act 61 no specific findings of a violation will be made con- cerning such conduct. However, such evidence has been considered for the purposes of determining union animus, company knowledge of employees' union activities, wheth- er the discriminatees were unlawfully discharged or denied reinstatement, and whether a bargaining order was war- ranted. The next issue discussed is whether the nine discrimina- tees were discriminatorily discharged and denied reinstate- ment because of their union or protected concerted activi- ties. It is well established that the presence of a valid grounds for discharging an employee does not legalize a dismissal which is due to a desire to discourage union activity. Borek Motor Sales Inc. v. N.L.R.B.., 425 F.2d 677 (C.A. 7, 1970), cert. denied 400 U.S. 823; N.L.R.B. v. Symons Manufactur- ing Co., 328 F.2d 835, 837 (C.A. 7, 1964). Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole. Heath International, Inc., 196 NLRB 318 (1972). Further, the fact that layoffs may be economically justified is no defense if the selection of those employees laid off was because of their union activities. N.L.R.B. v. Bedford-Nugent Corporation, 379 F.2d 528, 529 (C.A. 7, 1967); N.L.R.B. v. Denna Products Company, 195 F.2d 330, 335 (C.A. 7), cert. denied 348 U.S. 827. The evidence with respect to all the discriminatees ex- 61 The 10(b) period was the 6-month period preceding the filing of the original charge on January 22, 1975 cept for Dennis Little, who will be discussed separately, established that each of them had engaged in union activi- ties including signing union authorization cards. The find- ings set forth supra, established that Respondent had knowledge or was aware of their union activities. For ex- amples, as a result of Dispatcher Stuntz' interrogations Dennis Woods and Dwight Hite informed him they had signed union authorization cards, Donald Black told him his reasons for trying to get a union, and Billy Montague, Sr., told him how they would benefit by having a union. Edwin McCain and Irvin Manning in response to Presi- dent McFall's interrogations informed him why they want- ed a union and President McFall mentioned to Stephan Lee and Irvin Manning that Stephan Lee was a strong union member or supporter. Pursuant to Plant Manager Stone's interrogations Billy Montague, Sr., told him how they would benefit from the Union and Robert Neff told him he thought the Union would go through. Stone also told Stephan Lee and Billy Montague, Sr., if the Union came in he would assign them work to keep them away from home and asked Irvin Manning about dropping the union action. Moreover, both McFall and Stone informed employees they knew who the union supporters or card signers were and Stone acknowledged he was told that Ed- win McCain, Billy Montague, Sr., and Irvin Manning had signed union cards. Apart from their union activities these discriminatees, except for Donald Black who had already been terminat- ed, by attending meetings held at Irvin Manning's home, participating in the preparation and approval of those pro- posals submitted to the Respondent, and by discussing them at company meetings, acted concertedly in seeking to bargain directly with the Respondent over their wages, hours, and working conditions. Respondent, apprised of the results of those meetings primarily through reports from Irvin Manning, its receipt of the drivers' proposals, which also named Irvin Manning, Edwin McCain, and Ste- phan Lee as members of the committee selected by the drivers to represent them, and through its meetings with the drivers at which such proposals were discussed, had knowledge or reason to believe they were engaged in such concerted activities. An examination of the evidence surrounding the dis- charges of these eight discriminatees fails to support the Respondent's alleged reasons for discharging them. Donald Black was informed by Dispatcher Stuntz that he was terminated for lack of work. However, upon subse- quently confronting Stuntz about newspaper ads which the Respondent admitted it had placed for hiring drivers Stuntz informed him the reason he had been terminated was because he did not have a telephone. Dwight Hite and Dennis Woods, while allegedly termi- nated for using a company vehicle for personal transporta- tion, had previously taken their tractor in, as in the instant case, for service and repairs with company knowledge and approval. Billy Montague, Sr., who was initially informed by Stuntz he was discharged for taking his truck home, had taken his truck home while en route on assignments on prior occasions with company knowledge and permission. Moreover, following his discharge Stuntz, contrary to the CORL CORP. 257 initial reason given Montague, informed him that he had been discharged because of a bad attitude. Although Plant Manager Stone contended there were other grounds for his discharge he acknowledged it was Stuntz who had dis- charged Montague and he was only acquainted with it af- ter it had occurred. Lee was discharged by Stuntz who informed him the reason was because of his attitude which he refused to ex- plain. Although Stone claimed Lee was discharged because of a note he had left for Stuntz and because he had admit- tedly been given two prior warnings, the note incident had occurred a week or more prior to his discharge. Robert Neff was discharged by Stuntz who informed him the reasons were his cooperation with others, a bad attitude, and complaints from other drivers he did not drive fast enough. However, no evidence was offered to support these reasons and only 6 months earlier his con- duct had been rated excellent by both Stuntz and Stone. Edwin McCain was informed by Stuntz he was dis- charged because he had received a couple of tickets, ruined a tire, and stolen time from the Company. However, Stone, who admitted Stuntz had made the decision to discharge McCain, informed him the reason was a bad attitude. Con- trary to those reasons Respondent's records list additional reasons for his discharge. Irvin Manning was informed by Stuntz he was dis- charged because he could not certify his driving. However, Respondent's records show in April Stuntz had certified his driving. Contrary to that reason Stone told him it was be- cause of his attitude towards the company, which he de- fined as coming in with too many driver problems and arguments about settling them while President McFall in- dicated one of the reasons was because he had been seek- ing additional work for the drivers. With the exception of Stephan Lee none of these other discriminatees had received any warnings prior to their dis- charges although the Respondent had a warning system. Although Dispatcher Stuntz participated in discharging all of the discriminatees and in most cases made the decisions to discharge them he did not testify and the Respondent offered no explanation for his failure to do so. Thus the reasons given for their discharges were either inconsistent, contradictory, refuted by other evidence, or for conduct which had previously been permitted or condoned. Not only did the evidence set for supra, establish that Respondent had knowledge or was aware of the discrimi- natees' union activities and of their concerted activities, except for Donald Black, but Plant Manager Stone and Dispatcher Stuntz, who were responsible for their dis- charges, had participated in the unlawful conduct directed against each of them personally, such as interrogations, warnings, threats, promises, solicitations, or creating im- pressions of surveillance of their union activities. Further, the credited testimony of David Montague and Billy Mon- tague, Sr., established that Plant Manager Stone' had in- formed them the Respondent could find reasons or excuses to discharge them and had mentioned as an example Irvin Manning's driving record. Based upon a consideration of all the evidence dis- cussed, including Respondent's union animus, its knowl- edge of the discriminatees' union or protected concerted activities, the unlawful conduct directed against each of them personally, Plant Manager Stone's statement they could find reasons or excuses to discharge them giving Manning's name as an example, and having rejected Respondent's alleged reasons for their discharges, I am persuaded and find that Stephan Lee, Irvin Manning, Dwight Hite, Dennis Woods, Billy Montague, Sr., Edwin McCain,62 and Robert Neff 63 were discriminatorily dis- charged and denied reinstatement because of their union activities and their protected concerted activities in seeking to bargain directly with the Respondent concerning their wages, hours, and working conditions in violation of Sec- tion 8(a)(1) and (3) of the Act and that Donald Black 64 was discriminatorily discharged and denied reinstatement because of his union activities in violation of Section 8(a)(I) and (3) of the Act and Respondent's alleged reasons were mere pretexts. The evidence with respect to the remaining discrmiinatee Dennis Little established he did not participate in any union activities and at the time he was terminated there was not any evidence to show that Respondent was aware he had attended the drivers' meeting held at Irvin Manning's home. Absent union activities on his part or company knowledge of his activities concerning the meet- ing at Manning's home I am persuaded and find that the evidence was not sufficient to establish that he was dis- charged for any reason other than his admitted refusal to accept the warehouse job offered him at the time he was laid off for lack of work 65 The remaining issue is whether a bargaining order was warranted 66 Under the general principles enunciated by the U.S. Su- preme Court in Gissel,67 applicable to the issuance of bar- gaining orders, such orders are authorized to re those unfair labor practices so coercive that even in the absence of an 8(a)(5) violation a bargaining order would be neces- sary to repair the unlawful effects of such unfair labor practices and in those less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process. In the latter instance the Board is to de- 62 While Edwin McCain was rehired about April 15 the issue of his rein- statement was not litigated at the heanng Accordingly, no finding will be made concerning whether it was a valid reinstatement 63 Although Robert Neff was rehired on January 23, 1975, since his undis- puted testimony established at the time he was rehired he was informed by Plant Manager Stone that in order to be reinstated with full seniority he would have to earn it I do not find such conditional reinstatement to be a valid reinstatement under the Act. 64 The Respondent's contention that Sec. 10(b) of the Act bars finding Donald Black's discharge, which occurred on July 29 and was alleged in the amended complaint to be a violation, because his name was not included in the original charge filed on January 22, 1975, but first appeared in the amended charge filed on March 28, 1975, is rejected. See Stainless Steel Products, Incorporated 157 NLRB 232 (1966). 65 Having found that Dennis Little was not discharged for discriminatory reasons under the Act I do not find it necessary to consider whether he subsequently engaged in conduct which would warrant denying him rein- statement under the Act 66 Although the amended complaint while seeking a bargaining order did not allege a violation of Sec 8(a)(5) of the Act itself, a remedial bargaining order may be granted. See Justus Company, Inc., 199 NLRB 422 (1972), Mallow Plating Works, Inc, 193 NLRB 600 (1971). 67 N L.R B. v. Gissel Packing Co Inc, 395 U.S 575 (1969). 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termine the nature and extent of the employer's unlawful conduct and ascertain whether use of traditional remedies would insure a fair election. Here the evidence established supra thatat least 9 employees 68 of the 13 employees in the appropriate bargaining unit had signed cards designating the Union as their representative for the purpose of collec- tive bargaining. Although the Union represented a majori- ty of the employees when its demands for recognition and bargaining were received by the Respondent on July 16, the Respondent rather than meeting those demands in- stead engaged in those flagrant unlawful acts and conduct set forth supra, including discrimmatonly discharging eight of the Union's supporters. I find that the Respondent by engaging in such unlawful acts and conduct dissipated the Union's majority and created an atmosphere in which a free and fair election could not be held. Therefore I find a bargaining order is necessary to repair the unlawful effects of those flagrant unfair labor practices herein found. The fact that a majority of those employees who had designated the union as their collective-bargaining representative sub- sequently voted to withdraw from the Union would not preclude the issuance of a bargaining order inasmuch as I find any loss of the Union's majority was attributable to the Respondent's unfair labor practices. See Altman Cam- era Co., Inc., 207 NLRB 940 (1973), enfd. 511 F.2d 319 (C.A. 7, 1975). Further, since the Respondent had already refused to recognize and bargain with the Union I do not find that the Union's action is acceding to the employees' request to withdraw its peition in any way affected its right to represent them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of Respondent described in section I, above, have a close, mtimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Cori Corporation, a wholly owned subsidiary of O'Connor Industries, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 364, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning whether they signed union cards, about the feelings of other employees concerning the Union, how the Union would benefit the employees, and about their union activi- ties and those of other employees; by threatening employ- ees that if the Union came in they would only get the jobs other drivers did not want; by impliedly promising an em- 68 The union authorization card for Ronald Hite, who did not testify, was not included. ployee the Company would give fringe benefits to the em- ployees if they did not support the Union; by promising employees the Company could do more for them if they refrained from supporting the Union; and by soliciting em- ployees' grievances and promising to remedy them by giv- ing them a contract with various benefits including senior- ity, drop pay, paid vacations, and certain work equipment if they withdrew their support from the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By discharging and refusing to reinstate Stephan Lee, Irvin Manning, Dwight Hite, Dennis Woods, Billy Mon- tague, Sr., Edwin McCain, and Robert Neff because of their union and protected concerted activities, and by dis- charging and refusing to reinstate Donald Black because of his union activities, Respondent has engaged in unfair la- bor practices in violation of Section 8(a)(1) and (3) of the Act. 5. Respondent did not violate Section 8(a)(1) and (3) of the Act by discharging and refusing to reinstate Dennis Little. 6. All full-time truckdriver employees of the Respon- dent at its Bremen, Indiana, facility, exclusive of all pro- duction and maintenance employees, all office clerical em- ployees, all professional employees, and all guards and supervisors as defined in the Act constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 7. The Union is now and at all times since July 15, 1974, has been the exclusive representative for the purposes of collective bargaining of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend it cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. Accordingly, the Respon- dent should be ordered to immediately reinstate Stephan Lee, Irvin Manning, Dwight Hite, Dennis Woods, Billy Montague, Sr., Edwin McCain, Robert Neff, and Donald Black to their former jobs or, if those jobs no longer exist, then to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges and to make each of them whole for any loss of earnings and compensa- tion they may have suffered because of the illegal discrimi- nation against them in their employment as herein found. Backpay shall be computed in accordance with the formu- la and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950) and payment of 6 percent interest per annum shall be computed in the manner pre- scribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that the Union represented a majority of the Respondent's employees in an appropriate unit on July CORL CORP. 259 15, 1974, at which time it requested recognition and bar- gaining, and that the Respondent thereafter engaged in conduct which dissipated the Union's majority and created an atmosphere in which a free and fair election could not be held that required the issuance-of a bargaining order, I shall recommend that the Respondent recognize and upon request bargain with the Union as the representative of such employees. This order, to properly remedy the viola- tions found, shall be effective from July 16, 1974, which I find was the date the Respondent received the Union's de- mand for recognition and bargaining and responded by engaging in conduct to dissipate its majority status. See Trading Port, Inc., 219 NLRB No. 76 (1975); and American Map Company, Inc., 219 NLRB No. 186 (1975). 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: ORDER69 Respondent Corl Corporation, A Wholly Owned Subsid- iary of O'Connor Industries, Bremen, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership, feelings, and activities, and those of other employees. (b) Threatening employees that if they select the Union to represent them the only jobs they will get will be the jobs other drivers do not want. (c) Promising employees the Company can do more for them, such as give them job security and fringe benefits if they refrain from supporting the Union. (d) Soliciting employees' grievances and promising to remedy them by giving them a contract with various bene- fits, including seniority, drop pay, paid vacations, and cer- tain work equipment if they withdraw their support from the Union. (e) Discouraging membership in the Chauffeurs, Team- sters and Helpers Local Union No. 364, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or refusing to reinstate or in any other man- ner discriminating against any employee in regard to the hire or tenure of employment or any term or condition of employment. (f) Discouraging concerted activities of the employees within the meaning of Section 7 of the Act, by discharging, refusing to reinstate, or in any other manner discriminating against employees for engaging in such activity. (g) In any manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights under Sec- tion 7 of the Act, in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Recognize, effective from the date beginning July 16, 1974, and upon request, bargain collectively with the Chauffeurs, Teamsters and Helpers Local Union No. 364 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit herein found appropriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Offer immediate and full reinstatement to Stephan Lee, Irvin Manning, Dwight Hite, Dennis Woods, Billy Montague, Sr., Edwin McCain, Robert Neff, and Donald Black to their , former jobs or, if those jobs no longer exist, then to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay or other compensation they may have suffered by reason of the discrimination against them in the manner set forth in that portion of this Deci- sion entitled "The Remedy." (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 and determine the amount of backpay due under the terms of this Order. (d) Post at its Bremen, Indiana, facility copies of the attached notice marked "Appendix." 70 Copies of said no- tice, on forms provided by the, Regional Director for Re- gion 25, after being duly signed by the Respondent's au- thorized representative, shall be posted immediately upon receipt thereof,, and 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleged unfair labor practices not specifically found herein. 69 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. 70 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees concerning their union membership, feelings and ac- tivities or those of other employees. WE WILL NOT threaten our employees if they select 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union to represent them they will only get those jobs other drivers do not want. WE WILL NOT promise our employees the Company can do more for them such as give them job security and fringe benefits if they refrain from supporting the Union. WE WILL NOT solicit our employees' grievances and promise to remedy them by giving them a contract with various benefits including seniority, drop pay, paid vacations and certain work equipment if they withdraw their support from the Union. WE WILL NOT discharge , refuse to reinstate or other- wise discriminate against our employees because of their membership in, sympathies for, or activities on behalf of Chauffeurs, Teamsters and Helpers Local Union No. 364 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization or because they engage in concerted protected activities for the purpose of mutual aid or protection. WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization to form , join, or assist any labor organization, to bargain collectively through represen- tatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such rights may be effected by an agreement requiring membership it, a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL offer each of the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist , then to substantially equivalent jobs without prejudice to their seniority and other rights and privileges and will make each of them whole for any loss of pay they may have suffered by reason of the unlawful discharges with interest at the rate of 6 percent per annum: Stephan Lee Billy Montague, Sr. Irvin Manning Edwin McCain Dwight Hite Robert Neff Dennis Woods Donald Black WE WILL recognize and, upon request, bargain col- lectively with the Chauffeurs, Teamsters and Helpers Local Union No. 364 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written agreement. The bargaining unit is: All full-time truck driver employees of the Respon- dent at its Bremen, Indiana facility, exclusive of all production and maintenance employees , all profes- sional employees, and all guards and supervisors as defined in the National Labor Relations Act, as amended. CORL CORPORATION , A WHOLLY OWNED SUBSIDIARY OF O'CONNOR INDUSTRIES