Herbst Supply Co., Inc.

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Herbst Supply Co., Inc. and Paul Willemssen. Case 20-CA-10235 January 19, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 26, 1975, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in answer thereto. 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. AMENDED CONCLUSION OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By interrogating its employees about their union activity, by soliciting grievances, by telling its employees "they should seek employment elsewhere if they wanted to be represented by a union, by telling its employees that its Fairfield facility never would become unionized, and by telling its employees that it would close its Fairfield facility if the facility be- came unionized, Respondent interfered with, re- strained, 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." 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, Herbst Supply Co., Inc., Fairfield, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order as so modified: 1. Substitute the following for paragraph 1(a): "(a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of said Act, by interrogating its employees about their union activi- ty, by soliciting grievances, by telling its employees they should seek employment elsewhere if they want to be represented by a union, by telling its employees that its Fairfield facility never will become union- ized, and by telling its employees that it will close its Fairfield facility if the facility became unionized." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The Administrative Law Judge erred by not permitting the General Counsel to amend the complaint to include an allegation that Respondent additionally violated Sec. 8(a)(1) of the Act by soliciting employee griev- ances at a meeting in March 1975 At that meeting, which was called in response to the union activity, Supervisor Brownlee committed several un- fair labor practices including interrogations and threats that the trucks would be moved if the employees unionized. Brownlee also asked every driver if he had any complaints or bitches, stating that he wanted to get them out on the table at that time This statement by Brownlee, especially when viewed in the context of extensive unfair labor practices , some of which were committed concurrently with the solicitation of complaints, leaves no doubt that the Respondent at least nmpliedly promised action to correct the complaints Certainly , Respondent, by its conduct herein, can- not be considered as having rebutted this implied promise Accordingly, we grant the General Counsel's motion to amend the complaint and we find that Respondent violated Sec . 8(a)(I) by soliciting grievances at the meeting in March 1975 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in 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 abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of said Act, by interrogating our employees about their union activity, by soliciting grievances, by telling our employees they should seek employ- ment elsewhere if they want to be represented by 222 NLRB No. 73 HERBST SUPPLY CO., INC. 449 a union, by telling our employees that our Fair- field facility never will become unionized, and by telling our employees that we will close our Fairfield facility if the facility becomes union- ized. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the Act. HERBST SUPPLY CO., INC. DECISION STATEMENT OF THE CASE RUSSELL L STEVENS, Administrative Law Judge: This matter was heard at Fairfield, California, on August 7, 1975.1 The complaint, issued on June 24, is based on an initial charge filed on May 13 and an amended charge filed on June 23 by Paul Willemssen, an individual. The com- plaint alleges that Herbst Supply Co., Inc., hereinafter re- ferred to as Respondent, violated Section 8(a)(1) 2 and (3) of the National Labor Relations Act, as amended, herein- after referred to as the Act. FINDINGS OF FACT leum products. At the times relevant herein, Respondent employed five or six full-time tank truckdrivers at Fair- field, California, under the supervision of Jack Brownlee (hereinafter Brownlee).' Paul Willemssen (hereinafter Willemssen), the Charging Party herein, was employed by Respondent approximately mid-December 1973 and worked as a truckdriver on a reg- ular basis until May 9, 1975, when he was laid off by Brownlee. Willemssen was off work about the last week in April, because of, an injury. Union activity commenced at Respondent's Fairfield fa- cility with preliminary discussion among the drivers in Sep- tember or October 1974.4 Thereafter, the drivers occasion- ally discussed the possibility of organizing the Fairfield facility, with Willemssen being one of the drivers most in- terested and most active in organizational efforts. In Feb- ruary a person who identified himself as a union represen- tative called Brownlee on the telephone and Brownlee advised him to visit the facility if he wanted to talk about the Union, but the visit was not made. Brownlee called a meeting for the drivers in March, at which the Union, among other things, was discussed. The complaint alleges that Brownlee illegally threatened, interrogated, and made antiunion statements to employees and unlawfully laid off Willemssen. Respondent denies the allegations and contends Willemssen was selected for lay- off occasioned by a drop in business and because he was an unsatisfactory employee. I . BUSINESS OF RESPONDENT Respondent, a California corporation with its principal place of business in Las Vegas, Nevada, and with a gaso- line storage facility in Fairfield, California, is engaged in the wholesale distribution and transportation of petroleum products. During the past year Respondent, in the course and conduct of its business operations, sold and supplied goods valued in excess of $50,000 directly from its Fairfield facility to customers located outside the State of California. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers' Lo- cal Union 490, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent engages in sale and transportation of petro- i All dates herein are within 1975 unless stated to be otherwise 2 In his brief, General Counsel moved to add an 8 (a)(1) allegation to the complaint, based upon proof adduced at trial relative to solicitation of em- ployee grievances. That motion is denied, since there was no implied or express promise to act upon those grievances. UARCO, Inc, 216 NLRB No 2 (1974). A. Alleged Interrogation Paragraph VI(a) of the complaint alleges that Brownlee illegally interrogated an employee in March 1975. Robert King (hereinafter referred to as King), a truck- driver for Respondent, testified that in March or the last part of February, Brownlee "just asked me if I'd heard any union talk going on," and King replied "yes". Brownlee was not asked about the King conversation, but he was asked, "what employees you talked to about the Union?" Brownlee replied, "I just asked them if there'd been anything said about the Union." "Maybe somebody said `Yeah, there'was,' and I'd say, `Just forget it."' King testified in a credible manner, and his testimony is supported by that of Brownlee. No reason was given for Brownlee's interrogation, and it is clear that the reason could only be to obtain information about union activities of the drivers. The interrogation was not isolated, nor was it made in ajocular manner. Having been made against the background of Brownlee's dislike of the Union,5 and the other violations discussed below, the interrogation was coercive. It is found that this allegation of the complaint is proved. 3 Brownlee had, and exercised, authority to hire and fire, and he directed the work of all tank truckdnvers at Fairfield Brownlee is found to be a supervisor within the meaning of the Act. Testimony on commencement of union activity was vague and incon- clusive The date could have been as early as June or as late as December 1974. That date is not determinative of any issue herein 5 Acknowledged by Brownlee 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Alleged Interrogation Paragraph VI(b) of the complaint alleges that, in late March or early April, Brownlee illegally interrogated an employee during a telephone conversation. The telephone conversation apparently referred to was related by Willemssen as having occured in March and was as follows: He (note: Brownlee) dust stated that he understood that I was talking or someone was talking and people had said that I was one of the instigators that was talking about going union and that he was going to have a meeting, which I think was on a Monday. This was on a Saturday, I believe. And that he wasn't going to have any union in the yard, and nobody was going to mess him up, The conversation, if credited, shows union animus on the part of Brownlee, and includes a proscribed statement. However, the alleged conversation does not encompass an interrogation of Willemssen. In any event, Brownlee de- nied the statement attributed to him by Willemssen. Gen- eral Counsel argues that Willemssen, rather than Brownlee, should be credited because (a) Brownlee knew of Williamssen's union activity, and (b) Brownlee talked against the Union during the March meeting. That argu- ment is of a non sequitur nature. Based upon observation of the witnesses and their presentation on the stand, Brownlee is credited. It is found that this allegation of the complaint is not proved. C. Alleged Statement Paragraph VI(c) of the complaint alleges that, in late March or early April, Brownlee told Willemssen in a tele- phone conversation that the Fairfield facility never would become unionized. Willemssen testified to the conversation set forth in paragraph VI(b) above. Brownlee testified he never discussed the Union with Willemssen prior to the March meeting he held with the drivers. Brownlee acknowledged, however, that he told Willemssen during a telephone conversation in March that "we were going to have a meeting Monday morning with all the drivers" and asked Willemssen to be there. The only basis upon which this issue can be resolved is that of credi- bility. The testimony of Willemssen and Brownlee differs on several subjects, and the testimony of both is partially doubtful. However, that of Willemssen seems less credible in that it contains evasions and inconsistencies, as dis- cussed below. Based upon observation of the two witnesses on the stand and upon their testimony on other issues, Brownlee is credited on this issue. It is found that this allegation of the complaint is not proved. D. Alleged Statement Paragraph VI(d) of the complaint alleges that, in late March or early April, Brownlee told employees they should seek employment elsewhere if they wanted to be repre- sented by a union. King testified about the March meeting called by Brownlee and stated: The main thing that I remember, Jack asked ev- erybody there if anybody, had any bitches. Nobody said anything and he said, "Well, we're not going to go union." He said, "If you want a union job, I suggest you go find a union job." Brownlee did not testify concerning this alleged state- ment, nor is there other testimony or evidence contra- dicting King's testimony. King is credited. It is found that the alleged statement was made, that it is coercive, and that it was intended to discourage union ac- tivity. This allegation of the complaint is proved. E. Alleged Threat Paragraph VI(e) of the complaint alleges that, in late March or early April, Brownlee threatened employees that they would be discharged for engaging in union activity. The testimony relied upon by the General Counsel to support this allegation is Willemssen's statement that, be- tween the March meeting and April 27, Brownlee com- mented to him that "he knew there was something going on," and that the person caught doing it was "going down the road." Willemssen testified that he talked with Brownlee about the Union on about six occasions between September 1974 and May 9. Jess Lujan (hereinafter Lujan), a truckdriver for Respondent, credibly testified that Willemssen told Brownlee during the March meeting, "I suppose you think I'm the instigator of all this," and Brownlee replied, "Well, a couple of people have told me so, yes." Brownlee credi- bly testified that he knew from about his time of employ- ment by Respondent in May 1974 that Willemssen was talking about the Union. The record clearly shows, and it is found, that Brownlee knew at all times relevant herein that Willemssen was an active union advocate. In view of that fact, the statement relied upon by the General Counsel ap- pears improbable. Based upon that improbability, and upon observation of the witnesses and discrepancies in Willemssen's testimony discussed below, Brownlee's denial is credited. It is found that this allegation of the complaint is not proved, F. Alleged Statement Paragraph VI(f) of the complaint alleges that, in late March or early April, Brownlee told employees that the Fairfield facility never would become unionized. Willemssen, Jack Leeper (hereinafter Leeper), and King testified that the alleged remark, or one of similar import, was made by Brownlee at the March meeting. Brownlee testified as follows: Well, I told them all, and I believe they all knew how I felt, that I don't believe in the Union. I was in the Union once for quite a few years, and I told them my HERBST SUPPLY CO., INC. own feeling was that I figured this job would never -go union, but that was my own feeling. It was not the Company's feeling. It, was my own. Respondent's defense to the charge is that Brownlee did not make the alleged statement as one of fact and, further, that it was made as a statement of personal opinion, not binding upon Respondent. The law is clear that a statement such as the one alleged in the complaint is violative of the Act. Muncy Corporation, 211 NLRB 263 (1974); Walgreen Co., 206 NLRB 124 (1973); Edwin P. Omernick d/b/a American Building Com- ponents Company, 203 NLRB 811 (1973). Assuming, arguendo, that Brownlee's statements were made as his own opinion, that fact would not alter the legal conclusion under the facts here presented. First, Brownlee had hired several of the drivers, directed the work he as- signed to all drivers at the Fairfield facility, and was the "boss" of the drivers in every sense of the word. Having placed Brownlee in such a strong supervisorial position, Respondent cannot be heard to deny that it is bound by Brownlee's statements. Brownlee testified that he told Respondent's management prior to the March meeting that he was going to meet with the drivers, and he also testified that he reported to management after the meeting on the discussions held with the drivers. Second, use of the word ".feel" by Brownlee would not dilute the threat im- plied by the rest of the statement. Solo Cup Company, 208 NLRB 976 (1974). It is found that this allegation of the complaint is proved. G. Alleged Statement Paragraph VI(g) of the complaint alleges that, in late March or early April, Brownlee told employees that Re- spondent would close its Fairfield facility if the Union was successful in its organization attempts. Leeper, a truckdriver for Respondent, testified 6 that Brownlee threatened to move the trucks to a different lo- cality if the Fairfield facility were to become unionized. Lujan testified to the same effect, and Brownlee acknowl- edged making such a statement, although Leeper and Brownlee stated that Brownlee was expressing a personal opinion at the time. Respondent's defense to this charge is similar to its de- fense in VI(f) above, in that it claims not to be bound by Brownlee's_expression of his own opinion. However, that defense fails here, for the same reasons it failed above. The statement was made by a supervisor and constituted a veiled threat. But for the element of personal opinion, the alleged statement is violative of the Act. Spartus Corpora- tion, 195 NLRB 134 (1972); Solo Cup Co., supra. The ex- pression of personal opinion, under the facts herein, does not alter the legal consequences. Solo Cup Co., supra It is found that this allegation of the complaint is proved. 6 The date referred to in this testimony is confused, but whether it was in March or May is irrelevant, since both dates are within the 10(b) period r The complaint does not include this incident as an alleged violation of the, Act 451 H. Alleged Interrogation Paragraph VI(h) of the complaint alleges that, in late March or early April, Brownlee illegally interrogated em- ployees. King testified that, a week or so after the March meet- ing, Brownlee asked him if anyone had spoken to him about the Union and King replied no. Lujan testified to the same exchange with Brownlee at about the same time. In view of Brownlee's acknowledgment of conversations with employees about the Union, and based upon the ap- pearance and demeanor of the witnesses, King and Lujan are credited. It is found that this allegation of the complaint is proved. I. Alleged Layoff of Willemssen Paragraph VII of the complaint alleges that, on or about May 9, Brownlee laid off Willemssen because of the latter's union or concerted activities. Willemssen worked regularly on day shifts until early 1975, when he was assigned to night shifts. Brownlee testi- fied that Willemssen was put on night work for three rea- sons: first, Willemssen failed to make a hauling run he was scheduled to make to Modesto, California, in February, without notifying Brownlee or anyone else in advance; sec- ond, Willemssen consistently failed, after repeated warn- ings, to keep his truck clean; third, Willemssen'was needed on night runs to Sparks, Nevada, where he was qualified to load. Lujan, an impressive and forthright witness who is credited, testified that he changed shifts with Willemssen after being told to do so by Brownlee, who said the reasons were that Willemssen did not keep his truck in proper con- dition and that Willemssen was not dependable. Lujan said he complained to Brownlee many times about Willemssen not keeping his truck (shared with Lujan) clean, and he stated that he started working days instead of Willemssen in February, just after Willemssen missed 4 days of work following failure to make the Modesto run. Lujan said it is common knowledge at the yard, that failure to keep trucks clean is cause for transfer to night shifts, or for discharge. Willemssen testified that it is the duty of drivers to keep trucks clean and that he kept his as clean as the other drivers did; however, he also testified Brownlee talked with him between 4 and 10 tunes about keeping his truck clean. Willemssen acknowledged that he missed the run to Mo- desto in January or February, and thereafter did not go to work for a few days. He said Brownlee called him on the telephone after 2 days' absence and that, thereafter, the two discussed the problem in Brownlee's office, at which time Willemssen was reprimanded. Willemssen testified he was changed from day to night shifts 1 day after the March meeting held by Brownlee. Willemssen's version of the shift change is not credited. It is clear, and found, from the testimony and specifically from Lujan's credited version of the incident, that Willems- sen was changed from day to night shifts in January or February, rather than the day after the 'March meeting,' 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and for the reasons stated by Brownlee. Brownlee's version of Willemssen's layoff is as follows: Brownlee had concluded that a layoff was required, and he talked in the office with Willemssen on May 9. Brownlee said the reason for Willemssen's layoff was: , Because work was short and we were going to have to lay some drivers off and he wasn't doing his job, I didn't feel, according to the rest of the drivers that was there. He wasn't keeping his truck clean, and I never knew for sure if I could get ahold of hiiii. Brownlee said Willemssen replied, "Good" and left. Willemssen testified: He just walked into the office and said, "I'm going to have to lay you off," and I said, "Oh." And he said, "Yeah." He said, "Things are really getting slow here," and he said, "I'm going to have to lay some other guys off too." He said, "I'll prohably be driving myself once in a while." In testifying that a bona fide layoff, rather than a dis- charge for union or protected concerted activity, was in- volved, Brownlee said another driver (Ronnie Salvador) was laid off 3 or 4 days after Willemssen was laid off; neither Salvador nor Willemssen has been called back or replaced to date; three trucks have been in operation by Respondent at all times, and Respondent presently em- ploys four drivers in addition to Brownlee, who sometimes drives. There is nothing in the record to contradict or cast doubt upon this testimony, and it is credited. Willemssen testified that there was an informal seniority system in effect, whereby, "it was normal practice, if it got slow, the lowest man in seniority would go first." Brownlee testified "there was no set way of laying them off or senior- ity. I mean if a man doesn't do his work, then he's the first one to go." He said he once told Willemssen, "there wasn't such a thing as seniority." It was not shown at the hearing that there were layoffs prior to May 9, nor is there other evidence or testimony relative to seniority. It is found that Respondent has no seniority system, and Brownlee's testi- mony on this subject is credited. In explaining why Willemssen, rather than some other driver, was selected for layoff, Brownlee cited a number of incidents involving Willemssen. Included were unsafe and heedless driving, speeding on the highway, refusal to keep his truck clean, being undependable (particularly the Mo- desto incident), refusal to obey orders, constant complain- ing about work hours and workdays, inability to get along with other drivers, putting the wrong kind of gas in a tank, and blocking speed charts. Brownlee said he either repri- manded or talked with Willemssen on many occasions con- cerning his dirty truck, weekend work, speeding, blocking speed charts, reckless driving, refusal to do assigned jobs, and putting the wrong gas in a tank. Willemssen testified that his work quality was equal to that of the other drivers, that he never received any comments to the contrary, and that Brownlee only talked with him about his job on a couple of occasions in a routine manner. In view of the credited, supporting testimony of Lujan, and the frequent discrepancies in and the unconvincing testimony of Wil- lemssen, Brownlee's testimony concerning the instances he related is credited. However, even assuming the fact that Willemssen was an unsatisfactory employee and that Respondent had no se- nionty system, the question remains whether Willemssen was selected for layoff because of his union or protected activity, or because his work was not satisfactory. Brownlee has union animus as shown by his acknow- ledgment and his violations of the Act discussed above. He said he learned of Willemssen's union activity in June 1974, shortly after starting to work for Respondent in May 1974. He testified that, prior to the March meeting, he did not have to ask the drivers who was behind the union movement since he knew who it was. It is clear, and found, that Brownlee knew at all times relevant herein that Wil- lemssen was the principal union activist in the yard. Yet, in spite of such an obvious situation, Brownlee did not grasp the clear opportunity to fire Willemssen for the latter's fail- ing to make a scheduled run to Modesto in January or February 1975. Further, Brownlee had ample cause to fire Willemssen on several occasions because of his poor work habits and refusal to carry out orders, yet he did not fire him. If Brownlee had laid Willemssen off after first learn- ing of the latter's union activity, the case possibly would have been cast in a different light; but such is not this case. It is clear that Brownlee simply tolerated a poor worker until he was able to drop him because he no longer was needed' General Counsel's contention is that Brownlee thought he put the union matter to rest during the March meeting and that he suddenly learned on May 9 that he was in error .9 That knowledge allegedly was acquired, "soon after Brownlee learned of Willemssen's discussion with Leeper the previous evening concerning the Union." Upon gaining such knowledge, it is contended, Brownlee promptly "laid off" Willemssen. Apparently Willemssen did talk with Leeper the evening of May 8, but it is not at all clear what was said, or what happened thereafter. Events of May 9 may create a suspi- cion unfavorable to Respondent, but two factors preclude that suspicion from rising to an inference. First, the only way in which Brownlee is alleged to have learned of the Willemssen-Leeper conversation was from Leeper. However, Leeper's testimony on this subject is a hodgepodge of confusion, from which it is not possible to draw dependable conclusions. Leeper said he told Brown- lee, Papin, King, and Lujan about his conversation with $ The testimony concerning Brownlee's attempts (or, allegedly, the lack thereof) to give work to Willemsen after the latter 's layoff has been carefully considered The testimony is conflicting and no resolution thereof is made, since it is not relevant Even if it is assumed Brownlee did not try to give work to Willemssen, and even if it is assumed, arguendo, that the latter was, in effect, fired rather than laid off (a fact not shown) the question of the reasons therefor still remains As found therein, Willemssen was laid off (or fired) because of business requirement and because of his poor work and poor attitude, not because of his union or other protected activity. 9 General Counsel argues that union activity was at a standstill between the March meeting and May 9, but the record indicates continuing union discussions during that period A sudden flareup of activity that would precipitate concern on the part of Brownlee does not appear to have oc- curred HERBST SUPPLY CO., INC. Willemssen, because Willemssen told him to.10 Moments later, Leeper testified, "If I remember correctly, I told them singly, and I can't remember whether Jack (note: Brown- lee) was present or not." Leeper then said he could not recall whether he related the conversation to Brownlee. In his affidavit given to the Board, Leeper said he related the conversation to drivers Papin and Lujan "in front of Brownlee." Equally confusing is Leeper's testimony about Brownlee's alleged statement to the effect, "Forget it; there's not going to be any union here." It is not possible to ascertain from Leeper's testimony whether the statement was made during the March meeting or during the May 9 conversation, or at some other time. General Counsel ar- gues in his brief that the statement was made May 9, but, if that is so, it does no more than confuse the record even more, and it can be based upon no more than conjecture. Of further interest is the fact that Leeper's testimony is devoid of clear recitation about the substance of the May 8 conversation. It appears that Willemssen merely told Leep- er to advise the other drivers (including Brownlee) that Willemssen "was still interested" in the Union. That hardly seems likely to be a spur to action on Brownlee's part, since he had known for a year that Willemssen was the principal union activist, and he had not already fired Willemssen even though he had good cause to do so. Second, Willemssen testified at length about his injury and his being off work because of it for one week in April. Willemssen contends that he advised Brownlee April 29 that he was ready to go back to work and that he returned to work about May 3, after a few days' delay in obtaining a doctor's release requested by Brownlee. Willemssen said he worked only a few hours between his return to work and his layoff May 9. That may well be true, but if the Leeper- Willemssen conversation triggered precipitate action May 9 by Brownlee, Willemssen's implied claim that he was being punished between May 3 and May 9 for union activi- ty is inconsistent with his own case. If the union front was quiet after the March meeting, as argued by General Coun- sel, then the most logical explanation for Willemssen's shortage of work from May 3 to May 9 is that given by Brownlee-work was down and Willemssen was not need- ed. Such a state of affairs makes it appear that the union matter really wasn't -of great concern to Brownlee, and he laid off Willemssen May 9 and Salvador 3 or 4 days later. In view of the foregoing, it is clear that the General Counsel has not sustained the burden of proving the al- leged violations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, 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. 10 No reason for Willemssen to ask Leeper to relate the conversation to Brownlee (a most unlikely request) appears V. THE REMEDY 453 Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to, take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record," I hereby make the following: CONCLUSIONS OF LAW 1. Herbst Supply Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers' Local Union 490 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating its employees about their union ac- tivity, by telling its employees they should seek employ- ment elsewhere if they wanted to be represented by a union, by telling its employees that its Fairfield facility never would become unionized, and by telling its employ- ees that it would close its Fairfield facility if the facility became unionized, Respondent interfered 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. 4. Respondent did not, through alleged conduct, violate Section 8(a)(1) of the Act by conduct alleged in paragraphs VI(b), (c), and (e), nor did Respondent violate Section 8(a)(3) and (1) of the Act by discharging Paul Willemssen because of his union or concerted activities, as alleged in paragraph VII of the complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 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 12 Respondent Herbst Supply Co., Inc., Fairfield, Califor- nia, 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 rights guaranteed to them by Section 7 of the National Labor Relations Act in violation of Sec- tion 8(a)(1) of said Act, by interrogating its employees about their union activity, by telling its employees they should seek employment elsewhere if they wanted to be represented by a union, by telling its employees that its Fairfield facility never would become unionized, and by "General Counsel's motion to correct transcript, made in his brief, is uno2pposed and hereby is granted 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 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telling its employees that it would close its Fairfield facility if the facility became unionized. (b) In any like or related manner interfering with, re- straining, or coercing its employees in exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action -which, I find, will effectuate the policies of the Act: (a) Post at its Fairfield, California, place of business copies of the attached notice marked , "Appendix." 13 Cop- 13 In the event 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 " ies of said notice, on forms provided by the Regional Di- rector for Region 20, after being duly signed by a represen- tative of Respondent, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 20, 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 VI(b), (c), (e), and VII of the complaint be dismissed in their entirety.