Woodline, Inc.

WOODLINE, INC. Woodline, Inc.; Marshall Wood, an Individual, Mar- shall Wood d/b/a Fort Smith Cartage Company and Carter Truck Line, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Local Union No. 373 and David G. Bassham. Cases 26-CA-6226, 26-CA-6264, and 26-CA-6314 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On April 4, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed exceptions, a supporting brief, and a brief in reply to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge, to modify his remedy,3 and to adopt his recommended Order,4 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Woodline Inc.; Marshall Wood; and Marshall Wood d/b/a Fort Smith Cartage Company, Fort Smith, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for the second senten- ce in paragraph 2(d): "Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, Marshall Wood and Scotty Douthit, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted." 2. Delete the last paragraph. 231 NLRB No. 150 3. Substitute the attached notice for that of the Administrative Law Judge. X The General Counsel's motion for consolidation of cases for consider- ation before the Board is hereby denied inasmuch as the record and briefs adequately set forth the facts and positions of the parties. 2 The Administrative Law Judge found that Respondent's obligation to bargain with the Union arose May 24. 1976, "the date on which the Union had attained majority status and after which the Respondent engaged in a course of unlawful conduct to destroy the Union's majority and to preclude a free election." Under the principles set forth in Trading Port, Inc. 219 NLRB 298 (1975), we conclude that Respondent's duty to bargain arose as of May 25, 1976, the date on which Respondent received the Union's recognition demand and embarked on a clear course of unlawful conduct. Member Walther agrees with the Administrative Law Judge's conclusion that Respondent did not violate Sec. 8(aXI) of the Act by allegedly discharging Supervisor Redden, but does so for the reasons expressed in his dissent in Buddies Super Markets, 223 NLRB 950 (1976). a In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 4 In the circumstances of this case, we do not deem it necessary to invest the General Counsel with authority to seek immediate temporary relief under Sec. 10(e) f the Act as recommended by the Administrative Law Judge. Nor do Members Penello and Walther perceive any special circumstances warranting either the posting of a notice beyond 60 days or forwarding this Decision and making the record available to the ICC. Chairman Fanning agrees with the Administrative Law Judge that Respondent's misconduct is sufficiently flagrant to warrant the posting of a notice for I year and the filing of this Decision with the ICC. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and has ordered us to post this notice. The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT interrogate employees concern- ing their union membership, activities, or sympa- thies of those of other employees. WE WILL NOT threaten employees with termina- tion or other reprisals if they select International Brotherhood of Teamsters, Chauffeurs, Ware- 863 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen & Helpers of America, Local Union No. 373, or any other labor organization as their collective-bargaining representative, or engage in any other union activities. WE WILL NOT discharge employees because they engage in union activities or support the Union. WE WILL NOT discourage employees from supporting or joining the Union or any other labor organization by any discrimination affect- ing their tenure or conditions of employment. WE WILL NOT suggest that it is useless to select the Union as a bargaining representative or suggest that employees spy on the union activities of other employees. WE WILL NOT refuse to bargain collectively with the above-named Union as the exclusive collec- tive-bargaining representative of the employees in the appropriate collective-bargaining unit. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL, upon request, bargain collectively with Teamsters Local 373 as the exclusive bargaining representative of all the employees in the unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a written signed agreement. The bargaining unit is: All local pickup and delivery drivers em- ployed at our Fort Smith location, excluding all office clerical employees, guards, and supervisors as defined in the Act. WE WILL reinstate with full backpay to their former jobs or, if those jobs no longer exist, to substantially equivalent ones employees Lewis, Tuck, Mayfield, Dillenbeck, Spicer, Montgomery, Wolfe, and Keeling who, the Board found, were discriminatorily discharged because of their union activities. WOODLINE, INC., AND MARSHALL WOOD D/B/A FORT SMITH CARTAGE COMPANY i International Brotherhood of Teamsters. Chauffeurs, Warehousemen & Helpers of America, Local Union No. 373. 2 In accordance with the Board's Rules and Regulations and recent interim recommendations of the Chairman's Task Force, I asked for proposed findings of fact and conclusions of law in this case. Instead I received briefs. :' The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me at various times in late 1976 in Fort Smith, Arkansas, upon a complaint which originally issued on August 27, 1976, and was amended on September 27, 1976. The complaint alleged that Respondent violated Section 8(a)(1) of the Act by various acts of coercion; Section 8(aX3) and (1) of the Act by discriminatorily discharging a number of employees and Section 8(aX ) by discriminatorily discharging a supervisor; and Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union' which had obtained signed authorization cards from a majority of the employees, and instead engaging in unfair labor practices which require a bargaining order. The Union had also filed an election petition but no election was held because of the pendency of this proceeding. All Respondents denied the critical allegations in the complaint. At the hearing, Carter Truck Line, Inc., represented by counsel who appeared specially on its behalf, entered into a stipulation with the other parties to this proceeding that the complaint allegations against it as a respondent be dismissed for all purposes. Upon the explicit concurrence by counsel for the General Counsel, I granted the motion and hereby reaffirm the dismissal as to Carter Truck Line, Inc. The other Respondents were represented by the same counsel. Since I hereafter find that the corporate entities Woodline and Fort Smith Cartage constitute a single integrated employer, and since Marshall Wood is the owner of both enterprises, I shall refer to the remaining respondents collectively in the singular as Respondent. Upon the pleadings, the entire record in this case, the briefs of the parties,2 and from my observation of the witnesses and their demeanor,3 I make the following: FINDINGS OF FACT I. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. BUSINESS OF RESPONDENT The complaint alleges that Woodline is, and at all material times has been, a corporation doing business in Arkansas with an office and place of business located at 500 South Fresno Street, Fort Smith, Arkansas, where it is engaged in the transportation of freight. It also alleges that Woodline received $50,000 for the transportation of goods which originated or were designated for delivery at points outside Arkansas. Respondent answered by admitting derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.L.R.B. v. Walton Manufacturing Conmpany, 369 U.S. 404 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was, in and of itself, incredible and unworthy of belief. 864 WOODLINE, INC. these allegations and stating, as is shown by the record, that Woodline has additional offices located in Arkansas. The complaint also alleges that Marshall Wood d/b/a Fort Smith Cartage Company (hereafter Fort Smith Cartage) is, and at all material times has been, a sole proprietorship owned by Marshall Wood doing business in Arkansas with an office and place of business located at 500 South Fresno, Fort Smith, Arkansas, where it is engaged in the local pickup and delivery of freight. Respondent's answer admits this allegation but denies the further allegation that, since Fort Smith Cartage began operations in February or March 1976, it has received revenues and performed services valued in excess of $50,000 for enterprises each of which annually handles and ships goods valued in excess of $50,000 directly outside Arkansas. Respondent also asserts that Fort Smith Cartage does not come within the jurisdictional standards of the Board and, in any event, ceased operations in mid-July 1976. The complaint alleges that Marshall Wood is the president of Woodline, owns 99 percent of Woodline's stock, and is the sole proprietor and owner of Fort Smith Cartage. Respondent admits these allegations. The complaint also alleges that Woodline and Fort Smith Cartage are, and at all times material have been, affiliated businesses with common officers, ownership, and management and constitute a single integrated business enterprise and a single employer. Respondent denies this allegation but admits the complaint allegation that Wood- line is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Evidence was taken on the single-employer issue. If General Counsel's allegations are proven, the evidence supports a finding that Woodline and Fort Smith Cartage constitute a single employer within the meaning of the Act. This means that the two firms are considered one for jurisdictional purposes and with respect to liability, responsibility, and remedy under the Act.4 The evidence, which is essentially uncontroverted, supports a finding that Woodline and Fort Smith Cartage constitute a single integrated enterprise and a single employer within the meaning of the Act. This is consistent with the Regional Director's finding in the representation case involving the same Companies (Case 26-RC-5293). Thus, the evidence shows that Marshall Wood owns all but one share of Woodline; the remaining share is owned by his wife, Linda. He has been the president of Woodline since 1966 when it was incorporated. Scotty Douthit is vice president of Woodline. David Redden was terminal manager of Woodline in Fort Smith through June 1976. Fort Smith Cartage, wholly owned by Wood, was formed in March 1976 to carry on operations previously carried on by Woodline before legal proceedings, involving the application of the Interstate Commerce Act, resulted in loss of Woodline's interstate rights through Fort Smith. Fort Smith Cartage operated out of Woodline's Fort Smith terminal with Woodline employees and equipment until its 4 See Philip David Sachs and Michael Sachs, A Partnership, d/b/a Phil's Say-Mfart Serivce. et al., 199 NLRB 835 (1972), enfd. as modified 503 F.2d 1229 (C.A. 7, 1974): Mendenhall Trucking, Inc., 153 NLRB 1276 (1965); demise in July 1976. The supervision, Wood, Douthit, and Redden, remained the same. The books for both firms were handled by Woodline's bookkeeper in Russellville, Arkan- sas. The wage rate for the employees and their working conditions remained the same and the employees were paid by Marshall Wood on a Fort Smith Cartage account instead of a Woodline account. In these circumstances, it is clear that both firms had an interrelationship of operations, common ownership, financial control and management, and common centralized control of labor relations. Accordingly, under the authorities cited above, the two firms constitute a single integrated employer under the Act. As will be pointed out in further detail infra, after Fort Smith Cartage was dissolved in June or July 1976, Woodline continued the operation of the South Fresno Street terminal in Fort Smith. Woodline in effect resumed its previous type of business in Fort Smith by virtue of an agreement, with appropriate regulatory approval by the Interstate Commerce Commission, with Carter Truck Line, Inc. (hereafter Carter), to purchase and operate the latter's interstate authority through Fort Smith. Consequently, I also find that Respondent, the single integrated employer herein, operated its facility in Fort Smith, Arkansas, continuously, through one entity or another, after March 1976, the relevant period in this litigation. Accordingly, I find that Woodline and Fort Smith Cartage constitute a single integrated employer and an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent operates a trucking and freight business from Little Rock to Fort Smith, Arkansas, with a terminal located in Ozark, Arkansas, and other points in Arkansas, including Russellville, where its home office is located. Woodline's original authority, as of January 1971, permit- ted it to operate between Little Rock and Fort Smith and to serve all intermediate points, except Conway, Arkansas. This certification was modified by an order of a United States district court which issued in late 1975 or early 1976 and required the Interstate Commerce Commission to make further findings in support of the Little Rock to Fort Smith authority. The Commission thereafter modified Woodline's authority in order to prevent it from operating as a certified carrier to and from Fort Smith. This was a significant blow to Respondent because Fort Smith is considered a gateway city for interstate traffic to points west. As a result of these decisions, on March 5, 1976, Respondent entered into a lease agreement to operate the interstate and intrastate operating authority of Carter as well as Carter's equipment. The object of this arrangement was to find a permanent resolution to the loss of Woodline's authority from Ozark to Fort Smith. Carter, which had a terminal on Ninth Street in Fort Smith, had this authority but was apparently in financial difficulty. On Sakrete of Northern California, Inc. v. N.LR B., 332 F.2d 902, 94-907 (C.A. 9, 1964). cert. denied 379 U.S. 961 (1965). 865 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 14, 1976, the parties entered into a permanent lease agreement in effect embodying the same terms as existed in the earlier agreement. The lease agreements were the basis for first a temporary, and then a permanent, application with the Interstate Commerce Commission to operate Carter's authority. The application for temporary authority was filed on May 16, 1976. As part of an interim solution to provide for continuity of Respondent's Fort Smith operations, Respondent, through its agent, Marshall Wood, did two things. First, upon advice of transportation counsel, he formed Fort Smith Cartage to pick up and deliver freight in the commercial zone of Fort Smith. This firm utilized Wood- line's terminal, employees, and equipment, and performed operations previously performed by Woodline. The firm was designed to substitute for the lack of authority for Woodline to operate into Fort Smith. In addition, on March 11, 1976, Respondent entered into an interchange agreement with Carter. The interchange agreement provid- ed that Respondent would have its interstate freight transported between Ozark and Fort Smith by Carter. Thus Fort Smith Cartage was able to handle freight to and from an interchange point with Carter. This maintained Respondent's interstate business into and out of Fort Smith. On June 11, 1976, the Interstate Commerce Commission issued a decision granting Respondent the right to lease Carter's motor carrier properties and operating authority pursuant to its temporary application and in accordance with the applicable lease agreements. The permanent application is still pending decision by the Interstate Commerce Commission. It was stipulated by the parties that Carter was an existing truckline until the formal lease of its operating rights to Woodline. As indicated above, the lease was first signed in March 1976. Thereafter, Carter ceased doing any business except for the purpose of receiving the lease payments as required under the terms of the lease agreement. Apparently there was a transition period wherein the Carter equipment and business was being operated both at Carter's Fort Smith terminal and at Respondent's terminal. After June 15, 1976, however, Carter ceased to carry on any operations at its terminal in Fort Smith, according to the credited testimony of Carter Board Chairman William Sexton. Fort Smith Cartage was dissolved as an entity in late June or early July, 1976. Respondent's witnesses testified that this dissolution took place on July 15, 1976. Fort Smith Cartage had been operating for about 4 months and was dissolved because Woodline was granted temporary authority to operate Carter's authority. Respondent kept operating in one form or another out of its South Fresno Street terminal during the period from March 1976 through July 1976, and thereafter, essentially uninterrupted. There is also some testimony by Respondent's top officials, Marshall Wood and Scotty Douthit, concerning the relationship between Carter and Respondent in this period. Sometime after the lease agreement between Carter and Woodline, Wood and Carter's representative, Sexton, made arrangements to open a separate checking account under the name "Carter Truck Line." Wood testified he was not an officer or an employee of Carter. This bank account was apparently used by Wood to deposit income from collected freight bills under the Carter operation being handled by Respondent. It was also used to pay bills and the wages of Respondent's employees working out of the South Fresno Street terminal. There is evidence that Wood signed one of these checks, apparently for the wages of one of Respondent's drivers, on July 22, 1976. Respon- dent also paid Terminal Manager Al Mathis, who was hired in early July 1976, on this Carter account in July and August 1976. Thus, the Carter checking account was utilized by Wood at least through this period. Although the thrust of the testimony of Wood and Douthit seems to be that Carter and not Respondent had control over the business it had leased to Woodline and over Woodline employees who did this work in June and July 1976, it is clear not only from the stipulation recited above, but from the testimony of Sexton, whom I credit, that Carter had no control whatsoever over the labor relations policies of Respondent. Nor did Carter have any control over the labor relations policies concerning the employees working on routes originally under Carter's authority after June 18, 1976. I found Marshall Wood, based on his demeanor and the self-serving attempts in his testimony to escape liability for the actions taking place at his terminal on South Fresno Street in June and July 1976, to be a wholly unreliable witness. For example, he claimed not to know how the terminal was operating and who was hired and fired there. Aside from the inherent implausibility of this testimony, it is clear that he participated in the hiring of Mathis and the rehiring of an employee, Carl Dillenbeck. He also sent his vice president to reside in Fort Smith for several months in mid-1976 to supervise the terminal. Wood also claimed that he had an oral agreement with Carter not to pay employees he hired to perform Carter's former work more than a certain amount per hour and that, even though the employees were conducting Carter's former business at his South Fresno Street terminal and paid by him, they were Carter employees. Yet Sexton's credited testimony shows that such an arrangement was not made and Carter had no control over employees working at Respondent's South Fresno Street terminal. This testimony was not the testimony of an unsophisticated man, as Respondent's counsel attempted to show at the hearing, but rather, from my observation of his demeanor, the result of a deliberate effort to evade the consequences of truthful answers. I also noted that Wood was argumentative in his responses to a number of questions and extremely reluctant to give straightforward and candid answers. I therefore do not credit his testimony. Douthit's testimony was likewise self-serving and evasive on this and other issues. Based on his demeanor I discredit his testimony. He as well as Wood insisted that Respon- dent was not hiring or supervising employees in June and July at the South Fresno Street terminal. This was contrary to the facts and other credited evidence. He also insisted that Carter set guidelines as to what could be paid to new employees. However, no guidelines appeared in writing and at least one employee was hired for more than the guideline figure alleged. Finally, I have specifically discre- 866 WOODLINE, INC. dited his evasive and unreliable testimony elsewhere in this Decision. B. The Organizatonal Activity and Respondent's Interference In May 1976, the employees at Respondent's South Fresno Street terminal undertook organizational activities on behalf of the Union. All seven employees of Respon- dent at this time signed union authorization cards. They were: Paulie Mayfield, Tommy Spicer, Larry Tuck, Carl Dillenbeck, Robert Lewis, Ricky Wolfe, and Paul Mont- gomery. On May 24, 1976, the Union wrote a letter to Respondent stating that it represented a majority of the employees and demanded recognition. Respondent de- clined by letter which was not made part of the record but was attached to the General Counsel's brief. Respondent has not contested its authenticity. 5 Respondent's South Fresno Street terminal manager at the time, David Redden, received the Union's demand letter on about May 25, and subsequently gave it to Vice President Scotty Douthit. That day, David Redden approached employee Carl Dillenbeck and asked him if he had signed a card. Dillenbeck replied that he did. No purpose was given for the question and no assurances against reprisals were made. Shortly thereafter, Redden and Douthit went out on the dock to talk with employee Larry Tuck. Douthit asked Tuck if he had signed a card. Tuck replied that he had. Douthit said that he thought he was treating the employees well and asked why Tuck wanted a union. Tuck said that the reason was money. He also said that he signed a card because all the employees had signed cards. Douthit told Tuck he was going to do everything he could to keep the Union out.6 On or about June 17, Tommy Spicer, who was chiefly responsible for circulation of the authorization cards, was called into the office by David Redden to talk to Scotty Douthit. Douthit had Spicer's personnel file and he stated that he had heard that Spicer was unhappy and had a bad attitude, and that Spicer had complained that he was tired of management "bird-dogging" him. Spicer denied this and asked that the employee who had reported this statement by him be produced. Douthit then asked Spicer how he "could do this to me," and, "Doesn't your conscience bother you." Douthit failed to elaborate further on these comments. " On June 14, 1976, the Union filed an election petition with the Board in Case 26-RC 5293. The petition was received in the mail by Respondent 2 days later. A preelection hearing in that case was conducted on June 29, 1976. At least one employee. Spicer, testified in that proceeding. Later, on July 12. 1976, the Board's Regional Director issued a decision and direction of election. As I have indicated, the election was not held because of the pendency of this proceeding. f" The above is based on the testimony of Tuck as substantially corroborated by Redden. Douthit's testimony is not to the contrary except that Douthit did not recall whether Tuck said that all of the employees had signed cards. His testimony on this issue was evasive, particularly when he was trying to explain a statement in his affidavit which tended to support Redden and Tuck. I find that Tuck did make that remark and I discredit Douthit. 7 The above is based on the credited testimony of Mayfield whom I found to be a truthful and reliable witness. Redden testified about the incident and generally corroborated Mayfield. In early June 1976, David Redden was standing in a trailer talking to employee Paulie Mayfield who had just punched out and was going home. Redden said the freight business was off and it was pitiful. He said, "The freight business being off like this, and this other business, I look for Marshall Wood to sell this business and all of us will be out of a job." In late June 1976, David Redden had another conversa- tion with Paulie Mayfield. Redden told Mayfield not to say anything about it but that he had signed a union card. Redden also told Mayfield that the employees were going to be pushed around and that Respondent was going to start calling them at 3:30 a.m. and sending them home at 6 a.m. and call them back at 9:30 a.m. and send them home at 11 a.m. Mayfield asked Redden what Douthit was doing at the terminal and Redden told him that Douthit was there to "get rid of' the Union.7 On or about June 16, David Redden approached Paul Montgomery at his truck and asked Montgomery if he had signed a union card. Redden also wanted to know if Montgomery was going to vote for the Union. Montgom- ery told Redden that he did not know. Redden said that he thought that if Respondent went union or there was talk about going union, Marshall Wood would probably sell the business to Yellow Freight, another trucking concern. He also said something to the effect that there would not be any more raises. On or around June 20, Spicer had a conversation with Redden. Spicer told Redden that he was not the only one responsible for the union campaign. Spicer also said he did not want Redden to feel "personally bad" towards him. Redden then told Spicer that "They'll sell it rather than let it go union." In early June, David Redden had a conversation in the office with employee David Bassham, a rate clerk working for Respondent. He told Bassham that he had just spoken with Douthit and Wood and that they thought the employees had signed cards because Redden had babied them. Redden also said that Wood would get rid of all of the employees or would close before he would let the terminal go union. Later in June, Redden had another conversation with Bassham and told him that there were many ways to get rid of people. He said that one way was to change working times to make it hard on the drivers and discourage them so that the employees would quit. 8 On or about June 14 or 15, Douthit spoke to Carter employee Terry Walnofer at the Carter terminal on Ninth Street. He introduced himself as representing Respondent 8 The above is based on the uncontradicted testimony of Bassham. Redden was not asked about these conversations. However, I believe that Redden did make the statements attributed to him. Redden's demeanor on the witness stand as well as his testimony convinced me that he not only was a reluctant participant in Respondent's antiunion campaign at least after a period of time, but also a reluctant witness who wanted to forget about his entire involvement in this matter. He appeared fearful in revealing his participation on behalf of management in Respondent's activities. He no longer works for Respondent and dramatically expressed his intention never to work for Respondent again, in response to a question of mine at the hearing. I found him to be an honest witness with deep anxieties about his role in these matters. Finally, Bassham's testimony is consistent with other testimony by other employees as to Respondent's reaction to the union campaign and is thus inherently plausible. 867 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and offered Walnofer a job with the same pay and seniority with Respondent. Walnofer said he heard there was union activity at Respondent's terminal. Douthit responded that there was some activity but that it would not go any further and that Respondent would never go union because it could not afford a union. Walnofer said that he would call Douthit and filled out an application given to him by Douthit. Walnofer subsequently accepted Douthit's offer. Douthit admitted the conversation but denied he said Respondent would never go union. Also at this time, in June 1976, Douthit spoke to Carter employee James Keeling about working for Respondent. He told Keeling that, when he came to work for Respondent, he would probably be approached about joining the Union. Douthit said that Respondent was definitely not going union and it was up to Keeling to determine whether he wanted to sign a card. Douthit admitted he talked with Keeling and did not deny Keeling's version of the conversation as set forth above. Douthit also approached employees Wolfe in mid-June 1976 and asked if any of the other employees had complained that he was getting work while they were not. Wolfe replied that they had not complained, but he expected that they would because he was the lowest employee in terms of seniority and other employees had been put on call. Douthit told him that this was due to the Union and there was no sense hiding it. Douthit further said that he had already beaten the Union three times and he was going to beat it again. Douthit also told Wolfe that he (Douthit) would lose his job if he did not beat the Union. Around the middle of July, Larry Pfeifer, who was assistant terminal manager at the time, asked employee Terry Walnofer if there was any union activity going on then, and if there was any further activity to keep him informed. Walnofer told Pfeifer he would keep him informed. This testimony by Walnofer was uncontradicted. Employee Carl Dillenbeck was asked to resign from Respondent in June 1976 because of excessive traffic violations. On June 23, 1976, Douthit, Wood, and Redden went to Roland, Oklahoma, to visit Dillenbeck who was then working at a service station. Douthit asked Dillenbeck to return to work for the Respondent. He also promised Dillenbeck a raise if he would be a "company man" and turn over the name of anyone he heard talking for the Union. Dillenbeck thereafter returned to work. This is based on the credited testimony of Dillenbeck. He was corroborated to a certain extent by Redden who overheard part of the conversation and traveled with Wood and Douthit to Roland for this purpose.9 In view of the credited testimony set forth above, I find that Respondent committed various violations of Section 8(a)(1) of the Act. It interrogated employees about their union activities generally. This was done several times, sometimes in conjunction with threats of reprisal, with no lawful purpose, and with no assurances against reprisals given to employees. Respondent also threatened that the ' For reasons I have already stated, I do not credit the testimony of Douthit who denied most of the statements attributed to him by employee witnesses. On the other hand I found the employee witnesses to be truthful and reliable. Redden impressed me as a truthful witness and I credit him terminal would be sold or closed, hours would be changed, and employees terminated, all because the Union sought representation rights. These are clearly coercive statements and threats. Douthit's statements that Respondent would never "go union" are also violative of the Act in the context of Respondent's other violations because they emphasize Respondent's determination not to follow the law and suggest the futility of supporting the Union. Redden's remark to Mayfield that Douthit was at the South Fresno Street terminal to "get rid of the Union" has the same connotation and is also violative of the Act. Finally, Respondent sought to have employees Walnofer and Dillenbeck keep it informed of any union activity going on at the terminal. Such suggestions of surveillance are classic violations of the Act. In short, the conduct set forth above shows unlawful interrogation, threats of reprisal, state- ments of the futility of supporting the Union, and suggestions of surveillance of union activity. All such conduct is violative of Section 8(a)(I) of the Act. C. The Termination of Respondent's Unionized Work Force and the Hiring of Nonunion Personnel The seven alleged discriminatees who worked for Respondent when it operated as Fort Smith Cartage are listed below with their starting employment dates and their appropriate termination dates. Robert Lewis-Mar. 30, 1976; June 22, 1976 Tommy Spicer-Dec. 13, 1975; June 25, 1976 Paul Montgomery-Apr. 1976; June 28, 1976 Paulie Mayfield-Aug. 1975; July 7, 1976 Larry Tuck-May 1975; July 9, 1976 Carl Dillenbeck-June 1975; July 10, 1976 Rick Wolfe-May 1976; July 8, 1976 All signed union cards in mid-May 1976. All worked until June or July 1976. About this time, they were put "on call" and most were never thereafter recalled to work for Respondent. The General Counsel asserts that Respondent thereby violated the Act. Respondent denied that its conduct was discriminatorily motivated. As indicated above, in late June or early July, Respon- dent ceased operating as Fort Smith Cartage. At the time, it was paying its South Fresno Street employees on checks identifying the maker as Fort Smith Cartage. Respondent, through Scotty Douthit, told its South Fresno Street employees of the dissolution of Fort Smith Cartage. He did not ask them to stay on to work at the South Fresno Street location for Respondent. He did tell Dillenbeck and Tuck that they could apply with Carter, but left the impression that Douthit had nothing to do with the decision to hire for Carter which would be operating at the South Fresno Street terminal. Douthit did seek to recruit some former Carter employees to work at the South Fresno Street location. The record shows that Respondent hired at least two former Carter employees in June 1976: Terry Walnofer and James Keeling. Another, Bob Lewis, had been hired in generally. In some instances he was unable to recall or did not testify about particular conversations with employees and therefore the testimony is uncontradicted. 868 WOODLINE, INC. March 1976 by David Redden, who told him that Respondent had bought out Carter and that he would like Lewis to "come over now." In addition, Respondent sought applicants "from the street" and from the Arkansas Employment Security Commission. Respondent hired a number of these applicants, but many of them were not good employees and there was much turnover of employ- ees at this time.'0 Also in June 1976, Douthit told Terminal Manager David Redden that the new employees were to be assigned work and that Respondent's employees were to be put "on call." Before this conversation, Respondent's employees were working regular hours. Redden then started putting the Respondent's employees on call. This meant that they did not report for work until Respondent called them in. Redden admittedly changed the hours of work of Spicer and Montgomery in June 1976 so that they and Bob Lewis could no longer ride to work together and talk "about the Union." This was in response to Douthit's instructions. Prior to this point they had the same starting times and had been working full 40-hour weeks. After the employees were put on call, Redden could remember calling in only one employee, Paul Montgomery, for work. David Redden credibly testified that Respondent's crew at the South Fresno Street terminal in March 1976 was made up of "good men." He also testified that other employees, not necessarily from Carter, who were hired at or about this time, were not as good as the Respondent's employees. Redden testified "they was new employees and I mean, as far as some of them in the freight field, they didn't know it that well." On June 22 or 23, 1976, Lewis talked with Douthit regarding his call-in status. The previous day, Douthit had told Lewis he would save him a long distance call and Douthit would call Lewis when he needed him instead of the other way around. The next day, Lewis waited at home until after 10 a.m. Since he did not receive a phone call, he came to the terminal in Fort Smith to talk to Douthit. Douthit told him he was going to call him to come in at I p.m. for 2 or 3 hours' work. In fact, Lewis was told that this would probably be all the work Respondent would have for him. Lewis asked if he was laid off, and Douthit said, "No, you're on call." Lewis said he was going to go to the unemployment office and he wanted to know what to tell them. Douthit then said, "Tell them you are laid off, layoff, on-call, the same thing." Spicer's last day of work was June 25, 1976, when he was told he would be called when needed. On the day prior to the representation case hearing in late June 1976, Montgomery told Scotty Douthit that he had been subpenaed to go to the hearing and Douthit told "' In its application to the Interstate Commerce Commission to lease Carter's operating authority, Respondent attached an appendix entitled "Effect of the Transaction on the Interest of Carner Employees Affected." This appendix states that Carter had five employees. two of whom had indicated a desire to seek other employment; it also states that it intended to employ the three others who were engaged in pickup. delivery, and warehouse work, The appendix concludes by asserting that "the interest of employees affected will be protected." i Dillenbeck's actual testimony was that Redden told him that Douthit had told Redden that his lawyers said that he had to lay him off because of the Union. I make no findings as to the truth of what Douthit told Redden but I do find. based on Dillenbeck's testimony. which I found to be honest. him if he needed him any more he would call him. That was the last day that Montgomery worked. He did subsequently call Douthit to request work but he was told that Douthit did not have anything to do with this and he would have to check with Al Mathis, the new terminal manager. Al Mathis was hired as terminal manager for Respon- dent on July 5, 1976. At this time Wood and Douthit informed him that there were "union problems" at the South Fresno Street terminal. Douthit also told Mathis that employees Dillenbeck, Wolfe, Tuck, and Mayfield had to be off the payroll by July 15, because they had signed union cards. Mathis told Mayfield that he was not needed at this time and that he would be called when he was needed. Redden told Tuck, Dillenbeck, and Wolfe of their similar "on-call" status. Dillenbeck was told he was being laid off because of the Union." Douthit and Marshall Wood instructed Mathis that these employees were not to be recalled. Shortly after receipt by Mathis of the Regional Director's Decision and Direction of Election issued on July 12, 1976, Mathis notified Douthit of this. Douthit said he knew about it and that this was why the "people had to be off the payroll." The decision stated that those eligible to vote in the election for which the date was yet to be set would be those who were employed in the unit "during the payroll period ending immediately preceding the date of this Decision...." Mathis hired a number of employees for the Fresno Street terminal in the second week of July 1976. He hired employees to replace Mayfield, Tuck, Dillenbeck, and Wolfe from the Arkansas Employment Security Commis- sion and some "off the street." Scotty Douthit told Mathis that the former crew of employees was "an exceptional crew." In August 1976, Douthit told Mathis that Dillen- beck, Tuck, and Wolfe would be reapplying for work and that he should use them as needed. When he asked why, since they had signed union cards, Douthit said that they "had promised they wouldn't sign any new card again" and he felt sorry for them.'2 Douthit testified that Spicer and other employees were terminated when Fort Smith ceased its operations. He also testified that Carter began hiring new employees for the South Fresno Street location even though he concededly was not an official of Carter. He insisted that, with the exception of Tuck and Dillenbeck, Respondent's employ- ees "never indicated that they wanted to go to work for Carter Truck Line" and they never put in an application to work for Carter.' 3 However, Douthit also testified that numerous employees applied for work at Respondent's terminal at this time including some from the Arkansas that Redden did make such remarks to Dillenbeck at least insofar as the Union was mentioned as being the reason for the layoff. Redden did not testify about this specific conversation. 12 Dillenbeck. Wolfe. and Tuck were recalled sometime in August 1976. It is not clear whether they were recalled to their formerjobs or not. There is some evidence that at least Wolfe did not work a regular shift. Dillenbeck was thereafter terminated; Tuck was still employed by Respondent at the time of the hearing; and Wolfe left because he was not assigned regular hours. 13 Tuck and Dillenbeck did apply but they were not rehired or recalled until August 1976. after charges were filed in this case. 869 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employment Security Commission and some through "word of mouth." Most were inexperienced but some were hired. Althougb he insisted that Carter was hiring these employees, it is clear that Douthit was responsible for the hiring decisions and he used either blank applications or applications from another truck firm. He also testified that Rick Parrish, a Carter official, was required to and did approve the hiring of these employees although Parrish never interviewed applicants and did not indicate his approval on the applications. Parrish did not testify and Mathis, who did testify and interviewed and hired applicants at this time, did not refer to such a practice or requirements. Sexton's testimony fails to confirm Douthit. Finally, Douthit either never took applications from Respondent's South Fresno Street employees or told them that they would have to apply with Carter, implying that it was Carter who was hiring employees for the South Fresno Street location. As I have indicated earlier, I found Douthit's testimony to be wholly unreliable. I therefore do not credit his testimony on this issue and I specifically find that Douthit ostensibly hired these employees for Carter but actually hired them for Respondent. Douthit also testified that at least 11 people were hired to work at the South Fresno Street Terminal at this time whose applications were taken in the period from June 15 to July 15, 1976: Theron Weaver applied for work on July 8, and was hired on July 19, 1976; Lawrence Pfeifer applied July 13, 1976, and began on that date; Donald Brown applied on July 2, and started work then; Jake Sterling applied on July 6 and he began work the next day; Randy Mosely applied July 7 and began work on July 12, 1976; Dan Smith applied on July 8 and began work on about July 13, 1976; Jack Bailey made application on July 6, 1976, and began work on July 7. Dwayne Nelson applied on June 16 and was hired on June 17, 1976. Scott Carpenter applied and began work on July 1, 1976. Charles McNutt applied and began work on July 13, 1976; and Johnny Mills applied and was hired on June 16, 1976.14 The evidence is overwhelming that Respondent changed the hours of and effectively terminated its entire unionized work force in June and July 1976, in order to rid itself of the Union. The timing of the wholesale termination of Respondent's employees shortly after the Union had notified Respondent that it had obtained majority status and sought bargaining rights warrants the inference that it was based on this factor. Respondent's union animus is clearly demonstrated. Redden and Douthit preceded the terminations by statements that Respondent would beat the Union, do anything to keep it out, and would sell or close the business. As Redden credibly testified, Respon- dent knew immediately that its entire work force had signed union cards. Thereafter, as Redden told one employee, the employees' hours were changed because of the Union. He had suggested that this would be done to another employee earlier. Douthit told Mathis that em- i" There is testimony from employee Walnofer that Nelson had previously worked for Carter. 15 As 1 have indicated above, Redden specifically told an employee that Douthit was at the terminal to "get rid of' the Union. The evidence also shows that Douthit was instructed by Wood; to move to and set up residence in Fort Smith at this time. He lived in Fort Smith during the period between May 1976 and October 1976 and engaged in substantial day-to-day supervision over the operation of the terminal, ployees were to be laid off because they had signed union cards and he later stated that some could be recalled because they promised not to engage in union activities in the future. All of this evidence, when considered together with the concession by Respondent's officials that it had a good work force, is conclusive that Respondent first altered the hours of its union employees and then put them on call in such a way as to terminate their employment, all for discriminatory reasons.15 The testimony of Douthit, Respondent's chief witness on the termination issue, simply confirms this conclusion. According to Douthit, Respondent terminated its employ- ees and took applications from numerous inexperienced people and hired 11 new employees during the period from June 15 to July 15, 1976. This was in addition to former Carter employees Walnofer and Keeling who were hired in June. The new employees were admittedly inferior and there was significant turnover for several months thereaf- ter. Except for two instances, Respondent did not even talk to its own employees, who were described as good employees, about continuing to work after it formally ceased operating as Fort Smith Cartage and resumed operating as Woodline. Instead, Respondent engaged in a fiction with its employees suggesting that Fort Smith Cartage was simply closing down and that Respondent had no interest or authority in the continuing entity which was operating at the South Fresno Street terminal. The fiction continued that Carter, whose authority Respondent was operating, was the employer at the South Fresno Street location and that Carter had the ultimate authority to hire a new work force. This was not true, as the testimony of Sexton, supported by the stipulation of the parties, clearly shows. It is quite clear that Respondent was simply operating Carter's authority and was making the substan- tive hiring and labor relations decisions at the South Fresno Street terminal. But Wood and Douthit continued to engage in this fiction throughout their testimony before me. As I have indicated, I do not credit their testimony that their employees were terminated, as they apparently meant to imply, because Fort Smith Cartage simply ceased operations and those employees did not reapply with the fictionalized employer whom they represented who would be operating the Carter authority. Respondent never ceased operating, as a single integrated employer, from the South Fresno Street location. Accordingly, I find that Respondent discriminatorily changed the hours and termi- nated its entire unionized work force in late June and early July 1976. In its place Respondent hired a whole new complement of employees, replacing seasoned personnel with green hands.16 Respondent's brief, in apparent reliance upon the testimony of its transportation attorney, Conner Wiggins, urges as a defense to its conduct alleged requirements that Respondent dissolve Fort Smith Cartage Company as an entity and give a priority to employment of Carter 16 See K. B. d J. Young's Super Markets, Inc v. N. LR.B., 377 F.2d 463, 465-466 (C.A. 9, 1967), cert. denied 389 U.S. 841 (1967); Piasecki Aircraft Corporation v. N.LR.B., 280 F.2d 575. 584-585 (C.A. 3, 1960), cert. denied 364 U.S. 933 (1961); HLH Products, Division of Hunt Oil Co. v. N.LR.B., 396 F.2d 270, 271-272 (C.A. 7, 1968), cert. denied 393 U.S. 982 (1968). 870 WOODLINE, INC. employees because Woodline had sought Interstate Com- merce Commission authority to operate Carter's interstate authority. According to Respondent, if Fort Smith Cartage was not dissolved, Woodline would have been exposed to possible problems regarding Woodline's "fitness" in the so- called section 5 proceeding before the Interstate Commerce Commission involving the permanent application by Woodline to operate Carter's authority. Respondent also contends that it had an obligation to the employees of Carter whose operations were to be taken over by Woodline because 49 U.S.C. Section 5(2Xc) states that, among those factors to be considered by the Interstate Commerce Commission in the grant of a section 5 application are the "interests of the carrier employees affected." From these assertions, Respondent fashions the ingenious argument that the Fort Smith Cartage employees were entirely distinct from Woodline so that the only "carrier" employees that possibly could be affected by the takeover, after the dissolution of Fort Smith Cartage, were Carter employees. I reject this argument. Initially, Respondent's argument rests on the false, assumption that Fort Smith Cartage employees are entirely distinct from Woodline. Although I find that the reasons for the dissolution of Fort Smith Cartage were legitimate and undoubtedly connected to transportation law issues, this did not require or even explain the termination of all of Respondent's employees. Wiggin's testimony shows that Fort Smith Cartage was simply a local cartage company which required no authority from state or Federal transportation agencies. It is clear that his advice to dissolve Fort Smith Cartage meant simply that Respondent should stop operating under that name. It went no further. More importantly, neither the appearance nor the demise of Fort Smith Cartage should have had an effect on the employment rights of Respondent's employees. For, as I have found, Fort Smith Cartage and Woodline were a single employer for purposes of the National Labor Relations Act. The other part of Respondent's argument which suggests that its obligation to the Carter employees under the Interstate Commerce Act required or justified the termina- tion of its existing employees exaggerates both its obliga- tion and Wiggins' testimony. First of all, section 5(2)(c) of the Commerce Act simply states that the Commission should consider the interests of carrier employees in connection with a section 5 proceeding. To that end, apparently, a statement is required to be appended to the section 5 application as to the consequences of the takeover on the employees of the purchased carrier. Respondent's application states that it intended to hire three Carter drivers and it presumably did. I am unaware of any authorities under the Interstate Commerce Act that would require Respondent, which is itself an interstate motor carrier, to discharge its own employees in order to employ the employees of a purchased interstate motor carrier. There is nothing in Wiggins' testimony that would suggest that he advised Respondent that it was required to terminate its own employees in order to make room for the three Carter employees who wanted to work for Respon- dent. Indeed, Wiggins did not even advise that the Carter's employees had to be hired; he simply pointed out that it was necessary to file the statement as to the effect of the takeover on Carter employees. Furthermore, Respondent did not in fact have to terminate its employees in order to employ the Carter employees. There was room for all of Respondent's union employees after it took over Carter's authority. There was no diminution in business; indeed, with the purchase of Carter there would be, if anything, an increase in business. Douthit himself testified that Respon- dent took applications from the Arkansas Employment Security Commission and from employees who walked into the terminal looking for jobs. He also testified that Respondent hired some 13 people (including Walnofer and Keeling) to drive trucks out of Respondent's Fort Smith terminal in June and July 1976. He also testified that, at the time of the hearing, 13 or 14 people were employed at the Fort Smith Terminal. In short, none of Respondent's reasons, including those offered by its witnesses in explanation of the terminations, is persuasive; indeed, they border on the frivolous. My analysis of all the evidence convinces me that, upon the onset of the Union, Respondent seized upon the dissolu- tion of Fort Smith Cartage and the contemporaneous takeover of Carter's authority as a pretext to rid itself of its own employees who had unanimously selected the Union. It went on to replace its entirely prounion work force with new nonunion employees. Respondent's conduct was a clear and blatant violation of Section 8(a)3) and (1) of the Act. D. The Discharge of James Keeling The General Counsel alleges that employee James Keeling was discriminatorily discharged. Respondent denies the allegation. Keeling was hired to work for Respondent in June 1976. Previously he had worked for Carter. When he started working for Respondent he drove the same tractor he drove for Carter. Keeling signed a union authorization card on June 21, 1976. Thereafter Keeling passed out union cards to four other employees and returned the signed cards to the Union. He also solicited Larry Pfeifer who later was promoted to assistant terminal manager for Respondent. Al Mathis, who was terminal manager for Respondent at the time, signed a form for verification of employment in connection with Keeling's purchase of a home on July 12, 1976. On that form Mathis indicated that Keeling was a "good worker" and that his probable employment would last for an indefinite period. On July 23, 1976, while Keeling was on his route in Fort Smith, he noticed he was losing air in one of his tires. Since he was in the vicinity of the South Fresno Street terminal, he decided to go to the terminal and change trucks. Mathis indicated that there was no other truck available but that he would have the tire repaired and Keeling should take his lunch break. Keeling went next door to get a coke. In order to get to the coke machine, he went through a corridor owned by another trucking concern which shared facilities with Respondent. When Keeling returned with his coke, Douthit told him that he did not want the coke bottle on Respondent's dock. Keeling said he would return it when he finished his coke. Douthit insisted that Keeling drink the coke at the 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neighboring dock and he did. When Keeling returned, he made the statement, "If we had a union here, we could have us a coke machine anyway." Mathis and another employee who was present then left. Shortly thereafter, Douthit came out of his office and asked to speak with Keeling. When they were in the office, Douthit asked if Keeling had made a statement about how a union would improve Respondent. Keeling at first was ambivalent in his answer because he was afraid of the consequences, but later he admitted the remark. Douthit then said that he was tired of Keeling "dilly dallying" on the dock and told him to get his "ass" off the dock. Douthit insisted that Keeling punch out immediately and refused to let Keeling use the phone to get a ride home. Later, Mathis gave Keeling a ride to the union hall. After his discharge, Keeling called Douthit several times to ask for his job back. Douthit said he was a good employee and that he could have his job back as far as Douthit was concerned but that he should call Mathis. Keeling called Mathis but was told he was not needed. The above is based on the testimony of Keeling which was substantially corroborated by Al Mathis. Mathis confirmed Keeling's testimony about Douthit's request that Keeling not drink his coke at Respondent's dock and Keeling's subsequent remark about a union. Mathis reported this remark to Douthit. He had been instructed by Douthit to report any comments about the Union to him. Mathis corroborated Keeling's testimony that Douthit asked Keeling at least twice whether he had made the remark about the Union and, according to Mathis, Douthit "got very hot." Mathis also confirmed that Douthit told Keeling he was fired for "unsatisfactory work" and to get his "goddam ass" off the dock. Mathis candidly confirmed that he and Douthit had discussions prior to this time about Keeling's work being unsatisfactory but also testified that there had been no decision to terminate Keeling.'7 I specifically discredit Douthit's version of the discharge confrontation. Douthit testified that he did not remember Mathis mentioning Keeling's union remark to him before the discharge; he did state that Mathis told him of the remark after Keeling's discharge. I find this unbelievable and conclude that the incident happened as Mathis testified. I also find implausible Douthit's testimony that he summarily discharged Keeling because of a general dissatisfaction with his work. This was known before July 23 and obviously something Keeling did that day precipi- tated his immediate discharge. Douthit's specific objections in his testimony to Keeling's use of the corridor of another trucking concern to get his coke and his coming into the terminal with a low tire are unconvincing. Any objections to use of the corridor had been resolved before July 23 and Respondent's employees regularly used the corridor; moreover, Keeling was one and one-half blocks from the terminal when he noticed the low tire and, under any analysis, his conduct was reasonable and prudent. Keeling 17 As I have indicated, Keeling impressed me as a witness of truthful and candid demeanor. He was substantially corroborated by Mathis whom I also credit. Mathis was cross-examined vigorously by Respondent's counsel who observed that in his first affidavit to the Board there was no mention that he told Douthit of Keeling's union remark. This remark was in the second affidavit. The first affidavit was given on August 18, 1976, while Mathis was still employed; the second on September 8, 1976, after he left credibly testified that Douthit did not even mention the low tire incident when he was discharged. I also find implausible Douthit's testimony that on the very day he discharged Keeling he was talking to Sexton, Carter's chairman, about Keeling's work and that he obtained Sexton's approval to discharge Keeling. Mathis does not recall Sexton being present and my view of Douthit's testimony in this respect was that he was trying to place the responsibility for Keeling's discharge on Carter's management. It is clear not only from Sexton's own testimony and the stipulation of the parties that Carter had no control over Respondent's personnel policies after June 15, but also from Douthit's own testimony that this was so after July 15. Keeling was fired on July 23. Douthit's testimony was simply an attempted evasion to avoid a truthful recitation of the events surrounding Keeling's discharge. For all these reasons and, in view of Douthit's general unreliability as a witness, I reject his testimony as to why he discharged Keeling. Based on the credited testimony as discussed above, I find and conclude that Respondent discriminatorily dis- charged James Keeling on July 23, 1976. Keeling was a strong and active union supporter. Minutes after he expressed an interest in the Union and this was reported to Douthit, he was questioned about the remark and sum- marily discharged. This was a clear and blatant violation of Section 8(aX3) and (1) of the Act. E. The Termination of David Redden On or about June 25, 1976, Redden quit Respondent. The day before, Redden had been demoted from the terminal manager position to a truckdriving job. On the following Monday, June 28, Douthit called Redden and they discussed his return to work. In order to get vacation pay which was due to him, Redden had to give I week's advance notice of his resignation. Apparently because he did not want to lose his vacation pay, Redden agreed to return to work. Redden testified that Douthit offered him his old job back and said that he would "still be over the terminal." Redden returned to work on July 5 or 6, 1976. He worked until July 14, 1976. During the week or so Redden worked in July, he was "working the dock as a kind of an operations man." This was a supervisory position. On or about July 13, Redden told Al Mathis, who had been hired as, and was acting as, terminal manager, that he was quitting. Mathis told Redden to think about it. On the next day, July 14, Redden gave Mathis his written resignation which was effective as of July 21, 1976, and which indicated that he had a better job offer. That afternoon, after speaking with Wood or Douthit, Mathis told Redden that Respondent did not need him any longer and he left; The General Counsel claims that Redden was construc- tively discharged because, according to his brief, Redden Respondent's employ. Mathis explained this discrepancy both in his testimony and in his second affidavit by stating that he was afraid of being fired if he mentioned the matter in the first affidavit. I found this response to be candid and truthful and fully in accord with my assessment of all the testimony about Respondent's reaction to union activities in this proceed- ing. 872 WOODLINE, INC. "was blamed by Respondent for the advent of the Union." In support of this assertion, reference is made to a passage in the transcript dealing with employee Bassham's uncon- tradicted testimony that Redden told him that Douthit and Wood were "on his back" because he did not work the men hard enough and blamed most of the card signings on him. However, Redden did not testify as to these conversations and, although I conclude that the statements were made to Bassham, this is not reliable evidence, in the circumstances, that Respondent's officials forced Redden's resignation for union-related reasons. The General Counsel cites no other specific evidence to show that Respondent's acceptance of Redden's resignation was motivated by union animus. It appears that Redden did sign a card at some point after June 25, 1976, even though he was a supervisor; but there is no evidence that Respondent knew of this before Redden resigned. Redden himself candidly testified that he did not tell Wood, Douthit, or Mathis of this and that he was "pretty sure" they did not know. Significantly there is no evidence that Respondent forced Redden's resignation for any reason. Indeed, Redden himself testified that Douthit tried to keep him from resigning and offered to transfer him to Russellville. His resignation indicated he had a better job and he told Mathis this. In these circumstances, I find that the General Counsel has not shown by a preponderance of the evidence that Redden's resignation was forced or that it was caused by union animus directed by Respondent towards Redden. I have considered Respondent's apparent failure to permit Redden to work through July 21 as his resignation stated. However, I cannot infer unlawful motive from this fact. It is logical that Respondent did not wish to carry an extra supervisor who indicated a desire to quit and who said he had found a better job. I also note that Douthit had tried to discourage Redden from quitting and, according to Redden, had even offered him a transfer to Respondent's Russellville terminal. In addition, I have considered Redden's response to my question at the hearing as to why he quit. He stated that he had had enough, that the men were unhappy, that they were griping, especially about being put on call, and that he did not want to work for Respondent. While this might suggest that he did not want to be a part of Respondent's antiunion posture, it nonetheless reflects Redden's subjective motivation. It is not evidence from which I can infer that Respondent caused his resignation, and did so for union reasons. The evidence is susceptible equally to the inference that the impetus for his resignation came from his own job dissatisfaction rather than from Respondent's union animus. In short, the evidence does not establish that Respondent forced him to resign or otherwise made his work intolerable because it harbored union animus toward him. In any event, even were I to be able to infer that Respondent forced Redden's resignation and did so for union reasons, I would not find Respondent's conduct to be a violation of the Act. The General Counsel's theory is that Redden remained a supervisor throughout his employ- ment and that Respondent violated Section 8(a)(1) of the Act, presumably because his alleged forced resignation for union reasons affected employee rights under applicable authorities. Respondent conceded Redden's supervisory status and defended the case on this theory. However, I am unable to conclude from the evidence that, even if Redden was constructively discharged for union reasons, this discharge was known to employees to have been for union reasons and thus interfered with their Section 7 rights. Redden himself testified that he did not tell employees that he was resigning or the reasons for his resignation. Although some employees may have known that he had signed a union card or that Respondent was displeased with him, there was no evidence that they knew or could reasonably have thought that his resignation was forced and was for this reason. Accordingly, it would be speculative at best to infer that, even if Redden's resigna- tion was forced by Respondent for union reasons, these circumstances were sufficiently known by employees so as to require the conclusion that Redden's termination interfered with their Section 7 rights. See Florida Steel Corp. v. N.LR.B., 551 F.2d 306 (C.A. 4, 1977). For all of these reasons, I find that the General Counsel has not shown by a preponderance of the evidence that Respondent caused the resignation of David Redden or terminated him in violation of Section 8(aXl) of the Act. F. The Termination of David Bassham The General Counsel also alleges that employee David Bassham was discriminatorily discharged. Respondent claimed that he resigned. Terminal Manager Al Mathis testified that David Bassham was his rate clerk and that, although Bassham had some problems, he found Bassham's work acceptable. During the first or second week in July, Douthit told Mathis that Bassham was resigning effective the following Monday. Mathis talked to Bassham who said he was disillusioned with the Company. After some talk wherein Mathis told him his ideas about operating the terminal, Bassham agreed to stay on permanently. Mathis mentioned to Douthit that he asked Bassham to stay on and Douthit said, "That's fine. Keep what you need." Thereafter Douthit instructed Mathis to "let Bassham go" by July 15 and to tell Bassham that he would be called when needed. Bassham was never recalled. Mathis testified that, insofar as he knew, Bassham was not mistreated because of union activities. Mathis also testified that, after Bassham was released, no new rate clerk was hired but that he, Mathis, did Bassham's work. Mathis also testified that Douthit, in conversations in early July, had told him that Bassham was not doing his job properly, that he was not a good employee, and that he made too many errors. Mathis further testified that Douthit told him that he did not know if Bassham had signed a card or not and did not care because he thought Bassham's loyalties "lay with the men who had signed cards." David Bassham testified that he had been working for Respondent since March 1976 as a rate clerk. According to Bassham, he submitted his resignation to Douthit on June 28, 1976, to be effective July 7. No reason was given for the resignation. After Mathis was hired as terminal manager, Mathis spoke to Bassham about his resignation. According to Bassham, he told Mathis that Respondent was fighting the people who supported the Union. Bassham said he 873 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believed the situation would get worse rather than better. Bassham also told Mathis he had heard that he was going to be fired so he turned in his resignation. Mathis asked if he thought things could change and Bassham said it would be pretty hard. Mathis told Bassham that he was running the terminal now and that he had been given full authority to keep and hire people. Mathis asked Bassham to reconsider his resignation and Bassham told Mathis he would give him his answer in a couple of days. On July 7, Bassham told Mathis he could continue working. Bassham asked Mathis what Douthit or Wood would say about it and Mathis replied it was his terminal and he could keep whom he wanted and that he had talked to Douthit and he had "okayed" it. Mathis told Bassham he was back full time and that his resignation was void. Bassham continued working. On the morning of July 15, before he was due to report for work, Bassham was called by Mathis and told not to report because of Douthit's instructions and that he would call Bassham when he was needed. Bassham questioned if he was laid off and Mathis told him as far as he knew it was only for I day but to check back that afternoon. Bassham did and was told to file for unemploy- ment. Douthit testified that Bassham resigned before he hired Mathis and that Mathis was to do some rating work. He also testified that, about a week before the effective date of Bassham's resignation, Mathis called him and asked for permission to keep Bassham on for a few days or a week to help him out. Douthit agreed. He also testified that Bassham indicated that he could come in to work the Monday and Tuesday after July 15, but Douthit cautioned that he did not know if Bassham would be needed then. He also testified that Mathis never indicated that Bassham wanted a permanent job. Douthit also testified that he did not want Bassham to be working beyond July 15 because, after Fort Smith Cartage was phased out, he had two rate clerks, Bassham and Mathis, and he only needed one. He did not, however, tell Bassham this reason. He insisted that Bassham resigned and that Mathis and Bassham had conversations with him wherein Douthit approved Bass- ham's staying on only temporarily "a few days" to help out. It is clear that Bassham resigned in late June 1976 but worked out until July 15. The issue is whether Respon- dent's termination of Bassham, who admittedly did not sign a union card and was not active in the Union, was caused by Respondent's desire to render legitimate the discharge of its entire unionized work force. The General Counsel's theory is that Bassham was the last vestige of the old Fort Smith Cartage operation and that Respondent's termination of Bassham would legitimize the discharge of all Fort Smith Cartage employees, which was clearly discriminatory. While the evidence compels the conclusion that Respondent wished to rid itself of its unionized work force, I cannot make the inference that Bassham was swept along, notwithstanding that he was not a union supporter. It appears that Respondent retained other office employees at the South Fresno Street terminal and Bassham was not in the drivers unit which the Union attempted to organize. The General Counsel's case depends on the testimony, which stands contradicted, that Mathis voided Bassham's resignation and asked him to stay on permanently and that Douthit had approved this procedure. Douthit testified that he only approved a temporary extention of employ- ment and that he never authorized or intended to authorize a permanent continuation of Bassham's employment. In order to accept the General Counsel's theory, it would be necessary to infer that something occurred between the time-approximately July 7, 1976-when Douthit allegedly approved Bassham's permanent return to work, and July 15, when he changed his mind and insisted that Bassham not work any longer. There is simply no evidence from which I could infer that Douthit changed his mind about retaining Bassham and did so based on union animus. Under General Counsel's theory, Douthit had the same opportunity to terminate Bassham for union reasons on July 7 as he did on July 15. That he did not do so highlights the absence of a crucial piece of evidence in General Counsel's case as to which he has the burden or proof; it also tends to support Douthit's explanation. Although I found Douthit's testimony in the main to be unreliable in this proceeding, his testimony on this issue-that he only meant to retain Bassham temporarily-is plausible. Douth- it testified that he did not want to retain two rate clerks, especially since Mathis had considerable experience and Bassham admittedly was having problems. Moreover, it is plain from Bassham's testimony that the impetus for this original resignation came from him, not Respondent, and that it was not forced because of antiunion reasons. This analysis does not reflect adversely on Mathis' testimony, for I am convinced that he believed he had the authority to keep Bassham on as a permanent employee and to void his resignation and he probably told Bassham this. However, it does not appear that Douthit actually told him in haec verba that Bassham could stay on permanently. Mathis' testimony is unclear on this point: he testified that he simply told Douthit about asking Bassham to stay and Douthit agreed. He did not testify as to whether Douthit agreed that it could be a permanent arrangement. That there may have been an initial misunderstanding between Mathis and Douthit on this point seems apparent since Mathis did not question Douthit's subsequent order that Bassham be terminated on July 15. I have also considered Bassham's testimony that he was told not to talk to Bob Lewis, a prounion employee, and that Redden made some antiunion remarks in his presence. Although this evidence indicates general union animus, I cannot conclude that it shows that Respondent harbored union animus specifically towards Bassham and that this contributed significantly either to his resignation or the refusal of Respondent to retain him as a permanent employee after July 15, 1976. In these circumstances, the General Counsel has not shown by a preponderance of the evidence that Respondent terminated David Bassham in violation of Section 8(aX3) and (1) of the Act. G. The Respondent's Refusal To Bargain and its Bargaining Obligation The parties do not dispute the appropriate unit for collective bargaining which was found by the Regional Director in his decision of July 12, 1976, in Case 26-RC- 5293. Units composed of drivers in a single terminal of an 874 WOODLINE, INC. employer are presumptively appropriate. Accordingly, I find the following unit appropriate in the circumstances of this case: All local pickup and delivery drivers and dock employees employed by Respondent at its Fort Smith, Arkansas, location, excluding all office clerical employ- ees, guards, and supervisors as defined in the Act. The parties stipulated that the aforementioned unit consisted of seven employees for the payroll period ending May 26, 1976. As indicated above, all seven of these employees had signed union authorization cards at various dates in mid- May 1976. The cards were clear on their face, they were authenticated by the employees themselves, and there was no showing of misrepresentation which would have controverted the stated purpose of the cards. Accordingly, the Union represented a majority of Respondent's Fort Smith employees in the unit described above as of May 24, 1976, the date of the Union's demand for recognition. The standards for determining whether a bargaining order is required in any given set of facts are set forth in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). There, the Supreme Court held that such an order would be an appropriate remedy for: (I) " 'exceptional' cases marked by 'outrageous' and 'pervasive' unfair labor practices ... of 'such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had,' " and (2) "less extraordinary cases marked by less pervasive practices which nonetheless still has the tendency to undermine majority strength and impede the election processes." The Court went on to point out that the Board, "[i ]n fashioning a remedy ... can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." Id. at 614. Applying these standards, I conclude that a bargaining order is required to protect the free and true expression of employees sentiment as demonstrated by the signed authorization cards. Respondent's unfair labor practices, particularly the discriminatory discharge of its entire work force because it unanimously supported the Union, are of such a nature that their coercive effects cannot be eliminated by traditional remedies. Respondent not only destroyed the Union's majority status but made the holding of a free and fair election among employees an impossibility. Even after the initial termination of union supporters, it discriminato- rily discharged James Keeling, a relatively new employee who had been hired from the Carter operation. And Respondent's representatives made repeated statements to the effect that Respondent would never accept a union. This is clearly a case which falls within the first category of Gissel. Respondent's conduct is so outrageous and perva- sive that a bargaining order is the only appropriate remedy. In these circumstances, Respondent's obligation to bargain with the Union dates from May 24, 1976, the date on which the Union had attained majority status and after which the Respondent engaged in a course of unlawful conduct to destroy the Union's majority and to preclude a free election. Trading Port, Inc., 219 NLRB 298 (1975). CONCLUSIONS OF LAW I. All local pickup and delivery trucks and dock employees employed by Respondent at its Fort Smith, Arkansas, location, excluding all office clerical employees, guards, and supervisors as defined in the act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since May 24, 1976, the Union has been and is now the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By interrogating employees concerning their union activities and that of other employees; threatening employ- ees with reprisals, including termination of employees and closure of the Fort Smith terminal, if the Union won bargaining rights; suggesting the futility of supporting a union; and suggesting that employees keep Respondent informed of union activities, Respondent has engaged in unfair labor practices affecting commerce in violation of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By discriminatorily changing the hours of its employ- ees and by discriminatorily discharging employees Robert Lewis, Tommy Spicer, Paul Montgomery, Paulie Mayfield, Larry Tuck, Carl Dillenbeck, Rick Wolfe, and James Keeling because of their union activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act; 5. By refusing, since May 24, 1976, and at all times thereafter, to recognize and bargain with the Union as the exclusive representative of its employees in the appropriate unit set out above, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. Respondent has not otherwise violated the Act. THE REMEDY In addition to the bargaining requirement that I have discussed above, I shall recommend that Respondent be required to cease and desist from its unlawful conduct and take certain affirmative action which is necessary to effectuate the policies of the Act. Having also found that Respondent discriminatorily terminated eight of its employees in June and July 1976, I shall recommend that it be required to offer them immediate, full, and unconditional reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent ones without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of such discrimination, by paying them sums of money equal to the amount they would have earned from the date of the discrimination against them to the date of Respondent's offer to reinstate them as aforesaid, less their net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with 875 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).'8 I find that further remedial provisions are warranted in the circumstances of this case. First of all, I shall require that, in addition to the posting of a notice, Respondent mail a copy of the notice to the homes of all persons who are presently employed by it at its Fort Smith terminal as well as to the employees discrimina- torily terminated. This is necessary to insure that employ- ees may be able to read and fully absorb the notice at their leisure and away from their workplace which was the site of the unlawful conduct. It is also necessary in order to inform employees more directly and effectively of the flagrant misconduct of Respondent and the Board's remedy thereof.19 Secondly, it is my judgment that the facts in support of the findings herein as to the discriminatory termination of the union supporters and the Respondent's refusal to bargain are so overwhelming that there is a substantial likelihood that these findings will be affirmed on any subsequent review. It is also my judgment that the Respondent's refusal to bargain and failure to fully reinstate the employees who unanimously selected the Union as their bargaining representative in the circum- stances of this case frustrate the remedial purposes of the Act. The passage of time tends only to reward Respon- dent's undertaking to destroy the Union's representative status. See Gissel, supra, 395 U.S. at 610-611; and see Trading Port, supra, which establishes the date of the bargaining obligation. Accordingly, I shall recommend that the Board include in its final order in this case an authorization and direction that the General Counsel seek temporary relief, under Section 10(e) of the Act, to secure the immediate reinstatement of discriminatorily discharged union supporters and the immediate commencement of bargaining.20 Finally, because Respondent urged as a defense to its wholesale termination of union supporters its purchase of the Carter operating authority and cessation of operations of Fort Smith Cartage, because it urged an ICC require- ment in support of its conduct, and because that sister agency has pending before it the application for permanent authority to operate Carter's authority, I will recommend that the Board file a copy of its Decision with and make available the entire record in this proceeding to the Interstate Commerce Commission for it to determine (I) whether Respondent adequately protected the interest of all employees-not only those of Carter who were involved in the Carter-Woodline lease arrangement, but also il Although three employees were subsequently recalled to work it is unclear whether they were reinstated fully to their former jobs. There is some evidence that at least one was not assigned a regular shift; and there is also evidence that they were recalled because they promised not to engage in future union activity. Accordingly, I do not consider that these employees were properly reinstated and I shall include them in the remedial order. "' See The Lora)y Corporation, 184 NLRB 557, 558 (1970); M.FA. Milling Compane. 170 NLRB 1079, 1080 (1968). In addition, I view the unfair labor practices as so serious, flagrant, and pervasive that I shall direct that the notice remain posted for I year instead of the usual 60 days. 2" See John Singer, Inc., 197 NLRB 88, 90(1972). 21 In this respect I note that James Keeling was a former Carter employee who was hired by Respondent and then discriminatorily Respondent's existing work force; 2 and (2) whether the violation of employee rights under Federal law as deter- mined in this case is relevant to a determination of whether Respondent is fit to operate Carter's authority on a permanent basis.22 Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 The Respondent, Woodline, Inc.; Marshall Wood; and Marshall Wood d/b/a Fort Smith Cartage Company, Fort Smith, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees regarding their union activity and that of other employees. (b) Discharging employees because they engage in union activities or support the Union. (c) Discouraging employees from support of or member- ship in the Union or other labor organizations by discharge or any other discrimination affecting their tenure or condition of employment. (d) Threatening employees with reprisals including termination or closure of the Fort Smith terminal because of their union activities or because the Union is selected as their bargaining representative. (e) Suggesting the futility of selecting a union as a bargaining representative. (f) Suggesting that employees engage in surveillance of the union activities of other employees. (g) Refusing to bargain collectively with the above- named Union as the exclusive bargaining representative of the employees in the appropriate collective-bargaining unit, as previously set forth herein. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all employees in the appropriate unit found above with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Offer to employees Lewis, Tuck, Mayfield, Dillen- beck, Spicer, Montgomery, Wolfe, and Keeling immediate and full reinstatement to their former jobs or, if those jobs discharged; in addition, Bob Lewis, another discriminatee, was a former Carter employee. 22 Cf. Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local No. 705, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Gasoline Retailers Association ofMerropolitan Chicago), 210 NLRB 210, 277 (1974); N. LR.B. v. The Millgard Corporation, 472 F.2d 166 (C.A. 6, 1972). 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 objections thereto shall be deemed waived for all purposes. 876 WOODLINE, INC. no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights, including but not limited to any and all raises given to employees since their termination, and make them whole for any loss of earnings in the manner set forth in this Decision. (c) 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 analyze the amount of backpay due under the terms of this Order. (d) Post at its terminal in Fort Smith, Arkansas, and mail to all present employees and to the employees discrimina- torily discharged copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, Marshall Wood and Scotty Douthit, shall be posted by Respondent 24 In the event that this 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 immediately upon receipt thereof, and be maintained by it for I year thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. IT IS FURTHER RECOMMENDED that, upon issuance of the Decision of the Board in this matter, the General Counsel immediately seek interim relief under Section 10(e) of the Act to enforce the bargaining and reinstatement provisions of this Order and that the Board cause the Decision and record in this proceeding to be filed with the Interstate Commerce Commission. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 877