Westpoint Transport, Inc.

WESTPOINT TRANSPORT, INC. Westpoint Transport, Inc. and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 551, Independent. Case 19-CA-7457 January 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On June 5, 1975, Administrative Law Judge Rus- sell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Respondent, the Charg- ing Party, and the General Counsel filed exceptions and supporting briefs. Respondent also filed a brief in response to the exceptions of the Charging Party and the General Counsel. 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 I as modified herein. We agree, and so find, that the Respondent unlaw- fully diluted earnings and transferred work out of the unit on September 1 I and November 7 in retaliation against Woods and his fellow unit employees for their union activity. Our Order remedies their loss of wages and benefits because of this unfair labor prac- tice. It does not follow that this finding proves that Re- spondent sold its truck in January 1975, thereby re- quiring the layoff of an employee, here Woods, for unlawful reasons. Respondent sold its truck to take advantage of an unusual opportunity to earn $6,500 in profit on the sale of the truck to a desperate cus- tomer. This was feasible because business was slow and there was no need for four trucks. Given this situation one of the drivers had to be laid off. No i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge, It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F_2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The General Counsel and the Charging Party except to the lack of a make-whole provision in the recommended Order The Administrative Law Judge found, and we agree, that Respondent violated Sec. 8(a)(3) of the Act by transferring work out of the bargaining unit and reducing the work of the bargaining unit employees. A make-whole order is the normal remedy for such conduct, and therefore we find merit in these exceptions. We shall modify the Order accordingly. 345 seniority system was in effect and Respondent there- fore could have laid off whomever it desired. Instead, however, it laid off the employee who had the least service with it or any of its companion companies, i.e., Woods. Further, Respondent offered work to Woods on several occasions after his layoff. On two occasions he accepted work, but on other occasions he turned down jobs. As the Administrative Law Judge found, there is simply no evidence to show that Respondent acted for unlawful reasons. We therefore conclude that the layoff of Woods was not discriminatorily motivated. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, West- point Transport, Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the said Order, as so modified: 1. Insert the following as paragraphs 2(c) and 2(d) and reletter the subsequent subparagraphs accord- ingly: "(c) Make whole employees Foreman, King, and Woods, whose work Respondent discriminatorily re- duced, for any loss of earnings, including interest at 6 percent per annum, they may have sustained as a result of the discrimination Respondent practiced against them. "(d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I am puzzled by the majority's failure to find that employee Woods was laid off in violation of Section 8(a)(3) of the Act. I agree with my colleagues that Respondent violated Section 8(a)(3) when on Sep- tember 11, 1974, it transferred Lamb into the Boise terminal, for the purpose of discriminating against drivers King, Foreman, and Woods, effectively dilut- ing the available work and reducing their wages.' In so finding, we rejected Respondent's contention that it needed another driver for a newly acquired truck. 2 Lamb quit on November 2, 1974, and was replaced by Randy Lind, son of Respondent's owner We agree that the substantial amount of unit work transferred to Lind continued the discrimination against King, Foreman, and Woods because of their union support 222 NLRB No. 54 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yet my colleagues accept Respondent's contention that it became necessary to lay off Woods on Janu- ary 7, 1975, because Respondent sold a truck. This finding by the majority presents a glaring in- consistency. If the transfer into the unit of Lamb and Lind and the performance of substantial unit work by them violated Section 8(a)(3) and (1) because it had the effect of reducing the work available to and the wages of King, Foreman, and Woods, then, sure- ly, the layoff of Woods for lack of work must be discriminatory, where a major cause of the alleged lack of work is the continued unlawful performance of such work by Lind.' Indeed, it is undisputed that prior to the unlawful transfer of Lamb and later Lind into the unit, Respondent had been operating with three drivers. Since we have found that the employ- ment of Lind was unnecessary and unlawful, it is clear that Woods was laid off only as a result of Respondent's unlawfully employing Lind to drive, for retaliatory purposes. 3 Contrary to the interpretation suggested by the majority, I am not find- ing that the sale of the truck in January 1975 was for unlawful reasons Whether or not that sale was for legitimate business purposes is not control- ling here, because but for the continued unlawful employment of Randy Lind, it is quite clear that Woods would not have been laid off at that time. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice. We intend to carry out the Order of the Board, the judg- ment of any court, and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT interfere with, restrain, or coerce our employees in' the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of the Act, by the following conduct: threat to reduce wages, threat to reduce hours of work; threat to refuse to allow unionization of our facilities; threat to issue changed and strict work rules; threat to transfer dispatching work out of the bargaining unit; change of, and is- suance of, strict work rules; transfer of dispatch- ing work out of the bargaining unit; issuance of individual warning letters; discontinuance of benefits; transfer of work out of the bargaining unit; interrogation of employees; interference with a union election; and solicitation of with- drawal of support for the Union. WE WILL NOT discriminate against our employ- ees in violation of Section 8(a)(3) of the Act by the following conduct: issuance of changed and strict work rules; transfer of dispatching work out of the bargaining unit; issuance of individu- al warning letters; discontinuance of benefits; reduction of hours of work; and transfer of work out of the bargaining unit. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 551, Independent, as the exclusive bargain- ing representative of our employees in the fol- lowing appropriate unit: All petroleum tanker drivers employed by Westpoint Transport, Inc., excluding all other employees and supervisors as defined in the National Labor Relations Act, in- cluding, but not limited to, the following mat- ters: restricting use by said employees of compa- ny telephone credit cards; issuance of individual letter of warning relative to restriction of use of company telephone credit cards; and transfer of work to a person outside the aforesaid bargain- ing unit. WE'WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate bargaining unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL rescind and expunge from our files and records, the following bulletin and letters, and all references thereto: 1. Bulletin to all Westpoint tanker drivers, dated August 16, 1974. 2. Letters dated August 20, 1974, addressed to Frank, Gene, Bill Lamb, Arvel. 3. Letter to Frank Foreman, dated August 27, 1974. 4. Letter to all transport drivers, dated No- WESTPOINT'TRANSPORT, INC. vember 5, 1974. 5. Letter to Gene Woods, dated November 5, 1974. 6. Letter to all transport drivers, dated Sep- tember 12, 1974. WE WILL make whole employees Foreman, King, and Woods, whose work Respondent dis- criminatorily reduced,- for any loss of earnings, including interest at.6 percent per annum, they may have sustained as a result of the discrimina- tion Respondent practiced against them. WESTPOINT TRANSPORT, INC. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Boise, Idaho, on March 18, 19, and 20, 1975.1 The complaint,2 issued January 31, 1975, is based upon a charge filed on December I1 by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 551, Independent, hereinafter referred to as the Union. The complaint, as amended, alleges that Westpoint Transport, Inc., hereinaf- ter referred to as Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. Issues The principal issues herein are whether Respondent, by various threats and other actions of a coercive and restrain- ing nature, violated Section 8(a)(1) of the Act; whether Re- spondent laid off an employee and through other actions discriminated against employees in violation of Section 8(a)(3) of the Act; and whether Respondent failed and re- fused to bargain with the Union in violation of Section 8(a)(5) of the Act. All parties have been given full opportunity to partici- pate, to introduce relevant evidence, to examine and cross- examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the Gen- eral Counsel and Respondent. Upon the entire record,3 and from my observation of the witnesses and their de- meanor, I make the following: FINDINGS, OF FACT 347 material herein, in the course and conduct of its business operations has purchased and caused to be transferred and delivered to its Boise facility goods and materials valued in excess of $50,000, which were transported to said facility directly from States other than the State of Idaho. I find that Respondent is, and at all times material herein has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 551, Independent is, and at all times relevant herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Farris C. Lind owns eight corporations engaged primar- ily in the transportation, distribution, and sale of gasoline, oils, and other products in Idaho and elsewhere. Included among the eight corporations are seven corporations' oper- ating about 35 gasoline service stations, and a corporation named Fearless Farris Wholesale, which is a distributing company. In the fall of 1973, Fearless Farris Wholesale, acting as a corporation, bought Westpoint Transport, Inc. (hereinafter Westpoint) in order to acquire the latter's com- mon carrier rights for hauling general freight within the State of Idaho. The purpose of the acquisition was to aid Farris Lind in efforts to expand his operations. Prior to 1968 Farris Lind did not own or operate any petroleum tankers to haul petroleum for his own busi- nesses; he hired common carriers to do his hauling. In that year he hired Neal R. Olson (hereinafter Olson) as vice president and general manager of the eight Farris Lind corporations. In 1968 Fearless Farris Wholesale purchased its first tanker to haul petroleum products for the Farris Lind businesses, and hired Don Grandjean (hereinafter Grandjean) as the first driver. A second tanker was pur- chased in 1969, and Randy Lind (hereinafter Randy, 'a son of Farris Lind) was hired to drive it. A third tanker was purchased in 1969 or 1970, and a third driver was hired (Arvel King, hereinafter King). Other tankers were pur- chased thereafter, and as additional tankers were pur- chased, drivers were hired to drive them. As of the time Fearless Farris Wholesale acquired Westpoint in 1973 the former owned six tankers, engaged exclusively in hauling 1. THE BUSINESS OF RESPONDENT Respondent is, and at all dines material herein has been, an Idaho corporation with offices and places of business located in Boise and elsewhere in the State of Idaho. Re- spondent is engaged in the sale, distribution, and transpor- tation of gasoline, oil, and other products, and during the past 12 months, which period is representative of all times 1 All dates hereinafter are within 1974, unless stated to be otherwise 2 As amended at hearing, pursuant to General Counsel's letter of March 13, 1975, addressed to counsel for Respondent (G C Exh 2) 3 Motion to Strike Testimony of Leslie Emerson relative to alleged state- ments of Mrs Farris Lind was filed by Respondent May 23, 1975, on the ground that said testimony is inadmissible hearsay Good cause appearing therefor, said Motion hereby is granted 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petroleum products for Farris Lind's own businesses. The six drivers were Grandjean, King, Frank Foreman (herein- after Foreman), and three others with whom this case is not concerned. After Fearless Farris Wholesale purchased Westpoint, with its common carrier license, Westpoint expanded and purchased much new equipment, and began to haul petro- leum products for outside businesses not related to the Far- ris Lind group. Included among Westpoint's equipment in mid-1974 were about 30 tractors and trailers used to haul general freight and potatoes-the latter pursuant to a then recently negotiated contract. Also included were tanker trucks, with one at Pocatello, two at Burley, one in Spo- kane (Washington), and four at Boise. Olson is now, and at all times since the Westpoint pur- chase by Fearless Farris Wholesale in 1973 has been, vice president and general manager of Westpoint, with manage- rial responsibility for Westpoint in addition to his duties relative to the 35 Farris Lind gasoline service stations. His Westpoint manager is Edwin Evans (hereinafter Evans), whom he hired in May 1974 as business increased. Olson is, and at all times material herein has been, Evans' imme- diate supervisor. Barry J. Peterson (hereinafter Peterson) was Olson's assistant at Fearless Farris Wholesale, and of- fice manager of all eight Farris Lind corporations, through- out all of 1974 and until approximately the first of March 1975, at which time he was transferred by Olson to West- point and assigned specific responsibility for petroleum de- liveries to retail' gasoline service stations.4 Lonnie Miller has been employed by Farris Lind about 20 years, and presently is on the payroll of Fearless Farris Wholesale as supervisor of some retail gasoline stations. He has never been employed by Westpoint, and never has had authority to hire and fire at Westpoint.5 The eight Farris Lind corporations employ approximate- ly 100 persons, which increases to about 120 during potato season. Corporate offices are located at 300 North Orchard in Boise, Idaho. King was employed by Fearless Farris Wholesale in 1970 as a tanker driver, and was transferred to Westpoint when the latter Company was purchased by Fearless Farris Wholesale in 1973. He remained in the same position with Westpoint until institution of these proceedings .6 Eugene Woods (hereinafter Woods) was employed by Fearless Farris Wholesale in September 1973 as a tanker driver, and later that year or in early 1974 was transferred to West- point. He drove tankers for Westpoint until January 7, 1975, when he was laid off by Olson. He drove two loads of gasoline the Monday following his layoff, but has not been It is clear from the record, and it is found, that Olson, Evans, and Peterson all exercise managerial authority, with authority to hire and fire, and are supervisors within the meaning of the Act 5 It is found that Lonnie Miller is a supervisor within the meaning of the Act for Fearless Farris Wholesale. 6 General Counsel moved near the close of hearing to amend the com- plaint to add an allegation of King's constructive discharge by Westpoint. That motion was denied because it represented an action independent of others alleged and tried during the proceedings herein Its presentation, and Respondent's defense thereto, would have required investigation , prepara- tion, and trial of matters not already anticipated or litigated , and it would have been an unexpected and unfair burden upon Respondent to litigate the matter on March 20, 1975 recalled for work since that day. Foreman was hired by Westpoint as a driver on May 21, 1973, and presently con- tinues in that same position. Randy for several years has been a trainee in Farris Lind's various businesses, and has worked throughout the organizations, in the office and in the field. He was working for the corporations when Olson started work in 1968, and began driving tanker trucks in 1969. He then drove tankers approximately 2 years, after which he did other jobs for the corporations. He began hauling dry cargo in the spring of 1974, and thereafter re- turned to tanker driving, as discussed below. Until recently Randy was secretary-treasurer of Fearless Farris Whole- sale, and at all times since his first work with the corpora- tions his father, Farris Lind, primarily has supervised Randy's employment locations. Randy presently is em- ployed as a tanker driver. By letter dated May 30, 1974, addressed to Olson at Fearless Farris, Inc., Evertt Byers (hereinafter Byers) rep- resenting the Union (Local Nos. 483, 551, and 983) re- quested recognition as the exclusive bargaining representa- tive of all tanker drivers of Fearless Farris, Inc. Said recognition was refused and on August 12 an election was conducted at Westpoint. Olson was notified on August 13 or shortly thereafter that the Union had won the election by vote of three to two. As a result of the election the National Labor Relations Board on October 24 certified said Locals Nos. 483, 551, and 983 as the joint exclusive bargaining representative for all Westpoint petroleum tanker drivers. Thereafter said representative and West- point held two negotiation sessions, on November 12 and on January 23, 1975. No contract was concluded, and there was no discussion of, or negotiations relative to, telephone credit cards, issuance of letters of warning, or transfer of work, then or at any later date. A. Alleged Reduction of Wages The complaint alleges that, on or about August 14, Re- spondent told its employees that wages would be cut and that another employee would be added to the work force, thereby reducing hours of work, because of insistence by the employees upon union representation. The complaint also alleges that, in early September, Respondent imple- mented its statement about putting on an extra employee. King testified that, on or about August 15, he was in Olson's office with Olson, Foreman, Woods, and Ron Car- ter (hereinafter Carter, who is Westpoint's attorney). He said Olson was "pretty unhappy," and told the employees that, if they continued with their union activity, "Our hours and our wages would be cut and they'd have to hire a dispatcher and bring in a fourth driver because we can only run about 60 or 70 hours a week." King testified that, in another conversation in Olson's office in late August, attended by Olson, King, Foreman, and Woods, Olson said the Union was not necessary and that he would have to have an answer from them that day as to whether they would continue to press for a union, because if they contin- ued he would bring Bill Lamb (hereinafter Lamb, a tanker driver employed by Westpoint) from Pocatello to Boise .7 If 7 Thereby diluting the amount of work available for the Boise drivers. WESTPOINT TRANSPORT, INC. they discontinued their union support, Olson said, Lamb would be left in Pocatello. King testified that the employees declined to drop their union support, and there is no dispute that Lamb was transferred from Pocatello to Boise for work as a tanker driver commencing September 11. King said Lamb took over some of the routes out of Boise that King had been driving, and that his earnings thereby were reduced. Foreman corroborated King's version of the two meet- ings held by Olson in his office during August, and testified that, after Lamb was transferred to Boise, he took some of the loads usually carried by Foreman and thereby reduced Foreman's earnings. Woods also corroborated King's version of the two meetings in Olson's office, and testified that, after Septem- ber 11, Lamb took over some of the hauls usually carried by Woods and thereby caused a decrease in Wood's in- come. Olson denied the testimony that he threatened to bring another driver to Boise and to reduce the wages of King, Foreman, and Woods, and explained Lamb's transfer to Boise by stating that, upon arrival of a truck that had been on order, he found himself with four trucks and only three drivers. He said he would have put another driver on at Boise to drive the fourth truck in any event, and that he brought Lamb from Pocatello because Lamb was having business and personal problems there and wanted to move to Boise, where he would be near his family. Further, Olson wanted to move Lamb because of the adverse effect Lamb's problems were having on business. Olson said he had been considering Lamb's transfer for some time prior to the transfer or September 11. Lamb testified that he called Olson on the telephone, about the second week in August, and told Olson he was having "trouble with one of the stations." Olson replied it was just as well, since he had been meaning to call Lamb to inquire if he would be interested in transferring to Boise to drive a tanker truck there. Lamb said he asked if that would not cut down on the work for other drivers, and Olson replied that it would shorten their hours, but to leave that to Olson. Lamb said he would think about it, and he later called Olson about the third week of August and Ol- son said the three drivers in Boise were thinking ' about giving up their support of the Union if Lamb would stay in Pocatello. After further discussion over the next few days Olson instructed Lamb, "Fly ahead, I can't get an answer" (Note: from the three Boise drivers), and Lamb moved to Boise September 11. Thereafter, Lamb drove a tanker truck as dispatched by Olson, although he said he experi- enced considerable difficulty with other drivers, particular- ly King' because Lamb was taking some of the other driv- ers' loads. Dianne King, Arvel King's wife, testified that she is a bookkeeper and that, since King began to work for Farris in 1970, she has consistently kept the family books. Her records (G.C. Exh. 20) show a decrease in King's earnings at Westpomt commencing September 1974, and that de- crease is supported by Respondent's Exhibit 1. Carter did not testify concerning any conversation at a meeting in August relative to this subject. 349 Analysis A basic consideration in assessing credibility, and in an- alyzing this and all charges discussed below, is that of union animus. Olson denied having such animus, denied the various antiunion statements and threats attributed to him by General Counsel's witnesses, and denied taking any actions on the basis of union activity. However, Olson tes- tified, "I've never attempted to keep it a secret that as far as we are concerned, we would prefer to deal with our men directly rather than through the Union," and he said he expressed to them on several occasions concern about the Union "being between us." He testified he also told the drivers, "I cannot understand the need of a third party to negotiate when you're here in my office every morning." Olson did not testify concerning, nor did he deny the testi- mony of, King, Foreman, and Woods that in August he placed the Union Notice of Election on his office couch, told them as they came in that that was as far as the notice would go, and never posted the notice thereafter, any place in the office or on the premises. The testimony of the three drivers on this point thus is credited. Finally, Olson ac- knowledged that, as a result of a labor dispute at two of the Fearless Farris stations in about May 1973 in which Olson was directly involved, the Board issued a bargaining order directed to the corporations "as though an election had been held and we lost." Under such circumstances the con- clusion is inescapable that Olson harbored union aniums at all times, relevant herein, and it is so found. In addition, specific union animus was demonstrated by Olson on sev- eral occasions, as more fully set forth below. The fact of Lamb being transferred to Boise, and the fact of a decrease in King's wages after Lamb was transferred, is well established by the record.' In dispute is the reason for the transfer, and the reason for the decrease in wages. The statements by Olson that he intended to reduce wag- es and bring in a fourth driver clearly constituted a threat under the circumstances. Olson denied the statements, but the testimony of King, Foreman, and Woods is credited. Carter was present at the first meeting testified to by King, Foreman, and Woods, but his testimony makes no refer- ence to this subject, either by way of corroboration or deni- al. It is found that the alleged statements were made as stated by the three employees, and that the statements were a threat made because of the union activity of the employ- ees. Respondent contends that the reason Lamb was trans- ferred to Boise was because a fourth driver was needed for the fourth truck that had been acquired. However, Respon- dent also contends that the reduction in wages experienced by King, Foreman, and Woods following Lamb 's transfer to Boise is explained by Respondent's drop in business, as shown in Respondent's Exhibit 1. If business had dropped to the extent claimed by Respondent, a fourth driver may well have been unnecessary, but said Exhibit I is question- able and possibly misleading, for at least two reasons. First, King testified that the gasoline business is seasonal, 8 The testimony of Foreman and Woods that their wages were reduced after Lamb was transferred to Boise is supported by Resp. Exh. 1, and is credited 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and normally drops off from the latter part of November until the first part of March. That testimony was not ques- tioned on cross-examination, and it is credited. Second, the Exhibit shows that Randy earned far more than all the other drivers during the months of December, January, and February. Olson explained that situation by stating that Randy intentionally was favored at the request of Far- ris Lind, but the fact remains that Randy's disproportion- ate share of the work was gained at the expense of the other drivers. Olson's explanation for Randy's favored treatment was that Randy recently had been divorced and needed the money, and that, at Farris Lind's request, he transferred Randy from driving dry haul trucks to driving tanker trucks when Lamb quit November 2.1 Olson said he needed the fourth driver for the fourth truck. However, according to Respondent's Exhibit 1, the Company had experienced a drop in business for two consecutive months before Lamb quit (7.14 percent in September and 15.3 per- cent in October), and showed further continuous loss in November (4.1 percent). This was Olson's second opportu- nity to bring expenses into line with income, but the oppor- tunity was ignored. He not only hired another driver while his business allegedly was dropping off quite substantially and steadily, he gave that driver favored treatment. It is clear from the foregoing that the placement at Boise of Lamb and, later, Randy, is consistent with Olson's want- ing to discriminate against King, Foreman, and Woods. His explanations are not credible. The testimony of King, Foreman, and Woods that they were threatened by Olson, as summarized above, is consistent with the record show- ing an intent, and actions, on the part of Olson to discrimi- nate against them by using Lamb and Randy, and is cred- ited. It is found that the allegations of Paragraphs 7, 8, and 15 of the complaint are proved. B. Alleged Threat Not To Permit Unionization The complaint states that, on or about August 14, Olson told employees that Respondent would not permit union representation among its employees. King testified to several instances wherein Olson ex- pressed his opposition to, and antagonism toward, unions and said Olson told him in a meeting in Olson's office about August 15, when Foreman, Woods, and Carter were present, "Before we could get the Union in, hell would freeze over." Foreman and Woods corroborated King's testimony. Carter testified, but said nothing about King's testimony quoted above, in corroboration or denial. Olson denied having made the statement. The testimony of King, Foreman, and Woods is credited. It is found that the allegations of Paragraph 9 of the complaint are proved. C. Alleged Change of Work Rules The complaint alleges that, on or about August 14, Ol- son told its employees that Respondent intended to change ' Olson said Randy was considered to have seniority for the job because he had many years' experience driving for the Lind corporations its work rules and issue written work rules because of their insistence on union representation. The complaint also al- leges that, on or about August 16, Olson implemented his statement. King testified that he, Foreman, Woods, Olson, and Car- ter met in Olson's office about August 15,10 and that Olson stated, "He would have to lay down some strict rules and we had to abide by them or it would be grounds for termi- nation." The rules he referred to were those of sticking tanks," use of daily logs and tach sheets,12 parking trucks at the 300 North Orchard office when not on runs, and using drip buckets.13 King said Olson was reading the rules from a yellow tablet he held, and that, about 2 or 3 days later, the employees received the rules in a bulletin.14 King said that, prior to the time of the meeting, tank sticking was not done regularly as policy, and was followed only with untrained or unreliable customers, usually about two or three times each week; that tach sheets were used only on long hauls, and were turned in about once each week; that logs were turned in once or twice each month; that trucks were driven home by the drivers when not on runs, with Olson's full knowledge and consent; and that use of drip buckets was sporadic. King acknowledged that use of drip buckets was a company policy; that his failure to stick a tank once resulted in an overflow, and that such a result may follow failure to stick tanks; that gasoline drip causes deterioration of asphalt and results in fire hazard; and that tach charts and logs are required of common carriers by Federal regulations. He said he did not know, until after the rules were written, of any problem with the city of Boise about parking trucks. Foreman and Woods testified essentially the same as King, the only notable exception being that Woods stated on direct examination that he re- called Olson saying at the meeting of August 17 that he was going to prepare a written list of work rules, but he stated on cross-examination that he did not remember Ol- son making such a statement. Olson denied that he told the drivers written rules would be promulgated, and he said the rules were prepared by him, and typed by his secretary on August 16, in the normal course of business without any relationship to union activity. Analysis King, Foreman, and Woods testified to the alleged state- ments by Olson at the August 17 meeting,15 and their testi- 10 The date of this meeting is in dispute King, Foreman, and Woods said the meeting was on August 15 at 7 a in, before the written rules were dis- tributed to the drivers Carter credibly testified that the meeting was held August 17 It is found that the meeting was held on Saturday, August 17 This finding, however, is not dispositive of the issue , as discussed hereinaf- ter 11 Measuring gallonage before filling storage tanks. 2 Instrument speed sheets. iJ Buckets to catch drips of gasoline after using hoses and valves, to pre- vent damage to asphalt driveways 14 G C Exh 5 is the bulletin King referred to. No written work rules previously had been prepared or distributed 15 Woods so testified on direct examination, but testified somewhat differ- ently on cross-examination No weight is assigned to the discrepancy be- cause it was apparent that Woods was confused at this point in his cross- examination. WESTPOINT TRANSPORT, INC. mony is credited,16 as more fully explained below. Olson's denial, in the face of the three employees' testimony and in the absence of any comment by Carter, who was present, is not credible. Respondent contends that no threat was involved, and that the proposed written rules were no different from what previously had been in effect, or had been required by gov- ernmental agencies. However, that defense is without merit for two reasons. First, even though there may have been unwritten rules, and some or all of them valid, the employ- ees had no way of knowing whether the threatened written rules would be the same as the oral rules of the past, or whether additional rules, possibly invalid or onerous, or both, would be added. Second, it is clear that that threat was not merely to issue written rules; it was to issue such rules because the employees were engaging in union activi- ty against Olson's wishes. It is found that the allegation of threat is proved. Respondent seeks to show that the written rules were prepared 17 and distributed 1 day prior to the meeting (thus that the testimony of King, Foreman, and Woods is not credible), and that the rules were not issued pursuant to a threat to do so. Testimony of Olson and his secretary, Les- lie Emerson, is relied upon by Respondent to establish that the rules were prepared and typed August 16, the day be- fore the meeting of the 17th. That testimony may or may not be true, but even if true, it does not settle the issue. King was not positive, but he thought the meeting with Carter and Olson was held on the 15th. Foreman and Woods seemed sure of the date being the 15th. However, all three of them were positive that the meeting was prior to their receipt of the written rules, and King credibly testi- fied that Olson was reading the rules from a yellow tablet at the meeting. The testimony of the three drivers has strong support in General Counsel's Exhibits 5 and 6. The rules, Exhibit 5, state in part "As per our discussion, will you please observe the following requirements of opera- tions." Exhibit 6, a letter to the three drivers, states in part "You will recall that on Monday, August 19, 1974, I gave you a list of `Requirements of Operation,' to be observed by each of our drivers." The import of those two state- ments is obvious. Olson discussed the proposed rules be- fore the rules were given to the drivers. Olson's attempts to explain the statements away were weak, and not credible. It is entirely reasonable to conclude that Olson was reading at the meeting from a draft, and that the rules were not actually distributed until the following Monday. Two things are certain. First, written rules were prepared and distributed to the tanker drivers, and second, prior to that distribution Respondent had no written rules for the drivers, The record amply shows that Olson was well aware of union activity on Respondent's premises at all times from at least May 1974. The meeting with the drivers on August 17, promulgation of written rules, the union elec- tion of August 12, and several incidents testified to by wit- nesses as having occurred in August, clearly establish that union business was very active, and uppermost in Olson's 16 Foreman was a particularly impressive and credible witness His testi- mony throughout the proceedings is given credence. 17 Olson's contention that the written rules were prepared at the sugges- tion of labor counsel is given no weight. 351 mind as of August 17. Olson offered no credible explana- tion for selecting that date to promulgate written rules after operating (together with Respondent's predecessor, Fear- less Farris Wholesale) without them since 1968. Olson's umon animus is clear and well-demonstrated, as discussed above. In light of these circumstances, it is clear that writ- ten rules were promulgated by Olson in order to discrimi- nate against the drivers because of their union activity and his denial of that intent is not credited. Carter's testimony that the drivers stated at the meeting of August 17, in re- sponse to his inquiry, that they did not feel they had been threatened, coerced, restrained, or promised anything, is accorded no weight. Assuming, for the sake of argument, that the written rules were dated prior to the meeting, as argued by Respondent, that fact does not close the subject. The determinative fact is whether the rules were reduced to writing in order to interfere with union activity. It is clear that they were. It is found that the allegation of the complaint (pars. 10 and 12) that the written rules were promulgated because of the drivers' insistence upon umon representation is proved. D. Alleged Transfer of Dispatching Work The complaint alleges that, on or about August 14, Ol- son told Respondent's employees he would transfer dis- patching work done by King, because of insistence by the employees upon union representation. It is alleged that the threat was carried out on or about August 16. King testified that, prior to about August 16 or 17, he routinely telephoned Farris service stations in the morn- ings, to inquire about their gasoline requirements. He said the practice began when,he was the only tanker driver at Boise between October 1970 and late 1972. King said he determined which stations needed gasoline, and after other drivers began to haul with him, he would take the runs he wanted and the other drivers would take' the remaining runs. King stated that he did not always make the tele- phone calls-sometimes they were made by Olson (about 40 percent of the time). Return calls, or calls about gaso- line, when King was out of the office, were taken by Olson or the girl in the office. King said he got the pick of the loads because he was the senior driver, and that he selected the best and most lucrative runs. When Olson made the calls prior to about mid-August, he would leave it up to the men to decide who took the runs, on a cooperative basis. King never dispatched trucks or drivers to any specific ser- vice station. King testified that Olson stated in the group meeting (found to have been held August 17) that he was going to hire a dispatcher, and that Olson took the calling detail away from him in August, after the written rules were distributed and that thereafter an employee was hired to do actual dispatching. The new dispatcher did not sim- ply call on the telephone to ascertain station requirements as King had done. The dispatcher left after a couple of weeks and Olson took over the work, which he did for about a month and a half. Ted Evans then assumed the job until it was taken over by Barry Peterson in the early part of 1975. Olson generally corroborated King's testimony about the calling system prior to August, and said a change, in- 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volving employment of a regular dispatcher, was made be- cause King was away from the office on hauls an increas- ing part of the time and this caused inconvenience to Olson and customers. Olson denied saying during the August 17 meeting that he was going to hire a dispatcher. He said the only compensation King got for taking calls was his choice of loads to haul. Carter testified about the August 17 meeting, but said nothing either way about the telephoning done by King or about Olson's alleged statement that he was going to hire a dispatcher. Analysis There is no dispute about the nature of the telephoning task done by King, nor about the fact that it was taken from him just after the written rules were promulgated in August. King's testimony that Olson said in the meeting of August 17 that he was going to hire a dispatcher is cred- ited. Since King (and thereby, Foreman and Woods) previ- ously had a definite benefit or privilege from taking his choice of runs, it is clear that the hiring of a dispatcher would relieve him of that benefit or privilege. It also is clear, and found, that the reason Olson decided to hire a dispatcher was because of King's union activities. The rea- son Olson gave for the change is not convincing, because of his union animus, his other statements and actions in opposition to the Union and union adherents, and the fact that King was on hauls less often after August than he was before. As observed by the General Counsel in his brief, the fact that King was not a dispatcher in the usual sense is immaterial. It was the removal of a benefit or privilege because of union activity that is dispositive of the issue. It is found that this allegation of the complaint is proved (pars. 11 and 12). E. Alleged Issuance of Warning Letters Paragraph 13 of the complaint alleges that, on or about August 20, Olson wrote warning letters to Respondent's employees concerning failure to observe the written rules referred to above, and told them observance of the rules was a condition of employment with Respondent. The letters are General Counsel's Exhibits 6, 7, 8, and 10. There is no question about their authenticity, their preparation by Olson, or their receipt by the addressees. No violation of rules referred to in the letters was chal- lenged, other than those described in the letter to Foreman, General Counsel's Exhibit 10. Foreman credibly explained that he damaged the gasoline terminal fill pipe on two oc- casions-once several months prior to July 1974 (in cold weather) and once in July 1974. He said such damage by all drivers is common, and it is easy to do. Foreman said neither incident was mentioned to him by Olson prior to Olson's letter of August 27. Analysis The letters in issue cover subjects which, absent any union considerations, would be legitimate items of business concern. But for the reason they were issued, the letters probably would not be legally objectionable. However, it is clear that the letters were part of a plan to discriminate against King, Foreman, and Woods because of their sup- port of the Union. As found above, the rules were issued in discrimination against the three drivers. The letters were a follow-up of that issuance. There is no showing in the rec- ord that any driver other than the three here involved ever received a written letter of warning from Olson. These three never had received such letters before, although King had been employed by Olson since 1970, Foreman since May 1973, and Woods since September 1973. Olson's letter to Foreman (G.C. Exh. 10) is obviously, and intentionally, misleading. It can be, and is, inferred that the letter was written solely in order to make a record against Foreman. Equally clear is the fact that the other letters were written for the same purpose. In light of all the circumstances, including Olson's union animus, the sudden flurry of let- ters cannot satisfactorily be explained except as retaliatory and discriminatory measures against union adherents. It is found that this allegation of the complaint is proved. F. Alleged Restriction of Credit Card Use Paragraph 14 of the complaint alleges that, on or about September 12 and at other times, Olson restricted employ- ees' use of company telephone credit cards in retaliation for their insistence upon union representation. Testimony establishes the fact that King, Foreman, Woods, and Lamb, prior to about September 12, were is- sued company telephone credit cards, or were allowed to use another driver's card number pending receipt of a card after hire. There is conflicting testimony as to whether the drivers ever received oral or written instructions to use the cards only for business purposes, but that testimony is im- material, since Olson testified that he regularly audited the telephone bills, he knew that personal calls habitually were made on the credit cards,is and he knowingly permitted such personal calls because there had been no abuse of the pnvilege.19 Olson said his review of the telephone bills dis- closed that Woods had seriously abused the privilege, as a result of which he required repayment by Woods of amounts spent for personal calls. A further result of this abuse was the issuance of bulletins to all transport drivers prohibiting use of the credit cards for anything except com- pany business. Olson said discontinuance of credit card use by tanker drivers was not related in any way to union ac- tivity. Analysis There is no controversy about the earlier permission of personal calls on company credit cards, and the discontin- uance of such permission on September 12 (G.C. Exh. 16). Olson acknowledged that credit cards were not reissued to 1s Olson said he, too, sometimes used his company credit card to make personal calls when he was on company business trips. 19 Olson's testimony on this subject was inconsistent He stated on one occasion "Now, we have never knowingly permitted one of our people to steal by using a credit card . . " However, it is clear by his later testimony that he knew personal calls were made on the cards. He said "So some of our men did that, and I was aware of it and I didn't do anything about it" WESTPOINT TRANSPORT, INC. King, Foreman, and Woods for 1975. Olson gave four sep- arate statements about discontinuance of the privilege. He first stated on direct examination by the General Counsel that the Boise drivers no longer have credit cards because "They have no need of them." He said in explanation `Be- cause they're not calling the accounts, as sometimes they have had to do in times past." 20 He testified on direct examination that drivers had been instructed in writing that credit cards were for business use only. That same language is used in General Counsel's Exhibits 13 and 16. He testified on direct examination that drivers' cards were not reissued "because since we've had a dispatcher why they've really had no use for a . . . . No need for a credit card." Finally, he testified on recall that use of the cards first was questioned because of abuse of the privilege to make personal calls. However, neither King nor Foreman abused their card privilege, yet their cards were restricted and later withheld. It is found that the privilege to use company telephone credit cards for occasional personal calls by tanker drivers is well established by the record, including Olson's testimo- ny in support of testimony by King, Foreman, and Woods. It is also found that the privilege was abused by Woods, and that discipline of Woods in some manner would have been warranted. However, Olson's denial that the discontinuance of the privilege explained above was related to union activity is not credible. The discontinuance occurred shortly after the union election; it was done at or about the same time Ol- son took several other discriminatory steps to put pressure on King, Foreman, and Woods; Olson's union animus is clear, as explained above; and Olson's testimony on this subject is inconsistent. It is found that this allegation of the complaint is proved. G. Alleged Letter of Warning Paragraph 16 of the complaint alleges that, on or about November 5, Olson issued a letter of warning to an em- ployee for violation of Respondent's restriction of tele- phone credit card use. Testimony of Woods and Olson, supported by General Counsel's Exhibit 17, clearly shows that Woods did, in fact, abuse the credit card privilege under any reasonable stan- dard of measurement. That conclusion is supported by the testimony of King and Foreman concerning their use of cards for personal calls. Common sense would dictate lim- iting use of a company credit card to personal calls occa- sioned by company travel away from home, and perhaps a few other instances when the calls were somehow related to company business or company travel. Woods, however, ap- parently considered the card as a carte blanche privilege to call whomever and whenever he wanted. He deserved to be disciplined, but the fact that King and Foreman received the same discipline so far as card use is concerned, under the circumstances described above, makes it clear that at least part of the reason for Wood's discipline constituted 20 This is a strange defense, in view of the fact that neither Foreman nor Woods was shown to have called accounts on a regular basis as King had done, yet credit cards were issued to them. 353 discriminatory action because of union activity. It is found that this allegation of the complaint is proved. H. Alleged Transfer of Work Paragraph 17 of the complaint alleges that, about the beginning of November, Respondent transferred work done by its employees in the bargaining unit described above, to a person outside the unit. Farris Lind is Respondent's owner and Randy Lind is Farris Lind's son. Thus, Randy Lind is not a statutory em- ployee and is not a member of the bargaining unit of Respondent's petroleum tanker drivers. Cerni Motor Sales, Inc., 201 NLRB 918 (1973). Randy Lind also is excluded from the bargaining unit because the special status he oc- cupies and the special treatment he receives in Respondent's employ preclude him from sharing a commu- nity of interest with the other petroleum tanker drivers. Parisoff Drive-In Market, Inc., 201 NLRB 813 (1973); Car- avelle Wood Products, Inc., 200 NLRB 855 (1972). Starting November 7 and continuing at least to the date of hearing, Respondent transferred substantial quantities of bargaining unit work to Randy, as discussed above, without first consulting or notifying the Union. Respon- dent thereby made significant unilateral changes in its em- ployees' terms of employment. N.L.R.B. v. Benne Katz etc., 369 U.S. 736 (1962). Further, transfer of the work under the circumstances described in section III, A above, clearly shows that the transfer was effected to continue the discrimination against King, Foreman, and Woods because of their union sup- port, by using Randy for that purpose after Lamb quit. It is found that this allegation of the complaint is proved. 1. Alleged Discontinuance of Annual Bonuses Paragraph 18 of the complaint alleges that, about the latter part of December 1974, Respondent 'unilaterally ceased its practice of granting employees annual bonuses. Testimony shows that year-end benefits given by West- point and its predecessor, Fearless Farris Wholesale, to tanker truckdrivers have been in two forms. Bonuses have been irregularly given; $25 Christmas gift certificates have been regularly given. King testified that 1971 was the first full year he worked for the Company. He said he received gift certificates each Christmas, 1971 through 1974, and received bonuses' of $300 in 1972 and $500 in 1973. Evidence shows that Fore- man, who started as a driver in May 1973, received a $200 bonus in 1973 and Christmas gift certificates in 1973 and 1974. Woods started to work in November 1973, received a $100 bonus in 1973, and received gift certificates in 1973 and 1974. Fox started in 1972, and received bonuses of $200 in 1972, $300 in 1973, and $250 in 1974, as well as gift certificates each year. Grandjean started in 1968 and re- ceived bonuses of $400 in 1970, $400 in 1972, $500 in 1973, and $250 in 1974, as well as gift certificates each year. Randy started in 1970, and received a $400 bonus that year, with none since. Irregular drivers have received ' no bonus; Roy Espandola started in September 1974 and Er- nest Moore started in July 1974 and neither of them re- 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceived bonuses in 1974. Both of them did, however, receive gift certificates in 1974. Olson testified that bonuses are given strictly in accor- dance with Farris' instructions, and that the year-end prof- it and loss situation is a factor, although not controlling. Other factors are personal qualifications of the drivers, Farris' personal inclinations, driver performance, and whether the drivers give Farris "peace of mind." Olson testified that Fox and Grand^ean, who worked out of the Burley terminal rather than Boise, were given bonus- es in 1974 partially because they both had run their own petroleum business for several years and thus knew many accounts, and they solicited business in addition to driving. Further, they drove their own cars on company business. He said no other drivers solicit accounts, and drivers other than Fox and Grandjean were not given bonuses in 1974 because Westpoint had a sizable loss that year. Olson testi- fied that, as of the end of November 1974, Westpoint was $87,000 "in the red," on a May 31 fiscal year basis. Olson said Farris looked at the figures and said there was no money for bonuses (other than Fox and Grandjean). Analysis Viewing the evidence as a whole, it is clear that the bo- nuses here involved were gifts; they did not constitute wages. So far as the record shows, the subject of bonuses never was discussed with employees, and certainly did not consti- tute a condition of original or later employment. They were given solely at the desire of Farris Lind, and no employee reasonably could expect a bonus in any given year, or rely upon receiving one. There has been no regularity or consistency in the giving of bonuses. King received a bonus 2 years out of 4; Fore- man 1 year (from May) out of 2; Woods 1 year (from November) out of 2; Fox 3 years out of 3; Grandjean 3 years out of 7; Randy 1 year out of 5; Roy Espandola none (from September 1974); Ernest Moore none (from July 1974). Amounts of bonuses so given varied from $100 to $500, and never were the same. Amounts are not tied to any figure, statistic, or fact. Bonuses were not given in 1974 to all drivers because the Company suffered a sizable loss that year-availability of money for bonuses is one of the criteria used by Farris, according to Olson. It is noted that not only King, Foreman, and Woods were passed over for bonuses in 1974. Roy Espandola and Ernest Moore also were passed. They only worked part of the year, but Foreman and Woods were given bonuses in 1973 for only part-year work. Woods only worked about 2 months that year. Finally, all tanker drivers, including King, Foreman, and Woods, received Christmas gift certificates in 1974, regard- less of length of service, and such certificates have been regularly given for several years. The evidence does not show that King, Foreman, and Woods did not receive bo-, nuses in 1974 in violation of the Act. It is found that Respondent has no bonus policy, that bonuses given irregularly by Respondent are gifts and not wages, and that this allegation of the complaint is not proved. J. Alleged Layoff of an Employee Paragraph 19 of the complaint alleges that, on or about January 7, 1975, Olson laid off an employee in retaliation for union support. The employee here involved is Woods, who testified that he was laid off on the date alleged. He said he was told by Olson that the layoff was of indefinite duration; that it was occasioned by the sale of one of the trucks used at Boise; and that without that truck there would not be enough work for four drivers. Woods said he protested because of his seniority, but to no avail. Woods said Olson told him they may call him for work at a later date. Woods testified that he was offered ajob as driver in Pocatello when Lamb was being considered for transfer to Heyburn, but that he refused the offer. The date of the offer is not certain, but Woods said it was after August 1974. Woods said he turned down haul jobs to Canada and to California, and he did work on two occasions for Respondent, after his layoff. Olson testified that he had an opportunity in January 1975 to sell a truck for $20,000 that had been purchased for $13,500. He said business was slow, a fourth truck was not necessary at the time, and Westpoint's profit picture then was not encouraging. He therefore decided to sell the truck, which left him with four drivers for three trucks. He selected Woods for layoff, and Olson denied that the layoff was related in any way to union activity. Analysis The evidence is inadequate to show that Woods was laid off because of his union activity. The sale of a truck at Boise under the circumstances described by Olson was not challenged, and Olson is credited on this subject. It is ac- knowledged that Woods did two jobs for Respondent after his layoff, and that he turned down other offers for hauls. General Counsel's contention that Olson should have called Woods when King was not available for hauls, and that such failure on Olson's part discredited Olson's con- tention that there was not enough work for Woods, avoids the issue. Woods was on layoff, and if King could not haul, the logical solution for Olson was to assign the haul to another driver not on layoff. General Counsel's contention in his brief that Olson wanted to get rid of Woods because of the latter's support of the Union, and discharged Woods on January 7, 1975, is not supported by the facts. There is no indication in the record that Woods was discharged. Woods acknowledged that he made two gasoline hauls for Olson after he was laid off, and that he turned down Olson's offer to make long distance hauls of dry cargo. That testimony is not consis- tent with a discharge. Further, Woods testified that he was offered the Pocatello job, a permanent one, when Lamb was being considered for transfer to Heyburn, sometime after August, but turned it down.21 If it was Olson's desire to force Woods off the payroll by bringing Lamb and Ran- dy to Boise, he would not accomplish his goal by transfer- ring Woods to Pocatello, where Woods would be assured 21 The threat by Olson to bung in another driver for Boise was made on August 17, before Woods was offered the Pocatello fob. WESTPOINT TRANSPORT, INC. 355 of an income, free from competition. Pocatello was a one- driver job. It was found, above, that Lamb and his successor Randy were brought to Boise by Olson pursuant to Olson's threat to reduce the wages of the other drivers. General Counsel contends that Woods' layoff, allegedly for lack of work, is a sham and no defense to the allegation of the complaint here being considered, because the layoff is a result of Lamb and Randy's transfer to Boise. However, a non sequi- tur is involved in that argument. There is no evidence that the sale of the truck was envisaged by Olson prior to about the time of sale. Further, there is no evidence that Olson wanted to see Woods off the payroll, The fact that Olson wanted to punish the drivers by reducing their wages does not compel the conclusion that Olson wanted to terminate Woods. The decision to lay Woods off arose well after the reduction of wages, and in an entirely different context. Olson credibly testified that he did not need four drivers for three trucks. The argument that ensued about seniority for layoff purposes is beside the point. In the first place, no seniority system was shown to exist. In the second place, even had there been such a system, there is no showing that Woods was entitled to retain his job over some other driv- er. Under the circumstances it is clear that Woods was laid off for valid business reasons not related to union activity, and that this allegation of the complaint is not proved. K. Alleged Interrogations Paragraphs 20(a) and 20(d) of the complaint allege that, about mid-July, Olson interrogated an employee about union activity. Lamb testified that, when he was interviewed for a job by Olson in early May, Olson asked him if he then or earlier had any union affiliation, if Lamb felt a union was necessary for the job Lamb was applying for, and what Lamb's personal feelings were about a union. Lamb testi- fied that, after he was hired and on the job in Pocatello about mid-June, Olson called him on the telephone and again asked about Lamb's personal feelings concerning the Union. Lamb said Olson again asked him the same sort of questions the first or second week of July, and in mid- August asked Lamb how he had voted in the union elec- tion. Olson denied the foregoing alleged interrogations. Lamb was an impressive witness. His testimony is credited. It is found that these allegations of the complaint are proved. L. Alleged Interrogations Paragraphs 20(b) and (g) of the complaint allege that, on several occasions in about July, August, and November, Olson interrogated employees about, and created the im- pression of having surveilled, umon activities. King testified that Olson interrogated him several times in July and throughout the summer to ascertain who the union ringleader was and to learn about King's union ac- tivities. King said Olson told him to find out who was be- hind the union activity. King said he approached Olson in November to solicit business for King's new mobile wash, and Olson replied that he would not be able to help be- cause "We know for a fact that you've been talking to the Union." Olson then allegedly further interrogated King as to whether Olson's belief that King had been talking with the Union, was true. Olson denied the foregoing allegations. King is credited. It is found that these allegations of the complaint are proved. M. Alleged Encouragement of an Illegal Vote Paragraph 20(c) of the complaint-alleges that, in early August, Olson and Peterson encouraged and allowed a nonunit employee to vote in a umon election. Lamb 22 testified that, in about the third week of July, Peterson asked him if he would be interested in transfer- ring to Heyburn to manage the station there. After some negotiations between Peterson and Lamb, and Lamb's ac- ceptance of the transfer, the latter asked Peterson in early August why the proposed transfer was proceeding so slow- ly, Lamb said Peterson replied that Lamb's vote was need- ed in the union election, and that he was being held in Pocatello until his vote was mailed in. Peterson told Lamb the decision had already been made to transfer Lamb to Heyburn, and that he (Peterson) had been authorized by Olson to arrange the transfer. Lamb testified that Olson told him the decision was up to Peterson. Respondent argues that Lamb was kept in a driver's po- sition until after he had voted because Respondent thought moving him would look bad and perhaps violate a law. Respondent's argument is not persuasive. Peterson's re- marks to Lamb reveal that Respondent's officers well knew that Respondent's actions were improper. There is no evi- dence that Respondent's agents sought counsel on the le- gality of the matter, although they were in frequent contact with legal counsel on related matters. However, assuming arguendo that Respondent's purpose was as stated, that is no defense. An employer must proceed after the filing of a representation petition as it would in the absence of such a petition. The Gates Rubber Company, 182 NLRB 95 (1970). Respondent failed to do so here. Lamb ultimately did not take the job because of the de- lay. It is found that this allegation of the complaint is proved. N. Alleged Solicitation of Grievances Paragraph 20(e) of the complaint states that; on or about August 14, Olson solicited employee grievances. No testimony or evidence was introduced in support of this allegation. It is found that this allegation is not proved. 0. Alleged Interrogation, Solicitation of Union Support Withdrawal, and Threat Paragraph 20(f) of the complaint states that, in about late August, Olson interrogated employees about their 22 Lamb was an impressive witness, whose testimony is credited 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities and sympathies solicited withdrawal of union support in exchange for improved wages or working conditions, and threatened to reduce working hours unless employees would forego union representation. King testified as follows, corroborated by Foreman and Woods: A meeting was held in Olson's office a few days after the meeting of August 17, discussed above. Present were King, Foreman, Woods, and Olson. The drivers en- tered Olson's office for their daily assignments. Olson shut the door and told the drivers they were all grown men and should be able to discuss the Union. He interrogated the men as to why they wanted union representation. The men suggested they needed security and were unhappy that waiting time at the terminal was not paid. Olson minimized the drivers' concerns. Olson again told the men to reassess whether they wanted to be affiliated with the Union. He told the men of the stakes involved: If they went ahead with the Umon, Respondent would bring in Lamb as a fourth driver, cutting their earnings. However, if the men would renounce the Union, Olson would leave Lamb in Pocatello and "everything could be as it was" before the union campaign. Olson persuaded the men to discuss the matter, and they left the room to do so. Upon returning, they informed Olson they were not ready to accept his of- fer; they would need time to consider it. Olson approved, but said he must have an answer by 10 a.m. the next day. Olson then dismissed Foreman and Woods, and told King to stay. He told King that, if the men would forget about the Union, Respondent could pay them $4 per hour for terminal waiting time. King, having heard Olson's, offer of paid waiting time, gave the news to his colleagues at the terminal. Concerned about developments, the drivers went to their union representative to discuss Olson's offer. Olson admits meeting with the men, discussing whether it was too late for them to leave the Union, and making a "suggestion" about the matter. Olson also admits talking with King about paying the men for waiting time. Howev- er, Olson denies having made any offers conditioned on the drivers rejecting the Union. The version of the meeting testified to by King, Fore- man, and Woods is credited. It is found that this allegation of the complaint is proved. P. Alleged Refusal To Bargain Paragraph 21 alleges that Respondent violated Section 8(a)(5) of the Act by failing and refusing to bargain with the Union concerning the actions described in paragraphs III, F, G, H, I, and J, above. The appropriate unit and certification of the Union as exclusive collective bargaining representative of the unit are admitted by Respondent. There is no controversy about the fact that all the actions alleged as having violated Section 8(a)(5) were taken unilaterally by Respondent after Olson had been notified that the Union won the election, and were taken without bargaining with the Union. It has been found that Paragraphs III, I (18 of the com- plaint) and III, J (19 of the complaint) were not proved, thus there was no duty to bargain relative to those para- graphs. It is found that the subjects covered by Paragraphs III, F, G, and H, above, are conditions of employment, pro- posed change of which must be submitted to the Union in advance, for opportunity to bargain. It is found that the changes discussed in Paragraphs III, F, G, and H, above, were not submitted to the Union for bargaining. Respondent thereby violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's activities set forth in section III above, occurring in connection with the operations of Re- spondent described in section I above, have a close inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from any other manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectu- ate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Westpoint Transport, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 551, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following words and acts Respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act: threat to reduce wages; threat to reduce hours of work; threat to refuse to allow unionization of Respondent; threat to issue changed and strict work rules; threat to transfer dispatch- ing work out of the bargaining unit; change of, and is- suance of strict work rules; transfer to dispatching work out of the bargaining unit; issuance of individual warning letters; discontinuance of benefits; transfer of work out of the bargaining unit; interrogation of employees; interfer- ence with a union election; and solicitation of withdrawal of support for the Umon. 4. By the following acts Respondent discriminated against its employees in violation of Section 8(a)(3) of the Act: issuance of changed and strict work rules; transfer of dispatching work out of the bargaining unit; issuance of individual warning letters; discontinuance of benefits; re- duction of hours of work; and transfer of work out of the bargaining unit. WESTPOINT TRANSPORT, INC. 357 5. All petroleum tanker drivers employed by Respon- dent, excluding all other employees and supervisors as de- fined in the National Labor Relations Act, constitute a unit appropriate for the purpose of collective-bargaining within the meaning of Section 9(b) of the Act. 6. The above-named labor organization is the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, and has been such exclusive representative since August 12, 1974. 7. By refusing to bargain collectively relative to the fol- lowing acts with the above-named labor organization as the exclusive bargaining representative of all employees of Respondent in the appropriate unit Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act: restricting use by said employees of company telephone credit cards; is- suance of individual letter of warning relative to restriction of use of company telephone credit cards; and transfer of work to a person outside the aforesaid bargaining unit. 8. Respondent did not, through alleged conduct, violate Section 8(a)(1) and (3) of the Act by unilaterally discontin- uing the granting of bonuses to employees; by laying off an employee; and by soliciting employee grievances. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 Respondent Westpoint Transport, Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employ- ees in the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of the Act, by the following conduct: threat to reduce wages; threat to reduce hours of work; threat to refuse to allow unionization of Respondent; threat to issue changed and strict work rules; threat to transfer dispatching work out of the bargaining unit; change of, and issuance of strict work rules; transfer of dispatching work out of the bargaining unit; issuance of individual warning letters; discontinuance of benefits; transfer of work out of the bargaining unit; interrogation of employees; interference with a union election; and solic- itation of withdrawal of support for the Union. (b) Discriminating against its employees in violation of Section 8(a)(3) of the Act by the following conduct: is- suance of changed and strict work rules; transfer of dis- patching work out of the bargaining unit; issuance of indi- 23 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 objec tions thereto shall be deemed waived for all purposes. vidual warning letters; discontinuance of benefits; reduc- tion of hours of work; and transfer of work out of the bargaining unit. (c) Refusing in violation of Section 8(a)(5) of the Act to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 551, Inde- pendent, as the exclusive bargaining representative of its employees in the following appropriate unit: All petroleum tanker drivers employed by Respondent, excluding all other employees and supervisors as defined in the National Labor Relations Act, including, but not limited to, the fol- lowing matters: restricting use by said employees of com- pany telephone credit cards; issuance of individual letter of warning relative to restriction of use of company telephone credit cards; and transfer of work to a person outside the aforesaid bargaining unit. (d) In any other manner interfering with, restraining, or coercing employees in exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate bargaining unit, with re- spect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Rescind and expunge from its files and records, the following bulletin and letters, and all references thereto: 1. Bulletin to all Westpoint tanker drivers, dated August 16, 1974. 2. Letters dated August 20, 1974, addressed to Frank, Gene, Bill Lamb, Arvel. 3. Letter to Frank Foreman, dated August 27, 1974. 4. Letter to all transport drivers, dated November 5, 1974. 5. Letter to Gene Woods, dated November 5, 1974. 6. Letter to all transport drivers, dated September 12, 1974. (c) Post at its place of business in Boise, Idaho, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that paragraphs 18, 19, and 20(e) of the complaint be dismissed in their entirety. 24 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"