Gogin Trucking

GOGIN TRUCKING Gerald G. Gogin d/b/a Gogin Trucking and Team- sters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 30-CA-3523 May 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On November 24, 1976, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a brief in support thereof; Respondent filed cross-exceptions and a supporting brief; and the General Counsel filed a reply brief. 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, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Gerald G. Gogin d/b/a Gogin Trucking, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The General Counsel and Respondent have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In sec. Ill. C. of his Decision, the Administrative Law Judge stated that Respondent's owner, Gogin, initially met with his city dnvers on January 18, 1976, whereas the record clearly indicates that such meeting was held on January 20, 1976. This apparently inadvertent error. however, is insufficient to affect the results herein. 2 Respondent has excepted to the Administrative Law Judge's conclu- sion that it violated Sec. 8(a)l) by interrogating employee Scutchfield on the ground, inter alia, that such a violation was not alleged in the complaint. We find this exception without merit. Although the complaint did not specifically, allege such a violation, the issue was fully litigated at the hearing and the record fully supports the Administrative Law Judge's conclusions. Accordingly. we adopt the Administrative Law Judge's finding of a violation in this regard. We agree with the Administrative Law Judge's conclusions that Respondent violated Sec. 8(aXS) and (1) by refusing to meet and bargain with the Union after extending recognition to it and. subsequently, by 229 NLRB No. 18 withdrawing such recognition. We therefore find it unnecessary to pass or rely on the Administrative Law Judge's additional conclusion that a bargaining order herein also would be warranted under N.L. R.B v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on May 24 and 25 and June 28, 29, and 30, 1976, at Milwaukee, Wisconsin, pursuant to a charge filed by Teamsters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, on February 18, 1976, which was served on Respondent by registered mail on the same date; an amended charge filed by the Union on March 10, 1976, which was served on Respondent by registered mail on the same date; a complaint and notice of hearing issued by the Regional Director for Region 30 of the National Labor Relations Board on March 30, 1976, which was thereafter duly served on Respondent and an amendment to the complaint by the same Regional Director on May 19, 1976, which was also duly served on Respondent. The complaint, as amended, alleges that Respondent violated Section 8(a)(1) of the Act by threaten- ing to terminate its over-the-road trucking operations if its over-the-road truckdrivers become unionized and by interrogating an employee as to whether or not he signed a union card; that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Daniel Hawver on or about February 2, 1976, by laying off Robert Laise on or about February 4, 1976, and, after recalling Laise, by discharging him on May 14, 1976, all such discharges and the layoff allegedly being because of the union activity of the employee claimed to be discriminated against; and that Respondent violated Section 8(aX5) and (1) of the Act by refusing, on and since January 26, 1976, to bargain with the Union as the exclusive bargaining representative of Respondent's employees in an appropriate unit of truckdri- vers. In its answer to the complaint, which was also duly served or amended on the record at the hearing, Respon- dent has denied the commission of any unfair labor practices. For reasons which appear hereinafter I find and conclude that Respondent has violated the Act essentially as alleged in the complaint with the exception of the ultimate discharge of Laise, which I conclude was for cause. At the hearing the General Counsel and Respondent were represented by counsel. The parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing. Subsequent to the hearing, the General Counsel and Respondent have submitted excellent briefs which have been considered. 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record I in this case including the briefs and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent was, until April 1, 1976, a sole proprietor- ship. On and since that date it has been incorporated. Respondent is engaged in the business of a contract carrier of glass and other products from its terminals in Milwau- kee, Wisconsin. During the course of the calendar year preceding the issuance of the complaint, a representative period, Respon- dent sold trucking services valued in excess of $50,000 directly to customers located outside the State of Wiscon- sin. During the same period of time, Respondent pur- chased goods valued in excess of $50,000 from firms located within the State of Wisconsin which, in turn, purchased those goods directly from points located outside the State of Wisconsin. The complaint alleges, the answer admits, and I find that at all times material herein Respondent is and has been an employer, as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that at all times material herein the Union has been and is now a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Hierarchy The complaint alleges, the answer admits, the parties stipulated, and I find that the following individuals listed below occupied the positions set opposite their names, and at all pertinent times herein (with the exception noted as to Balistreri) were supervisors within the meaning of Section 2(11) of the Act. Gerald G. Gogin James Pope Daniel Balistreri Mark Paulbicke Dave Schneider Owner General Manager Dispatcher 2 Dispatcher Dispatcher The General Counsel further contends, inter alia, that James Fay is a supervisor within the meaning of Section 2(11) of the Act. I agree. Fay, who works part time, is a weekend dispatcher and is salaried like other dispatchers (whereas the drivers and mechanics are hourly paid). Fay, in his dispatching duties, has the authority to call men in to work on weekends if the need arises and may send a man home if he is not I Certain errors in the transcript have been noted and are hereby corrected. 2 Until March 1976 when he became a truckdriver. performing his job.3 This combination of authority places him in substantial control of Respondent's operations when he is engaged as a dispatcher on weekends. While Fay also may perform local truckdriving duties on weekends and unload trucks by hand during the middle of the week, I find, on the basis of his authority as a weekend dispatcher, that he regularly has the authority to assign employees and to discipline them in a manner requiring the exercise of independent judgment and that he is therefore a supervisor within the meaning of Section 2(11) of the Act. B. Some Details in Respect to Respondent's Business Operations Respondent is primarily engaged in local cartage operations in the vicinity of Milwaukee, Wisconsin, but it also handles interstate pickups and deliveries in Illinois and Wisconsin on its own authority or the authority of its customers. Shipping on the customer's authority is called a trip lease. It derives most of its revenues from the shipment of glass products (largely new empty beer bottles) manu- factured by Midland Glass. Britton Motor Service and Dart Transport bring the bottles in trucks to Respondent's First Street (Milwaukee) yard. Respondent's local or city drivers then haul these trailers to the Pabst, Schlitz, and Miller breweries in Milwaukee, unload the bottles and bring the empty trailers back to Respondent's yard. Respondent has also hauled outbound cases of beer sometimes on piggyback trailers for the Chicago North Western Rail Company (hereinafter the CNW Railroad). Another source of revenue to Respondent is the hauling of damaged pallets from the breweries to a firm named Reclaimed Pallets which repairs them. Respondent maintains a garage and office at Flagg Street in Milwaukee some 14 miles from the First Street location. C. Sequence of Events Prior to January 1976, it does not appear that Respon- dent's employees were represented by any labor organiza- tion. In the middle of January 1976, 4 a driver from Respon- dent attempted to deliver a load of bottles to the Pabst brewery but was told that Respondent was not going to be permitted to pull in or out of Pabst Brewery (as it had been doing prior to that time). On hearing this, dispatcher Paulbicke telephoned Pinzer, Pabst's warehouse supervisor. Pinzer told Paulbicke that Pinzer had instructions not to handle any Midland glass (which Respondent delivered to Pabst) because of a union problem. Pinzer spoke with Paulbicke again later and told Paulbicke that Respondent had been replaced by Donahue, a carrier which was union. Paulbicke then contacted Gerald Gogin and advised Gogin what had occurred. Gogin contacted a representa- tive of Midland Glass who confirmed what Paulbicke had told Gogin. Gogin also learned at this time that Respon- dent could no longer make deliveries for the CNW Railroad. 3 Gerald Gogin so admitted. 4 All dates appearing hereinafter occurred in 1976 unless otherwise noted. 530 GOGIN TRUCKING Distressed over this loss of business, Gogin contacted his general attorney, Hauer, who is not a specialist in labor relations, and outlined the problem. Hauer, in turn, contacted Mike Ropella, a labor specialist, who advised, inter alia, that Gogin should discuss the matter with his employees. Hauer relayed these instructions to Gogin who called a meeting of his city drivers on January 18. Present at the meeting for management were Gogin, James Pope, Donald Knaak (Respondent's bookkeeper), and Balistreri (then still a dispatcher). The city drivers in attendance were Ken Doughty, Bob Jennings, Mike Downey, Dan Hebert, Bob Laise, Dave Schultz, and Jay Gogin (Gogin's son). No over-the-road drivers were present. Gogin began the meeting by advising the employees that Respondent had been shut out of Pabst and CNW Railroad, apparently because of Respondent's nonunion status. He then asked the employees their opinion. Laise asked if "the Union" would talk to the employees. To this Gogin responded by outlining his understanding of what the employees could do if they were interested in joining a union. He said they could sign a petition for the Union to talk to them. The Union would then speak with the employees and put the matter to a vote. The pros and cons of joining a union and its effect on business opportunities were then discussed. In this discussion Gogin made it clear that the choice of joining or not joining a union was up to the employees. Because Gogin had to take a phone call in the middle of this meeting the employees left the office and repaired to Respondent's shop where they continued the conversation. At this time they decided to contact the Charging Party, the Union herein. After Gogin's call was completed the employees returned to the office and told Gogin of their intention to send a petition to the Union. A petition was then typed by Balistreri (using the ideas of the employees). It was also signed by them and given to Laise to be mailed to the Union. The petition stated, "We would be interested in information on what your organization has to offer us." Laise was selected to handle the matter and to talk with the Union later because he worked nights and would be available to speak to the Union during the day.5 On January 23, Laise went to the Union's office where he met with Raymond Fularczyk, the Union's business agent. Laise advised Fularczyk that Laise represented Respon- dent's drivers and that the drivers would like to be "recognized." Fularczyk gave Laise authorization cards and told Laise to have the drivers fill them out. When Laise told Fularczyk that Respondent also employed over-the- road truckdrivers, Fularczyk suggested that they too be signed up.6 5 The findings as to what occurred at the meeting are based on a composite of the testimony of all the witnesses who testified in respect to the meeting and particularly the notes Balistreri made as to what transpired when the meeting was going on. 6 These findings are based on the credible and generally corroborative testimony of Laise and Fularczyk in this regard except as to the date which is based on the testimony of Laise, who was more certain on the point than was Fularczyk. 7 The findings as to this incident are based on the credible testimony of Scutchfield in this regard as admitted by Gogin. Respondent concedes the On that same day, January 23, Laise went to Respon- dent's Flagg Street office where he encountered Gerald Gogin and Balistreri. Gogin asked Laise if Laise had been to the union hall. Laise responded that Laise had just returned, was in possession of authorization cards for the drivers to sign, and wished to have a meeting with them. Gogin told Laise that Gogin could use the First Street office for this purpose. Laise then took a tractor to First Street where he asked Fay for the telephone numbers of both city and over-the-road drivers. Fay gave Laise the numbers for the city drivers but told Laise that Laise would have to get the numbers for the over-the-road drivers from the Flagg Street office. Laise telephoned Gerald Gogin at the latter location and asked for these numbers. Gogin advised Laise that the over-the-road drivers didn't have anything to say about the Union and that it was only for the city drivers. On the evening of January 23, Laise gave a union authorization card to Stacey Scutchfield, an over-the-road driver, who executed it in Laise's presence and returned it to Laise. Fay was nearby when this solicitation and card signing took place. After giving his completed card to Laise, Scutchfield went to the Flagg Street office where he was met by Gerald Gogin. Gogin told Scutchfield that he had heard that Scutchfield had been approached and he asked if this was true. Gogin advised Scutchfield that there was no way that his over-the-road drivers would be allowed to go union. Gogin stated he would sell his trucks before he would allow it. Gogin also said that he would transfer Scutchfield to the city operation if this occurred.7 Still later that same evening Laise gave an authorization card to Les Phillips, another over-the-road driver, who executed the card and returned it to Laise at that time. Also during that evening Gerald Gogin telephoned Dan Hawver, another over-the-road driver at the latter's home. Gogin said he had consulted his lawyer and that he knew what he was going to say was wrong but he was going to say it anyway. Gogin then related to Hawver that there was no way Gogin's over-the-road operations were going union, that they were separate from the city operations, and that he would fire his drivers and hire brokers to pull freight. Hawver responded by telling Gogin that he would not vote for the Union because of a favor Gogin had done for him previously. Gogin assured Hawver that if the over-the-road operation was eliminated Hawver would be transferred to a city driving job.8 However, after Hawver discussed the matter with his wife, Hawver changed his mind about "voting" for the Union. On the next morning, January 24, Laise met with Hawver and Scutchfield and various city drivers at a local restaurant. Laise advised those present that the cards credibility of Scutchfield in its brief. I concur and will credit his testimony throughout this Decision. He testified in a straightforward. exemplary manner. He is also disinterested in the outcome of these proceedings to the extent that he is no longer employed by Respondent - having resigned to take a better job prior to the hearing. s These findings are based on the credible testimony of Hawver in this regard, as essentially admitted or not denied by Gogin. Respondent's threat to employees on January 23 that it would shut down its over-the-road operations, if they became unionized. is alleged as a violation of Sec. 8(a)(l). 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be signed by anyone interested in being represented by the Union or being "recognized" by the Union. Each card indicates that the purpose of the card is to authorize the Union to be the employees' bargaining representative.9 At this meeting Laise himself, Hawver, Robert Jennings, John Irwin, Michael Downey, and David Schultz signed authorization cards, Laise retaining his completed card and the others returning theirs to him at the same meeting. All the signers were city drivers except Hawver. After separate solicitations on January 26 city drivers Ken Doughty and D,anny Hebert signed cards in Laise's presence and returned them to him on the same day. Also on January 26 Laise took all of the foregoing executed union authorization cards to the union hall and gave them to Fularczyk. Fularczyk told Laise that the Union would send a letter to Respondent advising it that the Union represented a majority of the employees and would sit down to bargain. On January 26, the Union did indeed send a letter to Respondent. This letter was mailed by registered mail and the receipt was signed by Gogin's son on January 27. The letter informed Respondent that the Union represented a majority of Respondent's employees and went on to demand recognition in a unit of drivers excluding "office clerical, salesmen, guards and supervisors." The letter requested that Gerald Gogin meet with Respondent on January 29 for the purpose of negotiations but that if such date proved inconvenient the Union desired to be notified so that another date could be agreed upon. The Union offered Respondent the opportunity to have a neutral person check the Union's authorization cards at the time of the meeting for the purpose of verifying the Union's majority status. The letter was signed by Fularczyk on behalf of the Union. On January 28 Hauer, Respondent's general attorney, telephoned Fularczyk. Hauer told Fularczyk that Gogin had told Hauer to take the necessary steps, that Respon- dent recognized the Union but that neither Gogin nor Hauer would be available on January 29. Fularczyk pressed Hauer for a prompt meeting but Hauer said he had 9 These findings are based on the testimony of Laise as essentially corroborated by Hawver. I will comment later on the credibility of Hawver. I do not credit the unsure and uncorroborated testimony of Downey that Laise told the employees he did not think that signing the cards meant the employees were going union but the cards were just to see what the Union had to offer "or something to that effect." " These findings are based upon the credible testimony of Fularczyk in this regard as partially corroborated or not denied by Hauer. In its brief Respondent attacked the credibility of Fularczyk based on what Respon- dent describes as Fularczyk's condescending demeanor and the excitability and irritability he demonstrated on the stand. Much of what Respondent says about Fularczyk's demeanor while testifying is true. However, in all the circumstances. I nonetheless credit Fularczyk. These circumstances include not only the immediate subsequent exchange of letters between Hauer and Fularczyk but a full evaluation of the testimony of Hauer in respect to the matter of Respondent's recognition of the Union. Hauer began his testimony in this regard by hedging - saying that he had a mental reservation in dealing with a person of this type (meaning Fularczyk). Hauer admitted that he said he would be handling any negotiations which would take place. He also admitted asking for contracts to be sent to him by the Union. Significantly he did not deny Fularczyk's assertion that he, Hauer, said that Respondent "recognized" the Union - he merely said he could not recall any such conversation. This, of course, creates no credibility issue on this specific point. Further, while Hauer claimed that he did not see and was not aware of Fularczyk's letter of January 26 (in which the recognition demand was to be in Washington, D.C. Fularczyk accepted this explanation and advised that he would send Hauer a letter verifying the telephone conversation. Hauer also asked Fularczyk for contracts during this telephone call.10 On January 28, Fularczyk sent Hauer a letter enclosing copies of union contracts and explaining that this was being done inasmuch "as you [Hauer] have explained to us that you are the representative who will be negotiating the labor contract on behalf of Gogin Trucking." The letter added that negotiations would take place in the union office on February 6. Also on January 28 Hauer sent a letter to the Union to Fularczyk's attention saying "this will confirm that I will be negotiating the contract for Gogin Trucking." Hauer's letter added that Hauer would call on February 6 to arrange a time to meet that day. On January 29 Hawver and Scutchfield went to Respon- dent's Flagg Street office where they were confronted by Gerald Gogin, Balistreri, and Pope. Gogin asked Hawver if Hawver had signed a union authorization card. Hawver admitted that he had. Gogin then left." On January 30, Laise had a dispute with Fay and Pope over Respondent's ability to respond to requests for service on that day. Pope criticized Laise on this occasion for a poor work attitude. On February 2 Hawver was discharged by Gerald Gogin. His discharge is alleged to be a violation of Section 8(a)(1) and (3) of the Act. Respondent did not meet with the Union on February 6 to negotiate a contract as the Union had requested in its letter of January 28. On February 6, Laise was sent a letter by Pope advising Laise that Laise was being laid off effective February 4 "due to lack of businees." This layoff is alleged by the complaint to be violative of Section 8(a)(1) and (3) of the Act. On or about February 9, Respondent resumed making deliveries to Pabst. made) until long after these events, I conclude that he had been apprised of the contents of the letter. For he did not deny Fularczyk's testimony that he, Hauer, stated in the telephone conversation that neither he nor Gogin would be available on January 29 - the date on which the letter had requested a meeting. Hauer also admitted that he told Fularczyk, as Fularczyk stated, that Hauer would be making a trip to Washington. It is likewise noteworthy that Hauer called Fularczyk (the signer of the Union's January 26 letter) and no other representative of the Union, yet there is no indication in this record that Fularczyk had previously been identified to Hauer, who, as I have found, is not a labor lawyer. The exchange of letters on January 28 - which will be described and which confirms the telephone call of that date -- are also consistent with Fularczyk's testimony. Thus both Fularczyk's letter and Hauer's note that Hauer would negotiate the contract for Respondent. Neither letter qualifies Hauer's appearance in that role on the condition "if' such negotiations ever occurred - a condition Hauer claimed he averred in the telephone conversation. Finally, since Hauer's letter of January 28 conceded that "I [Hauer] will be negotiating the contract" for Respondent and inasmuch as recognition is the logical and necessary prerequisite to labor negotiations. I conclude that Hauer did indeed tell Fularczyk in the instant telephone conversation that Respondent was recognizing the Union. My finding as to the date of the telephone conversation accords with the date of the confirmation letters. " These findings are based on the credible testimony of Hawver in this regard, as corroborated by Scutchfield and admitted by Gogin. This incident is alleged by the complaint to be a violation of Sec. 8(a)(1). 532 GOGIN TRUCKING On or about February I I Gerald Gogin consulted a new attorney, Russ R. Mueller, who later represented him in these proceedings. Again on or about February 11, Gogin held a meeting of his city drivers which was also attended by over-the-road driver Scutchfield. Gogin told those present that he was having monetary or labor problems and that he wanted everyone to do what he felt was right. Gogin stated that if the employees wanted a union, he would negotiate with it. He also said he was behind them 100 percent if they didn't want a union. He continued that he was about to hire an attorney to handle the matter. Mark Paulbicke, who was in attendance, stated that the employees would ultimately have the opportunity to vote by secret ballot whether or not they wanted a union. Scutchfield then asked Gogin what would happen if the employees went on strike. Gogin stated that the Company would continue operations and the striker would no longer be considered an employee. Jennings, a driver, asked Gogin what would happen if the employees did not go union. Gogin replied that he and Pope had been working on new rules and regulations for the Company but had set the matter aside when the union problem arose. The content of these new "rules and regulations" was not specified. Gogin further stated that, after that night, there would be no further over-the-road operations and that the over-the-road drivers would be incorporated into the city.'2 Scutchfield, who had been an over-the-road driver prior to February 12, then went on city duties including unloading by hand at Pabst. He later resumed over-the- road duties in March. On February 12 Mueller wrote Fularczyk a letter in which Mueller advised that he had been retained by Respondent. Mueller's letter noted that Mueller was in possession of the Union's (above-mentioned) letter of January 28, in which the Union "implicitly" stated that it had been recognized by Respondent. Mueller's letter commented that the Company had not voluntarily extend- ed recognition to the Union as the "legitimate and authorized bargaining agency for the Company's employ- ees." Mueller's letter concluded that in view of the Union's instant letter Respondent would be filing a petition for an NLRB-conducted secret ballot election with the Regional Office. The complaint alleges that Respondent, in violation of Section 8(a)(l) and (5) of the Act has refused to bargain with the Union since January 26 and that, after granting recognition on January 28, Respondent has refused to honor that recognition. An election petition was mailed by Mueller to the Regional Director on February 12, being received on February 13 and docketed as Case 30-RM-349. This petition was later dismissed by the Regional Director in a letter dated April 2 because of the blocking 8(a)(l) and (5) charge (in the present unfair labor practice case), which was filed by the Union on February 18. On April 14 Respondent filed a request for review of the dismissal by 12 These findings are based on the credible testimony of Scutchfield in this regard, as corroborated or not denied b) Gerald Gogin. 13 These findings are based on the credible and undisputed testimony of Laise and Scutchfield in this regard. the Regional Director of Respondent's petition. The Board denied the request for review on April 28. Meanwhile, on March 12, Laise telephoned Pope about returning to work. On March 15 Laise met with Gerald Gogin and Pope. In this meeting Laise was told he would be recalled to work performing unloading by hand at Pabst. This meeting proved to be acrimonious and Respondent warned Laise about his attitude. He began working the next day. On March 22 Laise returned to local truckdriving duties. In April a meeting occurred at Respondent's First Street location between the city drivers and Gerald Gogin. Also present were Pope and dispatcher Schneider. Gogin stated he was apprehensive about the Union. He said that drivers had come to him saying that they did not realize what they were signing when they executed their union authorization cards. He said one employee was leading the rest around by the nose. Laise asked if this meant himself and Gogin responded "if the shoe fits" whereas Pope came right out and accused Laise of leading the drivers around. The drivers then presented a list of their own demands in lieu of a union contract. Pope took the list and said that he would show it to Respondent's attorney. Gogin also stated that he heard there would be a meeting of the drivers with the Union that evening and he urged them to attend 100 percent.t 3 It does not appear that Respondent took any action in response to the employees' list of demands. On that same evening in April a meeting was held at the union hall between Jerry Sprague for the Union and Respondent's city drivers. Sprague asked several questions about the earnings of the drivers. Sprague also inquired as to the drivers' disposition to strike Respondent in order to get it to the bargaining table. No driver stated his agreement with this proposal. All of the drivers except Laise asked to have their union authorization cards withdrawn from the Union's pile. They were withdrawn and set aside, but were not returned.' 4 After the meeting the drivers walked outside and discussed what had happened. The consensus was that, if Gogin did not respond to the demands they had presented him earlier that day, they could always go back to the Union. Near the end of April, Pope and Gogin met with Laise to discuss with him complaints received from Pabst and Reclaim Pallets about Laise's work. Pope warned Laise about the recurrence of any such complaints. Laise assured Pope and Gogin that Laise wanted to keep his job with Respondent.' 5 On or about April 29 Laise asked for a leave of absence from Respondent but no determination was made at that time because Pope said he wished to speak to Respondent's attorney. Laise then went to work for a different company, Ristow Trucking. On May 6 Pope denied Laise's request for a leave of absence and asked Laise at the same time whether Laise was working for Respondent or Ristow. Laise responded 14 These findings are based on a composite of the testimony of Laise. Downey, and Hebert in this regard. Sprague did not testify. 1i These findings are based on a composite of the testimony of Laise and Pope in this regard. 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he would work for whichever company called him first. On May 10 Laise quit his job at Ristow. Over the night of May 12-13 Laise worked for Respon- dent taking trailers to Pabst to be loaded with full beer bottles. Pabst complained to Respondent about his conduct on that evening - a complaint which will be discussed more fully in my concluding findings. On May 14 Pope discharged Laise in the presence of Gogin. Laise's discharge is alleged to be a violation of Section 8(a)(3) and (1). Concluding Findings The Alleged Independent Section 8(a)(l) violations As I have found, Gerald Gogin told Hawver in a telephone call on January 23 that there was no way that Gogin's over-the-road operations would be unionized and that Gogin would shut them down before he permitted it. In this atmosphere of coercion Gogin, as I have further found, asked Hawver on January 29 if Hawver had signed an authorization card. Respondent defends that Gogin's foregoing interrogation of Hawver could not be considered coercive because Respondent purportedly favored the Union and Hawver had been promised a city job if the over-the-road operations were eliminated. I reject these contentions. For Respondent clearly opposed the unionization of its over-the-road drivers - of whom Hawver was then one - and the promise to find a job for Hawver was given after Hawver assured Gogin that Hawver would not support the Union. Gogin learned that Hawver reneged on this promise when Gogin interrogated Hawver. As I have further found, Gogin, on January 23, asked Scutchfield if he had been approached. In this same conversation Gogin told Scutchfield, as he had told Hawver, that he would shut down its over-the-road operations before it would permit them to become union. While Gogin promised to transfer Scutchfield to the city operation when the shutdown occurred Gogin did not offer to continue Scutchfield's over-the-road wages nor assure him that no other harm would be visited upon him for joining the Union (indeed Scutchfield, who was later transferred to city work in February, still later in March asked to be returned to over-the-road driving for monetary reasons).16 Nor was any assurance given to Scutchfield that another over-the-road driver, Phillips, would be retained. In all these circumstances, I conclude that Gogin coercively interrogated Scutchfield on January 23 and Hawver on January 29 in each instance in violation of Section 8(a)(l) of the Act. I further conclude that by threatening both Hawver and Scutchfield on January 23 that Respondent would close down its over-the-road 16 According to Scutchfield's credible and unrebutted testimony. 1? The General Counsel argues that I should find a further violation of Sec. 8(a)( ) on the basis of what he says were Gogin's promises of benefit to employees at a company-employee meeting (apparently the one of February II), although no such allegation appears in the complaint. The General Counsel further urges that this matter was fully litigated. I do not agree that operations before letting them go union, Respondent further violated Section 8(a)(l) of the Act.'7 The Discharge of Hawver Hawver was terminated by Respondent on February 2. Hawver, who had been employed by Respondent since February 1972, was its oldest over-the-road driver in terms of service at the time of his discharge - although Phillips had been employed in both city driving and over-the-road for a longer period. Hawver, it may be recalled, was told by Gogin on January 23 that Gogin would shut down the over-the-road operations if they became unionized. In response to this threat Hawver at the time promised Gogin that Hawver would not join the Union because Gogin had done Hawver a favor in the past. Hawver changed his mind, however, and signed a union authorization card on January 24, a matter of which Gogin learned when Gogin interrogated Hawver on January 29. Hawver's discharge, on February 2, came at about the same time as Scutchfield, another over- the-road driver, was transferred to city driving duties (on February 11). Respondent defends that it discharged Hawver on February 2 because of a complaint Respondent received on Hawver from Norlander, the terminal manager of Britton Motor Service about the way Hawver had acted in early January when Hawver had made a delivery at Brockway Glass on a Respondent trip lease for Britton. This matter, according to Respondent, came to the attention of Balistreri, when Balistreri spoke with Norlander in an attempt to drum up some trip lease business with Britton. Norlander refused such new business because, he said, Brockway had cut out Britton by reason of the Hawver incident. After Balistreri reported Norlander's comments to Gerald Gogin, Gogin discharged Hawver. I reject this defense. Hawver, according to his undisputed testimony had arrived at Brockway about 5 or 5:30 p.m. about January 12 or 14. A dispute arose about Hawver getting unloaded because the employees had left for the day to go bowling. Hawver called Pope, who asked Hawver to see if he could get unloaded and to call back when the matter was decided. The employees returned from the bowling alley and Hawver was unloaded about a half hour later and Hawver telephoned this information back to Respondent (Hawver spoke to Knaak, the bookkeeper). Norlander admitted that he reported the incident to Gogin and Balistreri on January 14. While the matter may have come up again when Balistreri tried to drum up business on January 30, it had already been reported on January 14 but no action was taken against Hawver at that time. Significantly, between January 14 and 30, Hawver, an over-the-road driver, had joined the Union against Gogin's wishes and contrary to his promise to Gogin. it was fully litigated. But even if I did, there is no showing that the "new rules and regulations," which Gogin mentioned at that meeting and said he had been working on for Respondent until the union issue arose, would indeed have worked any beneficial change in the employees' working conditions. 534 GOGIN TRUCKING It is true, of course, that Respondent did not get any more trip lease business from Britton for a time. However, it is also true that Gogin, as he admitted at the hearing, never checked Hawver's story with Brockway Glass. Gogin's failure to do so when the incident occurred indicates that the matter was then of little concern to him. His subsequent failure to check the story on or about January 30 suggests that he was seizing it as a pretext upon which to discharge Hawver where the real reason lay elsewhere. Moreover, if Gogin had talked to Brockway, Respondent and Britton may well have returned to Brockway's good graces - assuming they lost them. For after the Board agent interviewed personnel of Brockway, Brockway began to give Britton business again and Britton, in turn, gave one trip lease to Respondent.1 8 Britton in any event has continued at all times to use Respondent for local cartage work except for the Pabst interruption in late January and early February, heretofore described. I conclude from the foregoing that the true motivation behind Gogin's discharge of Hawver was the fact that Hawver had joined the Union. I further conclude that by terminating Hawver for this reason Respondent violated Section 8(a)(l) and (3) of the Act. '9 The Layoff of Laise Laise was hired on October 7, 1975, as a city driver and he worked in that capacity until he was laid off on February 6, 1976, effective February 4. Laise's union activities were hardly a secret to Gerald Gogin. Laise was commissioned by his fellow employees in the presence of Gogin on January 20 to be their emissary to the Union to inquire what it could do for them. This function and Laise's later efforts to organize the city drivers were not opposed by Gogin. What was opposed was Laise's successful organization of the over-the-road truck- ers as well. Gerald Gogin told Laise in a telephone call on January 23 that the over-the-road drivers would not be organized but that only the city drivers would. He told Hawver and Scutchfield - both over-the-road drivers - that same day that he would shut down his over-the-road operation before he would permit it to be organized. However, he learned from Scutchfield, on January 23, and from Hawver, on January 29, that both had joined the Union. Laise's successful solicitation of Scutchfield on January 23 was witnessed by Fay, whom I have found to be a supervisor within the meaning of the Act. According to Respondent, Laise was laid off for economic reasons due to the temporary loss of the Pabst business (which would have given work to at least two 5R Norlander credibly so testified. 19 In its brief, Respondent attacks the credibility of Hawver on the basis of certain claimed discrepancies in his affidavit. In one instance, dealing the Gogin's interrogation of Hawver, Hawver testified at first that Gogin asked him if he signed an authonzation card, whereas the affidavit stated that Gogin asked Hawver how he voted. This distinction is miniscule. Moreover, both Gogin and Scutchfield confirmed that Gogin asked Hawver if he signed a card, as he testified. Another alleged discrepancy dealt with a matter Hawver testified to, which occurred at the end of a January 23 telephone conversation. This matter was not mentioned in the affidavit. The failure to mention it in the affidavit falls short of a contradiction with testimony. The other alleged discrepancy deals with a variation between employees, viz, the Donahue Trucking Company, Respon- dent's replacement at Pabst, utilized the services of two employees for what had been Respondent's work at Pabst). Schultz was also laid off at the same time but his layoff is not alleged to be an unfair labor practice. Consequently insofar as the layoff, qua layoff, is concerned, Laise was not discriminated against.20 The question before me is whether Laise was discrimina- torily selected for layoff. Pope, who made the decision to layoff Laise, in consultation with Gerald Gogin, testified that in determining who should be laid off he used as his selection criteria time of service and ability. Time of service need not detain us. For Jennings, who was hired after Laise (in January 1976), was retained while Laise was laid off. Pope further explained his selection of Laise as being based on his all round ability to do the work of Respondent, i.e., that Laise had several customer com- plaints against him, Laise would not do unloading by hand, Laise had complained about equipment and Laise had several arguments with dispatchers. Laise admitted that he did not like to do unloading by hand. There is no showing, however, prior to February 4 that he ever refused to do it. Laise's only complaint about equipment specified by the record is his refusal to drive an unsafe truck. But such a refusal was in Respondent's interest as well as that of Laise because of legal liabilities attaching if Laise had continued to drive the truck and had had an accident because of the disability of the truck. The only argument between Laise and the dispatchers, which is specifically demonstrated by the record as occurring before February 4, is a dispute which occurred on the night of January 30 where enough drivers were not present to cover calls to Respondent. The argument derived from the fact that Laise knew the calls would be expected but had not brought this to the attention of management. However, it was not Laise's responsibility to do this. And it was Fay's job that night to be sure that the operation was covered. The only customer complaint shown to have occurred before February 4 (it occurred in 1975) dealt with an argument which Pope was told that Laise had with a supervisor at Wis Pack. Laise explained that he had asked Gogin and Pope after this incident not to make Laise drive for Wis Pack because Wis Pack (where Laise had once been employed) had spread an ugly personal rumor about Laise. According to Laise's undisputed testimony, he did not return to Wis Pack after this incident.2 1 This incident may also relate to an event (the only one testified to with certainty by Ten Broek, general manager of Wis Pack) where Laise refused to make a delivery Hawver's affidavit and his testimony in respect to what was said in the confrontation between Gogin and Hawver when he was discharged. In both versions the essential fact that Gogin or Hawver pointed out that Hawver had had disputes with customers on other occasions remains the same. It found Hawver to be a credible witness who testified in a generally straightforward fashion. In all the circumstances I attach no weight to the testimony of Gogin that he did not terminate Hawver because of his union activities. 20 Although Respondent had never previously laid off any of its drivers. 21 Pope admitted that this matter was resolved. after a discussion with Laise. on the basis that Laise would not be given any further assignments at Wis Pack. 535 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of his stated fear of being struck by rocks at the location of the delivery where a strike was going on. Whatever happened at Wis Pack it was not of sufficient moment to be recorded in Laise's personnel file and was resolved after a discussion between Laise and Pope. Nor were there any other documents in that file bearing a date earlier than February 6 except, apparently, his application for employment. Moreover, when Gogin addressed his employees, including Laise at the meeting on January 20, he stated that the employees did good jobs and that he had "no complaints with the employees." 22 After Laise was laid off Schultz, also junior to him, was recalled before him. Although Respondent's Pabst work resumed on or about February 9 and, as I have found, required the services of two employees, Laise was not recalled until March 16. The latter date is after the charges herein were filed. In all the circumstances - including Pope's admission that length of service was used by him as a criterion for layoff - I conclude that Laise, who was senior to Jennings, was selected for layoff out of seniority because of his union activities, particularly his organization of the over-the-road truckdrivers - of which Gerald Gogin knew and to which he was strongly opposed. I further conclude that by laying off Laise on February 6, effective February 4, and by failing to recall him until March 16, Respondent violated Section 8(a)(1) and (3) of the Act. 23 The Discharge of Laise Laise returned to work on March 16 after being interviewed by Pope and Gerald Gogin on March 15. Laise was discharged by Pope in the presence of Gogin on May 14. Laise's union activities continued to be a thorn in Gogin's side after Laise's recall. Gogin as much as said so when he told the drivers including Laise at their meeting in April, previously described, that they were letting one man lead them around by the nose. Pope identified this man as Laise. Gogin also demonstrated union animus in late March in a conversation with Scutchfield when he told Scutchfield that he did not want Respondent's drivers to end up with the bad attitude demonstrated by Britton's drivers who were unionized. 24 However, during the period of Laise's recall, there were a number of customer complaints against Laise. Consistent with them Respondent contends that the principal basis for Laise's discharge was his cumulative misconduct and/or poor employment record of which Laise's claimed miscon- duct on May 12-13 was the last incident. In the words of Pope, Laise's discharge was due to Laise's "attitude" and "customer complaints." It is my function to determine what was the true motivation for Laise's discharge. In all the circumstances, I agree with Respondent that Laise was discharged for cause. When Laise spoke to Pope and Gogin on March 15 about returning to work the meeting was acrimonious. Laise told Pope and Gogin that he would only work 8 22 Balistreri's notes of the meeting so reflect. 2: In the circumstances I attach no weight to Pope's self-serving testimony that Pope did not layoff Laise because of Laise's union activities. 2- According to the credible testimony of Scutchfield in this regard. hours, no more, no less. He also said he did not like loading by hand which was the job offered to him at that meeting. He was told at the time that Respondent did not like his attitude. He did, however, resume work on March 16 in the capacity of unloading trucks by hand at Pabst. Laise returned to truckdriving on or about March 22, carting pallets to be repaired by Reclaimed Pallets. On his first day on this assignment Laise told Corbett, Re- claimed's owner, that all deliveries would be made by 2 o'clock because this is when Laise was going to stop each day. Any deliveries after that time would have to be made the following day. Corbett told Laise that if deliveries had to be made they would be made.2 5 This matter along with another incident which apparent- ly occurred on or about April 19 was brought to the attention of Respondent in a letter dated April 27 from Corbett to Respondent. In respect to this other incident Corbett complained that Laise had not made a pickup of broken pallets at Miller Brewery, a failure which caused Corbett to send 17 men home because they had nothing to work on. There is some confusion in the testimony in respect to the second incident referred to in Corbett's letter not only as to the date of the incident but also to the sequence of events involved in it. Corbett placed the incident at or about April 25 or 26, whereas, according to Laise's driver log, he did no work for Reclaim after April 19. According to Corbett, Corbett went to Miller's shortly after 8 a.m. on the day in question and saw two trailers full of pallets waiting to be picked up by Laise; that Corbett had no backlog without these two loads and had to telephone to have his employees sent home about 8:15 a.m.; that he arrived back at his place of business at about 9 a.m., and saw Laise who said there were no loads at Miller's; that he told Laise there were two truckloads at Miller's and that he directed Laise to go get them but they did not arrive at Reclaim's yard until after 10 a.m. Laise testified that he went to Miller's on or about April 19, did not think the pallets there needed to be repaired hence went to Schlitz where he picked up a different load of pallets and delivered them to Reclaim at about 8:05 a.m. Laise continued that Reclaim's owner then asked him about the Miller pallets and, after checking with Respondent's dispatcher, Laise went back to get the pallets. According to one place in his testimony he got the Miller loads to Reclaim at 8:45 a.m., at another 9:45 a.m. (i.e., 15 minutes after he left Miller the second time at 9:30 a.m. to go back to Reclaim). This testimony cannot be reconciled. The date and times are at odds and, if Laise is to be credited, the Schlitz load was brought by him to Reclaim before the employees would have been sent home at 8:15 as stated by Corbett. Further the Miller loads would have arrived within a half hour or an hour and a half providing enough work (with Gogin admitted he does not like the attitude of the Bntton drivers, who he said he knew were union. 2" This is based on the credible testimony of Corbett as not denied by Laise. 536 GOGIN TRUCKING the Schlitz load) so that employees would need not be sent home that day or the next.26 Thus, if I believe Laise, Corbett's entire testimony as to this event would be pure fabrication. But I do not believe that it was. Corbett, unlike Laise, has no interest in the outcome of these proceedings. Corbett also testified in a straightforward, credible manner, whereas I found Laise to be defensive and argumentative when testifying as to his work record in April and May. 27 Nor do I find any indication of connivance between Corbett and Gogin. For, significantly, although Gogin and Pope warned Laise about this incident, he was not discharged as the result of it. I therefore credit Corbett's testimony except as to the date of this incident and discredit Laise's. I believe Laise has the incident confused with an incident on April 12 when, according to his log, he went to Miller, then to Schlitz and then to Reclaim and thereafter made several trips for Reclaim to its customers, without returning to Miller. All this suggests that since he went to Miller's first then to Schlitz there was nothing for him to pick up at Miller's but there was at Schlitz whence he drove to Reclaim. I therefore conclude that Laise had to be sent back to get the Miller loads and that he did not get them to Reclaim until after Reclaim's employees had been sent home. Gogin and Pope met with Laise on or about May I to discuss Corbett's letter of April 27. They also discussed with him at this same meeting a complaint from one Pinzer of Pabst who accused Laise of "smarting off" and asked that Respondent not send Laise back to make deliveries at Pabst. Pope warned Laise at this time about Laise's attitude and told Laise that Respondent couldn't put up with any conduct of Laise which caused complaints from Respondent's customers.2 8 Laise denied any wrongdoing at this meeting as indeed he did at the hearing in respect to both Pabst (in regard to this Pabst complaint) and Reclaim. Laise was discharged after another complaint by Pabst - this time as to his conduct on the night of May 12-13. The latter incident was extensively litigated at the hearing. In sum what occurred is as follows. Laise made two trips to Pabst on the night of May 12 in which he picked up loads of beer and returned them to Gogin's yard. I conclude, in all the circumstances, particularly the implications of his own testimony, that he received preferential treatment in getting loaded both times. When Laise returned for his third load about 11:30 p.m. the Pabst shift had changed and he dealt with a different dispatcher than on the previous two loads. This dispatcher, Budzynski, refused to give Laise preferential treatment. Laise became annoyed and demanded to be taken care of. Because of Laise's demands and complaints of drivers from other companies about Laise's bragging 26 A trailer load, according to Corbett. takes three-fourths of a day to repair using his whole crew hence the Schlitz load would take three-fourths of that day to work on and the two Miller loads would take the balance of that day and all of the next. 27 Although I found him generally credible elsewhere in his testimony, much of which is corroborated by other witnesses and the natural sequence of events. 21 A previous complaint from Wis Pack has already been discussed. A complaint about Laise had also been received from Miller's. that he got perferential treatment, Budzynski made several calls to Pabst's shipping department to report the matter to the shipping clerk, Klumb, and shipping foreman, Biele- feldt. The upshot was that Laise was told to wait his turn. When so told, Laise went to sleep in the drivers' room at Pabst without telling Budzynski where he was or leaving Budzynski a note. Budzynski then had to go find Laise when Laise's turn came up. When Budzynski spoke to Laise and asked Laise to tell Budzynski where he would be if the same situation ever occurred again, Laise, in effect, told Budzynski that Laise did not have to tell him where Laise was. Budzynski reported Laise's obstinance to Budzynski's superior, Ritchie, the next day.2 9 After obtaining his turn Laise went to the loading dock where he, Laise, by his own testimony, had a further argument with a Pabst official because Laise's own shift with Respondent would expire before he would be loaded. Laise got permission from Respondent's dispatcher to remain to get the load. Laise then went to the loading area where he raised still further complaints directly with shipping personnel, Klumb and Bielefeldt, as to why he, Laise, was not given preferential treatment. Laise's truck was eventually loaded, and he left Pabst about 4:20 a.m.30 Bielefeldt reported the matter to McGrath, Pabst's shipping superintendent the next day. Bielefeldt also told McGrath that during the course of the evening Bielefeldt had received complaints from drivers from other compa- nies asking why Laise was supposed to get loaded ahead of other drivers and that Laise had bragged that Laise could get loaded any time he wanted. McGrath called Gerald Gogin and told him that he would not stand for such conduct from a Respondent driver. Laise was discharged by Pope in the presence of Gerald Gogin on May 14. Pope told Laise that there had been complaints from Pabst and Reclaim about Laise's conduct only 2 weeks before and now another complaint had come from Pabst. Pope told Laise that Respondent would have to dismiss Laise. As can be seen from the foregoing, Laise was persona non grata at Pabst and Reclaim at least and by his own statement did not wish to do any work for Wis Pack. Counting only Pabst and Reclaim, this meant that Respondent could not use Laise to make deliveries to companies from which, according to the undisputed and credible testimony of Gerald Gogin, Respondent obtained about 60 percent of its business. On the basis of all the foregoing I am well satisfied that Laise was discharged for cause. The cause was his continuing poor work attitude about which he had been warned by Pope in his recall interview on March 15 and again on or about May I. This attitude was demonstrated by Laise's cavalier treatment of representatives of compa- 29 These findings are based on the credible testimony of Budzynski in this regard, as not generally disputed by Laise. To the extent they are I do not credit Laise. I have already commented on his credibility in respect to his job performance in April and May. 30 Bielefeldt credibly so testified without dispute. The time is from Laise's log. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nies with which or through which Respondent handles the majority of its business. In concluding that Laise was discharged for cause, I am not unmindful that Respondent maintained a continuing animus toward the union activities of Laise even after Laise's recall on March 16 as I have found. However, it is well settled that the union activities of an employee - even where opposed by his employer - do not insulate the employee from legitimate employer discipline or discharge for unacceptable performance.3 1 Laise's performance and particularly his work attitude were clearly unacceptable - if only for the reason that Respondent's customers could not tolerate Laise. I shall, accordingly, recommend that the allegations of the complaint in respect to Laise's discharge be dismissed. The Refusal to Bargain In support of its denial that it has refused to bargain in violation of Section 8(a)(1) and (5) of the Act, Respondent advances a number of contentions. Essentially, it urges that the unit in which the Union has demanded recognition is inappropriate. It further urges that, even if such a unit is appropriate, the Union is not the exclusive bargaining representative of the employees in that unit because its authorization cards are invalid. Finally, Respondent contends that it has not extended recognition to the Union and that no bargaining order is appropriate. I reject each of these contentions. The Collective-Bargaining Unit The unit in which the Union demanded recognition and which is alleged to be appropriate by the complaint is a unit consisting of all of Respondent's drivers - both local and over-the-road - with the customary exclusions. Respondent argues that the appropriate unit should include local drivers but exclude the over-the-road drivers; that it should also include mechanics and the helper classification and, lastly, that it should include James Fay, the part-time dispatcher. Respondent concedes, as it must, that there is nothing in the Act which requires that the unit for bargaining be the "only" appropriate unit or the "ultimate" unit or the "most" appropriate unit. For the Act only requires that the unit be appropriate.3 2 The Board has found to be appropriate units of local drivers excluding over-the-road drivers, 33 units of drivers which include mechanics 3 4 and units of local and over-the-road drivers which exclude mechanics.3 5 I find that a unit which includes both local and over-the- road is appropriate. At the time of the Union's demand for recognition on January 26 there were nine city drivers and three over-the-road drivers. :" E.g., P. G. Berland Paint City, Inc., 199 NLRB 927 (1972). :2 Morand Brothers Beverage Co., et al., 91 NLRB 409 (1950), enfd. 190 F.2d 576 (C.A. 7, 1951). 13 E.g., Georgia Highwauy Express, Inc., 150 NLRB 1649(1965). :' E.g., Cless B. Davis d/b'h/a Queen Citn/ Transports, 141 NL.RB 964 (1963). While the hours and pay of over-the-road drivers are different from those of city drivers, they otherwise enjoy a substantial community of interest. Thus, all of Respon- dent's dispatchers, as Gerald Gogin admitted, have at one time or another dispatched drivers in both groups. Both types of drivers drive tractors and trailers and all use the same type of tractor. Neither Respondent's city nor its over-the-road drivers receive overtime pay nor do they punch a timeclock. Drivers in both groups keep driver's logs. All drivers are eligible for paid holidays and vacations after I year of service. City drivers and over-the-road drivers interchange as dictated by exigencies of manpower or illness. Three former city drivers have become over-the- road drivers. Over-the-road drivers have performed city driving after becoming over-the-road drivers. Scutchfield, for example, was transferred to city driving for a month or more in February and March 1976. Significantly, the requested unit of city drivers and over-the-road drivers would include all of Respondent's drivers. None of the over-the-road drivers or city drivers perform any mechanical duties nor does it appear that Respon- dent's full-time mechanic or its part-time mechanics drive trucks. Respondent's full-time mechanic, at least, was hired based on mechanical proficiency whereas the drivers were all hired for their driving ability. The mechanics perform their function almost entirely at Respondent's Flagg Street location. The drivers, of course, perform their principal work away from Respondent's business locations. In all these circumstances, I find that a unit generally consisting of all of Respondent's drivers but excluding its mechanics is appropriate. In reaching this conclusion I find no compelling "community of interest" nor inter- change between the mechanics and the drivers which, as in the cases cited by Respondent for a contrary result, require the inclusion of mechanics and drivers in the same unit. This brings us to those contentions of Respondent which deal with the unit placement of miscellaneous employees. I have already found that James Fay is a supervisor within the meaning of the Act and I will exclude him from the unit on this basis. As to the helper the record indicates that in January 1976 Respondent had in its employ an individual who performed unloading by hand at Pabst. The record further indicates that such unloading at Pabst is a regular assignment for city drivers, e.g., Laise and Scutchfield (while Scutchfield was a city driver in March 1976). 1 shall, accordingly, include the helper in the appropriate unit. The appropriate collective-bargaining unit is: All of Respondent's city and over-the-road drivers including helpers but excluding mechanics, office clerical employees,37 owner-operators, 3 8 children of 3s E.g., Mc-Mor-Han Trucking Co., Inc., 166 NLRB 700 (1967). : Mc-Mor-Han Trucking Co., Inc., supra. 37 The parties agreed to exclude Gwen Gogin, an office employee, and Don Knaak, Respondent's bookkeeper. :8 The parties stipulated that owner-operators are not employees within the meaning of the Act. 538 GOGIN TRUCKING Gerald Gogin,3 9 guards and supervisors as defined in the Act. At the time of the Union's demand for recognition the foregoing unit consisted of 12 individuals - eight city drivers, three over-the-road drivers and one helper. The city drivers were Doughty, Downey, Hebert, Irwin, Jennings, Laise, Schultz, and Taylor. The over-the-road drivers were Hawver, Phillips, and Scutchfield. The helper was Bates. As of January 26, 1976, the Union had received authorization cards from at least 10 of these employees, a clear majority. Respondent, however, contends that all of the cards are invalid because they were solicited in an atmosphere of coercion. It further contends that at least five of them are invalid for the further reason that Laise made misrepresen- tations as to their purpose when he solicited them. I also reject these contentions. In its first contention in this regard Respondent argues that that all of the authorization cards were executed after Gerald Gogin met with his employees on January 20, 1976, and told them, says Respondent, that a number of them would lose their jobs if Respondent continued to be kept out of Pabst for the reason that Respondent was a nonunion carrier. Since the card solicitation occurred within days of Gogin's talk and since Pabst was the location where a sizable proportion of Respondent's business takes place Respondent urges that all the cards should be rejected either on the basis that they were, in effect, solicited by a supervisor, Gogin, or were solicited against the backdrop of an implied union threat, communi- cated indirectly through Gogin, that employees would lose their jobs (servicing Pabst) if they did not sign.40 I disagree. Insofar as Gogin was concerned he merely explained to his employees the business circumstances in which Respon- dent found itself at the time. He made it clear that the choice whether to join a union or not to join belonged to the employees, as I have found. He spoke neither in favor of nor against the Union. He did not make any threat of reprisal nor a promise of benefit to the employees to encourage them to, nor discourage them from, joining a union. Finally, he did not solicit the employees to sign authorization cards. This was done by Laise, an employee, a few days later. As to any background of union threats that employees would lose their jobs if they did not join, this simply was 39 The parties also agreed to exclude Jay Gogin, a city driver, who is Gerald Gogin's son. Gwen Gogin would likewise be excluded as Gerald Gogin's daughter. 40 The Board traditionally rejects cards solicited by supervisors. E.g., Heck's, Inc., 156 NLRB 760 (1966), enfd. as modified 386 F.2d 317 (C.A. 4. 1967). The Board also rejects cards solicited by union organizers on the basis of the threat that employees will lose their jobs if they do not execute such cards. Heck's, Inc., supra. 4" Fularczyk so informed Respondent's then attorney. Hauer, on or about January 26. according to the undisputed and credible testimony of Hauer on this point. 42 Viz, there is nothing to show that the Union struck or threatened to strike Pabst in order to force Pabst to cease doing business with Respondent, whereas if such had occurred the Union would have acted in violation of Sec. 8(bX4X B) of the Act. 14 I will consider, infra, the possible later disaffection of the employees with the Union. 44 The record shows that Hauer was then Respondent's only attorney not the case. It was Pabst, and not the Union, which shut Respondent off from making deliveries at Pabst in late January and early February. While there is some evidence that the Union had an input to Pabst's decision, 4l there is no indication that the Union exerted any unlawful pressure on Pabst which coerced Pabst to take the position that Respondent, as a nonunion trucker, could not make pickups or deliveries on Pabst premises.4 2 I, accordingly, do not find the cards to be invalidated either by supervisory solicitation or by any act tantamount to union solicitation under threat of loss of job security. I have already rejected, on the basis of my credibility findings, Respondent's contention that the five cards solicited by Laise at the restaurant on January 24 should be invalidated because Laise told the employees that the cards would only be used to see what the Union had to offer the employees. As I have found, Laise rather told the employees at that time that the purpose of the cards, as the cards themselves state, was to authorize the Union to represent the employees for the purposes of collective bargaining. On the basis of the Union's authorization card majority on January 26, 1976, 1 conclude that as of that date, and since,43 it was and is the exclusive bargaining representa- tive within the meaning of Section 9(a) of the Act of the employees in the above-described appropriate bargaining unit. The Union demanded recognition on January 26, 1976, and such recognition was accorded to it by Respondent's then counsel on January 28 in a telephone conversation.44 By failing thereafter to meet and bargain with the Union as the Union requested on February 6 (after Respondent lawfully recognized the Union on January 28) and by disavowing, hence withdrawing, recognition on February 12, Respondent refused to bargain with the Union in violation of Section 8(bX5) and (1) of the Act.45 Even if I had not found, as above, that Respondent has unlawfully refused to bargain with the Union and has unlawfully withdrawn recognition, I would nonetheless recommend a bargaining order. For Respondent by its interrogations and threats to Hawver and Scutchfield in violation of Section 8(a)(1) and its discharge of Hawver and layoff of Laise in violation of Section 8(aX3 ) and (1) of the Act has destroyed the possibility of holding of a free and fair election.46 and was authorized by Gogin at the time to handle Gogin's union affairs. I conclude, therefore, that Hauer was at that time the agent of Respondent, acting on its behalf, within the meaning of Sec. 2(13) of the Act. 45 Withdrawal of recognition from a lawfully established exclusive bargaining representative in the face of that representative's demand for negotiations constitutes a refusal to bargain within the meaning of Sec. 8(aX5) and (1). See e.g.. Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965), enforcement denied on other grounds (sufficiency of evidence) 359 F.2d 799 (C.A. 7, 1966). 45 N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). Nor may Respondent rely on the employees' subsequent disaffection with the Union (which was demonstrated by their requests to withdraw their authorization cards at a meeting with the Union in April) as a basis to continue to refuse to recognize the Union. For, I find, that such disaffection, if indeed this is what it was, occurred in the circumstances of, hence cannot be dissociated from, Respondent's unfair labor practices. SeeJ. H. Patterson Company, 217 NLRB 1030(1975). Nor can Respondent rely on the minimal variation between the unit in (Continued) 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All of Respondent's city and over-the-road drivers including helpers but excluding mechanics, office clerical employees, owner-operators, children of Gerald Gogin, guards and supervisors as defined in the Act. 4. At the time it demanded recognition on January 26, 1976, the Union was, and has since continued to be, the exclusive representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union on February 6, 1976, and by withdrawing recognition from it on February 12, Respondent has violated, and is violating, Section 8(a)(1) and (5) of the Act. 6. By discharging Daniel Hawver on February 2, 1976, because of his union activities Respondent has violated Section 8(a)(1) and (3) of the Act. 7. By laying off Robert Laise on February 6, 1976, effective February 4, 1976, because of Laise's union activities and thereafter refusing to recall him until March 16, 1976, Respondent violated Section 8(a)(1) and (3) of the Act. 8. By discharging Robert Laise on May 16, 1976, Respondent did not violate Section 8(a)(l) and (3) of the Act. 9. By coercively interrogating employees about, or threatening its employees with reprisal for, their union activities on January 23 and 29, 1976, Respondent has violated Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. which recognition was demanded (all drivers) and the unit I have found appropriate (all drivers plus the helper) as legal justification for its refusal to bargain with the Union. Heck's, Inc., supra; cf. American Map Company, Inc., 219 NLRB 1174, 1184-85. Since the Union sought, inter alia, city drivers who perform unloading work by hand as a regular assignment, the Union's demand includes such unloader by implication, in any event. 47 Trading Port, Inc., 219 NLRB 298, 301 (1975). THE REMEDY The recommended Order herein will contain the conven- tional provisions for cases involving the types of interfer- ence, restraint, and coercion, unlawful layoff and discharge and unlawful refusal to bargain which occurred in this case and which, variously, resulted in violations of Section 8(a)(1), (3), and (5) of the Act. This Order will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its unlawful acts. Thus, in respect to the discharge of Hawver, Respondent will be required to offer Hawver reinstatement to his former or substantially equivalent position without preju- dice to his seniority or other rights and privileges. Hawver and Laise, who was discriminatorily laid off but later recalled, shall each be made whole for any loss of earnings he may have suffered by reason of the discrimination against him. Hawver will be made whole by payment to him of a sum of money equal to that he would have earned from the date of his unlawful discharge to the date of an offer of reinstatement to him and Laise will be made whole by payment to him of a sum of money equal to what he would have earned during his unlawful layoff - in each case less net earnings, if any, the employee earned after his unlawful discharge or during the period of his unlawful layoff, to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The recommended Order will also direct Respondent to bargain, upon the Union's request, with the Union as the exclusive bargaining representative of the employees in the unit heretofore found appropriate and, if an understanding is reached, to embody that understanding in a signed agreement. Respondent's obligation to bargain conmenced as of January 26, 1976, when the Union demanded recognition and it shall be directed to bargain with the Union as of that date.47 Finally, it will be recommended, because of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4, 1941)), that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed its employees by Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER48 The Respondent, Gerald G. Gogin d/b/a Gogin Truck- ing, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 4' 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. 540 GOGIN TRUCKING 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Teamsters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining representa- tive in the following unit which has been found to be appropriate for the purposes of collective bargaining: All of Respondent's city and over-the-road drivers including helpers but excluding mechanics, office clerical employees, owner-operators, children of Gerald Gogin, guards and supervisors as defined in the Act. (b) Discouraging membership in, or activities on behalf of, the above-named labor organization by discriminating in regard to hire and tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees. (c) Coercively interrogating its employees concerning their union activities, threatening them with reprisal for union activities or in any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively as of January 26, 1976, with the above-named labor organization as the exclusive bargaining representative of all the employees in the above-described appropriate bargaining unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Offer to Daniel Hawver immediate and full reinstate- ment to his former position or, if it no longer exists. to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Hawver and Robert Laise whole for any loss of pay they may have suffered as the result of the discrimination against them in the manner set forth in the "Remedy" section of 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 Milwaukee, Wisconsin, places of business, copies of the attached notice marked "Appendix.'" 49 Copies of this notice on forms provided by the Regional Director for Region 30, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. 49 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Courts of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the choice to give evidence it has been decided that we have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the rights: To self-organization To form, join or help unions To bargain collectively through a representa- tive of your own choosing To act together for collective bargaining or other mutual aid or protection, or To refrain from any or all such activities. WE WILL NOT coercively interrogate you concerning your union activities. WE WILL NOT threaten you with reprisal for engaging in union activities. WE WILL NOT discharge you, lay you off, or take any other reprisal against you because you join, support, or engage in any union or other concerted activities. WE WILL NOT refuse to bargain collectively with Teamsters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employ- ees in the following unit which has been found to be appropriate: All of our city and over-the-road drivers including helpers but excluding mechanics, office clerical employees, owner-operators, children of Gerald G. Gogin, guards and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with the above-named labor organization with respect to your rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, WE WILL embody that understanding in a signed agreement. 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to reinstate Daniel Hawver to his former or substantially equivalent position with full seniority and all other rights and privileges as the Board has found that he was discharged because of his union activities. WE WILL make up all pay lost by Daniel Hawver as the result of his discharge and all pay lost by Robert Laise as the result of his layoff, plus 6-percent interest. GERALD G. GOGIN D/B/A GOGIN TRUCKING 542