Carpenter Trucking

300 CARPENTER TRUCKING C. M. Carpenter, A Sole Proprietor, d/b/a Carpen- ter Trucking and General Drivers, Warehouse- men and Helpers Local Union No. 89, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 9-CA-18828 and 9-CA- 19073-1 25 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 30 September 1983 Administrative Law Judge Richard A. Scully issued the attached deci- sion. The General Counsel and the Respondent filed exceptions and supporting briefs and the Re- spondent filed an answering brief. By Order dated 30 July 1984 the National Labor Relations Board remanded this proceeding to the judge for the purpose of preparing and issuing a supplemental decision setting forth certain addition- al credibility resolutions, findings of fact, and sup- porting reasons, and a recommended Order in light thereof. On 20 August 1984 the judge issued the at- tached supplemental decision in which he resolved the credibility of certain witnesses, found additional facts, and reaffirmed his 30 September 1983 recom- mended Order. The Respondent filed exceptions to the judge's supplemental decision. The Board has considered the original and the supplemental decisions and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings,2 and conclu- sions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, C M. Car- penter, a Sole Proprietor, d/b/a Carpenter Truck- ing, Annville, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in ' The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In view of the judge's finding in his supplemental decision that the Re- spondent's president C M Carpenter made no attempt to recall employ- ee Randall Neeley from layoff because of Neeley's union activity, we find it unnecessary to reach the judge's finding in his original decision that even if Carpenter had telephoned Neeley's residence as Carpenter testified, Carpenter's failure to take further steps to recall Neeley was evi- dence of a violation the Order, except that the attached notice is substi- tuted for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that I violated the National Labor Relations Act and has ordered me to post and abide by this notice. I WILL NOT fail to recall from layoff or other- wise discriminate against employees because of their membership in or activity on behalf of Gener- al Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization. I WILL NOT interrogate employees concerning their union or other protected concerted activities. I WILL NOT declare or imply the futility of the collective-bargaining process by telling employees of my anticipatory refusal to deal with their chosen collective-bargaining representative. I WILL NOT threaten employees with business closure or loss of employment if they select the Union or any other labor organization as their col- lective-bargaining representative. I WILL NOT create the impression of surveillance of employees' union activities. I WILL NOT in any like or related manner inter- fere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. I WILL offer Randall Neeley immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority or any other rights and privileges previously en- joyed and I WILL make Randall Neeley whole for any loss of earnings resulting from my unlawful failure to recall him from layoff, with interest. C. M. CARPENTER, A SOLE PROPRIE- TOR, D/B/A CARPENTER TRUCKING DECISION RICHARD A. SCULLY, Administrative Law Judge. On charges filed on October 13, November 12, and Decem- ber 16, 1982, by General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (the Union), the Regional Director for Region 9 of the National Labor Relations 274 NLRB No. 46 CARPENTER TRUCKING Board (the Board) issued a complaint and consolidated complaint on November 19, 1982, and January 27, 1983, respectively, alleging that C. M. Carpenter, a sole propri- etor, doing business as Carpenter Trucking (the Re- spondent) had violated the National Labor Relations Act (the Act) The consolidated complaint, as further amend- ed at the hearing herein, alleges that the Respondent committed violations of Section 8(a)(1) and (3) of the Act. The Respondent filed timely answers denying that it had committed any violation of the Act A hearing was held in Corbin, Kentucky, on May 11, 1983, at which the parties were given a full opportunity to participate, to examine and cross- examine witnesses, and to present other evidence and argument. Briefs sub- mitted on behalf of the parties have been given due con- sideration. On the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material, the Respondent was a sole pro- prietorship, engaged in the trucking business, hauling ma- terials used in highway construction, from its facility in Annville, Kentucky During the 12-month period preced- ing January 27, 1983, a representative period, the Re- spondent in the course and conduct of his business oper- ations derived revenues in excess of $50,000, for trans- porting gravel and asphalt from the Commonwealth of Kentucky directly to points located outside of Kentucky. The Respondent admits, and I find, that he is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that, at all times material, the Union was a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A Threats and Interrogation Employees of the Respondent contacted the Union concerning representation in early June 1982 i After the requisite number of employees signed authorization cards, the Union sent the Respondent a letter requesting recognition as the exclusive collective-bargaining repre- sentative of all of the Respondent's truckdrivers, which was received by C. M. Carpenter on June 19. Carpenter testified that on receiving the letter, he attempted unsuc- cessfully to reach his attorney by telephone On the fol- lowing day, Carpenter telephoned employee Jerry Vail and asked him "if anybody brought him a union card." Vail said that he had been given a card and had signed it, but was against the Union. Carpenter also said that on Monday, June 21, he asked a group of six or eight em- ployees in his office at the garage whether anybody brought them a union card I Hereinafter all dates are in 1982 301 Employee Randall Neeley testified that on Saturday, June 19, Carpenter telephoned him at home and asked him if he had signed a union card Neeley said that he had and Carpenter said tha he would sell all of his trucks and that he would never sign a contract Neeley asked Carpenter if he still had a job and could go to work on Monday morning Carpenter said yes, that he should go back to Boonesboro, where Neeley had been working, but that he would have to get there on his own as Car- penter would not furnish transportation as he had been doing Randall Madden testified that he was in the garage on a Saturday morning working on his truck when Carpen- ter called him into his office and asked him if he had heard anything about a union . When Madden said he had, Carpenter asked him who approached him and if he had signed a union card. Madden said he had signed a card but would not say who gave it to him. Carpenter told Madden he would sell his trucks and live off the in- terest before he would put a union in and sign a con- tract. Carpenter denied that he had called Neeley on June 19 and that he ever told neeley he would never sign a con- tract with the Union, that he would stop furnishing transportation to jobsites, or that he would sell his trucks. Carpenter also denied telling Madden that he would sell his trucks and close down his business. Al- though the Respondent contends that Carpenter was a more credible witness than Neeley or Madden and, therefore, should be believed, I found Neeley to be a generally credible and convincing witness, while Carpen- ter was hesitant and qualified numerous answers with "I don't remember" and "I don't think I did." I do not find, as the Respondent suggests, that Carpenter's admissions that he questioned employees about the Union necessari- ly demonstrate candor which would enhance his credibil- ity. Carpenter clearly had little to gain by denying that he had questioned a group of employees about union cards on June 21. His description of what was said in his conversation with Vail on June 20 and with the group of employees on June 21 strikes me as implausible and con- trived. Specifically, I find it unlikely that Carpenter would have asked the employees only if anybody had brought them a union card but not have asked who did so or whether they had signed and that employees would have volunteered that they signed cards without being asked if they had done so It appears that, faced with the undeniable fact of having interrogated his employees, Carpenter attempted to portray his remarks in the light most favorable to him Carpenter's admission that he called Vail after hearing from the Union on June 19 indi- cated that he may have contacted other employees to find out what was going on, including Neeley and Madden. The Respondent's attacks on Neeley's credibility are, for the most part, not persuasive. I do not find Neeley's statement that he worked "well below" 50 hours a week during the last 2 weeks before he was laid off on July 14 to be misleading as the Respondent contends The truth of the statement is borne out by the Respondent's records. His testimony about exactly when he worked 2 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days for another employer during May, which the Re- spondent brands "equivocal," struck me as an honest statement that he was "not sure of the dates." Neeley's testimony that he went to the Respondent's garage on Monday, June 21, in order to catch the van to Boones- boro, after allegedly having been told by Carpenter that he would no longer provide transportation, raises a ques- tion, but does not completely impugn Neeley's credibil- ity. I believed his testimony in all other respects. While I found certain of Randall Madden's testimony concerning leaving the Respondent's employ on June 30, discussed below, to be less than credible, I credit his tes- timony concerning his conversation with Carpenter about the Union over Carpenter's denial, which was phrased in terms of Madden not being among the group Carpenter talked to in the garage on June 21. Carpenter was never asked specifically about a conversation on June 19.2 The Respondent argues that because Madden identified mechanic Richard Sizemore as being present when the conversation with Carpenter took place, an ad- verse inference should be drawn from the General Coun- sel's failure to call Sizemore as a witness From all that appears in the record, Sizemore is a current employee of the Respondent and I find no basis to draw any inference from his failure to appear and give testimony adverse to his Employer. On the contrary, since the Respondent's position was that the conversation never occurred, the Respondent's failure to call Sizemore to confirm this is, if anything, more suspect than the fact that the General Counsel did not call him. I find it doubtful that, if Madden were fabricating this story, he would have gra- tuitously included Sizemore's presence when it could only serve to discredit him. I find that the Respondent's interrogation of Neeley and Madden on June 19 concerning the union activity, which had no legitimate purpose and was coupled with his threats of business closure and refusal to sign a con- tract, was coercive and violated Section 8(a)(1) of the Act. The fact that both Neeley and Madden freely ad- mitted that they had signed union authorization cards does not change the coercive nature of the inquiry.3 The Respondent also violated Section 8(a)(1) of the Act by stating to Neeley and Madden that the business would be closed down and that he would not sign a con- tract implying, as it did, that the employees' union activi- ty would be futile.4 2 Madden's testimony adequately establishes that the conversation was on June 19 He explained that, although he gave an affidavit in which he said the conversation was on June 1, while preparing for the hearing he looked over his checkstubs and determined that it was on June 19 I am not pursuaded that Madden's inability to remember the exact date at the time he gave the affidavit to the Board casts significant doubt on his recollection of the substance of the conversation The Respondent intro- duced Madden's timecards for weeks in July in connection with the issue of whether he was discnmmatonly laid off, but did not offer the timecard covering June 19 which would have shown whether Madden had, in fact, worked a half day that Saturday as he claimed I infer that had it been offered it would have shown he did work that day Since that was the day Carpenter got the Union's letter, I find it likely he would have asked Madden what he knew about the Union 9 Brookwood Furniture, 258 NLRB 207 (1981), Lippincott Industries, 251 NLRB 262, 268 (1980) 4 See Naum Bros, 240 NLRB 311, 317-318 (1979), enfd 637 F 2d 589 (6th Cir 1981) While I found Randall Neeley to be a generally credi- ble witness, there is nothing in the record which would explain why he went to the Respondent's garage on June 21 to catch the van to Boonesboro if Carpenter had told him on June 19 that he would no longer provide trans- portation. It is, of course, possible that Neeley did not believe Carpenter was serious, simply forgot what Car- penter said, or that he hoped he could convince him to change his mind. However, in the absence of an explana- tion, I conclude that the allegation of a threat to with- draw a benefit has not been established by a preponder- ance of the credible evidence and shall recommend that it be dismissed. B. Creating the Impression of Surveillance There is undisputed evidence that on the Thursday after the Union requested recognition, Randall Neeley and several of the Respondent's other drivers held a meeting with union representatives at the union hall in Corbin, Kentucky. Among the things discussed was that, if the Union got in, Neeley would be a union steward and would serve on the negotiating committee . The sub- jects of assignments to trucks, layoffs, and callbacks were discussed and Neeley spoke out in favor of a seniority system to govern these matters. One of the drivers at the meeting, Orville Harris, contacted Carpenter on the fol- lowing Sunday and asked if he could come to Carpen- ter's house to talk to him. Carpenter said yes and, under cover of darkness and in a borrowed car, Harris went to Carpenter's home and proceeded to describe in detail what he knew about the drivers' union activity.5 Harris told Carpenter the number of drivers who had signed union cards, the names of the drivers who attended the meeting in Corbin, and what occurred at the meeting, in- cluding that Neeley and Wayne Adkins were to be the "wheels" of the Union and that the drivers had discussed seniority. A day or two after Harris reported what went on at the union meeting, the Respondent posted a senior- ity list on the wall at the garage showing the hiring dates of all employees. The Respondent had never posted such a list before and when it was put up, Carpenter told the employees that since some of them wanted a seniority list he was putting one on the wall where they could see it. Carpenter testified that he specifically referred to Neeley, by name, as wanting seniority. There is no evi- dence that Neeley had ever discussed the question of se- niority with Carpenter prior to the time this list was posted. The fact that no employee testified that he drew a connection between the posting of the seniority list and the discussion of seniority at the union meeting a week before is immaterial . The test is "whether employees would reasonably assume from the statement in question that their union activities had been placed under surveil- lance .116 Here, there was no evidence of any rumor or s There is no evidence that Carpenter solicited or encouraged Harris to provide this information or that he did anything but listen as Harris informed on his coworkers 6 South Shore Hospital, 229 NLRB 363 (1977) CARPENTER TRUCKING 303 talk about the union meeting or what was discussed being circulated The Respondent's action in posting the seniority list and Carpenter's statement when it was posted about the employees and Neeley, in particular, wanting a seniority list clearly indicated that Carpenter knew what had been discussed at the union meeting. The Respondent's failure to offer any other reason for posting the seniority list at that time further supports the conclu- sion that it was intended to convey the message that the Respondent had inside information about the employees' union activities I find that the Respondent violated Sec- tion 8(a)(1) of the Act by creating the impression that its employees' protected activities were under surveillance. C The 8(a)(3) Allegations The complaint alleges that the Respondent discrimina- torily laid off and failed to recall Randall Neeley and Randall Madden in violation of Section 8(a)(3) of the Act. The evidence establishes that the Respondent's busi- ness was seasonal, with many of the truckdrivers being laid off during the winter each year. It also appears that the Respondent's general practice was to lay off first those who were last hired7 when work was not avail- able. Under the Board's decision in Wright Line, 251 NLRB 1082 (1980), the General Counsel establishes a prima facie case of discrimination by showing that the affected employees had engaged in protected activity, that the Employer was aware of that activity, that the adverse action taken by the Employer was motivated by union animus, and that it had the effect of encouraging or dis- couraging membership in a labor organization.8 I find Carpenter's testimony that he did not want the Union to represent his employees and the several violations of Section 8(a)(1) found herein are sufficient to establish union animus on the part of the Respondent. 1. Randall Madden Randall Madden had worked for the Respondent for about 3 years. He was the employee who originally con- tacted the Union about representation and he obtained employees' signatures on authorization cards. As noted above, he told Carpenter he had signed a card when questioned on June 19 and he was one of the employees whose presence at the union meeting in Corbin was re- ported to Carpenter by Harris on June 27. Madden testi- fied that his last job with the Respondent was driving a tractor-trailer hauling rock from Somerset to London, Kentucky. On June 30, he and some other drivers he could not identify were told by Carpenter that the com- pany using the rock they were hauling "had enough rock stored to last them through the rest of the summer and he didn't have anything for us to haul." Carpenter did not say whether Madden should come to work the next 7 While this was the general rule, it appears that Carpenter made ex- ceptions, as in the cases of driver Jerry Vail, who asked to be laid off sooner than he would have been because he had a job building tobacco barns where he could earn more money, and another driver, who had been released from prison, was not laid off when he normally would have been because without a job he would have been sent back to prison 8 United Broadcasting Co, 253 NLRB 697, 703 (1980) day so Madden "went in and asked him if he wanted [Madden] to check in with him next spring and he said, yes, or something like that." Madden did not come to work the following day or since and has never been called and asked to return to work by the Respondent. Madden admitted on cross-examination that Carpenter did not tell him he was fired or laid off. He assumed he could not work because Carpenter did not tell him to come to work the following day. Abbot Pennington testified credibly that he drove a tractor-trailer doing the same type of hauling on the same job as Madden. He recalled that Madden's last day was a Wednesday, although he was not sure of the date. Pennington, Madden, and a third tractor-trailer driver re- turned to the garage about 4.30 or 5 p m They went in, filled in their timecards, were told by Carpenter to report to the same place the following day, and left for home Pennington did not recall any other conversation with Carpenter that evening. Pennington and the other tractor driver continued hauling on the same job on Thursday and on Friday, when the job ended. The fol- lowing Monday they began hauling blacktop in smaller trucks. No one drove Madden's tractor-trailer on Thurs- day or Friday. Calvin Carpenter testified that the last day he saw Madden at work, he came in the door with the other tractor drivers while Carpenter was on the telephone. One of the men asked him "where to tomorrow?" and Carpenter told them "back to the same place." Madden stuck up his timecard, and said, "I'll see ya," and left. Two or three days later Carpenter saw Madden driving a Triple A Coal Company truck. Madden admitted that he went to work for Triple A Coal Company at $6 per hour during July and worked there until January 1983. He was making only $4 per hour driving the tractor-trailer for the Respondent and would have received even less per hour driving a smaller truck. Madden said he started at Triple A during the second week of July and received his first paycheck, around July 12. This would indicate that he worked for Triple A during the week ending July 10, which I find was the same week he stopped working for the Respond- ent. His timecard shows that Madden's last day of work with the Respondent was Wednesday, July 7, notwith- standing his testimony that it was June 30 and that he started to work at Triple A a week after he left the Re- spondent. Orville Harris testified without contradiction that, earlier in the week that Madden ceased working for the Respondent, they had a conversation in which Madden told him he was going to work for Triple A Coal Comany. I find that the evidence fails to establish that Randall Madden was discharged or laid off by the Respondent. He admits that he was never told that he had been fired or laid off. I do not credit his testimony that he was told there was no more work to be done when he came into the garage on July 7 and, thus, do not find that this, cou- pled with the fact that Carpenter never called him again, constituted a layoff. From the credited testimony of Car- penter and Pennington, I conclude that, on July 7, Madden and the other two tractor-trailer drivers were 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told to report to Somerset on Thursday, July 8, and do the same type of hauling they had been doing . It appears that Madden had obtained a higher paying job with Triple A Coal Company, while still employed by the Re- spondent, and went to work there within a day or two after leaving the Respondent The evidence establishes that Madden was not fired or laid off but voluntarily quit his employment with the Respondent , without notice to take a high-paying job with the new employer. Under the circumstances, the Respondent was under no obliga- tion to recall Madden for available work Since there is no evidence that the Respondent took any adverse action with respect to Madden , there had been no prima facie showing of any discrimination against him which would violate the Act . I shall recommend that this allegation be dismissed. 2. Randall Neeley When the Respondent posted the seniority list at the garage, Randall Neeley was the next to last employee on it with an employment date of June 2, 1982. When Neeley came into the garage on the evening of July 14, Carpenter came to him and said that work was slow and that he had to lay off Neeley. He also said if he needed Neeley, he would call him back . Neeley testified that he has never been called by the Respondent to return to work. The General Counsel contends that the Respond- ent's layoff of Neeley was discriminatory, that there was no basis for laying him off and that his seniority date, as determined by the Respondent , was incorrect As noted above, I find that the Respondent had knowledge of Neeley's union activity and was aware of the fact that he was one of the leaders in attempting to bring the Union in and was to be a steward. I have also found that the Respondent had animus against the Union and against Neeley, individually, because of his union ac- tivity, as evidenced by Carpenter's reference to Neeley at the time of the posting of the seniority list at the garage. However, I am not convinced that Neeley's layoff was discriminatory . Carpenter credibly testified that in July, when Neeley was laid off, business was down to practically nothing, that they had finished a big rock hauling job and, while they were still hauling black- top, he needed fewer trucks. The testimony of Penning- ton and Vail supports that of Carpenter that work was slowing down . Also Neeley's timecards indicate that during the last 2 weeks before the week he was laid off he worked only 5 days. Two other employees, Albert Phillips and Gerald Hurst, were also laid off on the same day as Neeley. There is no indication that they were laid off because of union activity or in order to disguise Nee- ley's layoff. It appears that several other drivers, includ- ing Randall Madden , quit during July and three others were laid off on July 26. I find no basis to conclude that the layoff during July was based on a pretext. There was evidence that when the Respondent had a layoff, the last hired were the first to go. This procedure was followed in July. While the General Counsel argues that Neeley's seniority date was incorrectly stated in order to facilitate his removal , I do not agree. Carpenter credibly testified that, in drawing up the seniority list, he used the last date that the man started to work. As a result, those who had worked for him for a period of years and had been laid off over the winter in 1981-1982 had their seniority based on the date they started back to work in 1982. Given the evidence that drivers often left the Respondent, with or without notice, when another job was available , or during the slow winter months in order to collect unemployment compensation , I find no basis to conclude that the method the Respondent used to determine seniority was unreasonable or discriminato- ry There is no evidence that in drawing up the list the Respondent did not use the same standard in determining each employee's seniority date Neeley started back with the Respondent in April 1982, but admitted that in May, without notice to the Respondent, he went to work for another employer for 2 days in order to try it out. However, Neeley decided to return to the Respondent and called to see if he still had a job to return to 9 Neeley spoke to Carpenter's brother who told him he could come back to work and he did so. According to Carpenter, Neeley's seniority date is based on his returning to work for the Respondent after working the 2 days for the other employer. While Car- penter may have been pleased that this placed Neeley near the bottom of the list, it was Neeley's action in going to work for another employer that put him there as a new hire, not any discriminatory act of the Re- spondent. Neeley's call to the Respondent to see if he could return to work indicated that he knew he had risked losing his job when he went to work for another employer. Neeley's timecards show that he was off for 2 days on May 26 and 27 and again on May 31 and June 1. It seems more likely that May 26 and 27 were the days Neeley worked for another employer since he recalled speaking to Carpenter's brother about returning to work on a Thursday evening and his timecard shows he did work on Friday , May 28 10 However, even if Neeley's correct seniority date should have been May 28, rather than June 2, it would not have changed his position on the list . Despite the finding of animus on the Respond- ent's part and having also found that the layoff was not based on pretext and that Neeley's seniority date was not arbitrarily or discriminatorily determined , I find that he would have been laid off, even if the absence of protect- ed conduct . Accordingly, I find that the Respondent did not violate the Act by laying Neeley off on July 14.1 1 When he informed Neeley that he was laid off, Car- penter told him that, if he needed him, he would call him back. There is undisputed evidence that the Respondent's business began to pick up in September , that Carpenter recalled several drivers from layoff and hired some new ones, and that Carpenter never contacted Neeley and asked him to return to work Carpenter testified that he made a total of three phone calls to Neeley's home on 9 Calvin Carpenter had called Neeley's home to find out why he had not come to work but Neeley's wife would not tell him where he was There is no dispute but that Carpenter learned that Neeley had worked for a man named Finley and told Neeley he knew about it i° May 31 was Memorial Day and the Respondent usually does not work on holidays 11 See Wright Line, supra CARPENTER TRUCKING 305 August 30 and 31 and September 2, but no one an- swered. He made no other attempts to contact Neeley and recall him to work. I find that the General Counsel has made out a prima facie case under Wright Line that the Respondent's fail- ure to recall Neeley from recall in September was a vio- lation of Section 8(a)(3) The evidence of the Respond- ent's animus toward the Union and toward Neeley, the facts that there was work available, that the Respondent was able to contact' 2 and recall every other employee he had laid off, except Neeley, and that he eventually started hiring new drivers, taken together, are sufficient to support the inference, which I draw, that Neeley's "protected conduct was a `motivating factor' in the em- ployer's decision" not to recall him 13 The Respondent offered no evidence which would suggest that he had reason to believe Neeley was no longer interested in working for him. That he considered Neeley a valuable employee, at least prior to learning of his union activity, was evident from the number of times he had put Neeley back to work in the past, even after the incident in May where Neeley went to work for an- other employer for 2 days, without notice, leaving Car- penter with an idle truck at a time when he had work for it There had been no explanation why, if Carpenter did in fact try to contact Neeley and recall him, he made no effort beyond three phone calls. At the very least, if he was serious about recalling Neeley, he could have sent him a letter telling him to contact the Respondent. His failure to do so then or since, even after receiving the charge filed with the Board, indicated that he did not want Neeley in his employ. The only factor that was dif- ferent in September than in May when Carpenter took Neeley back was his knowledge of Neeley's union activi- ty. The Respondent's attempt to put the onus on Neeley for not seeking out employment with the Respondent, as he had on previous occasions, is not persuasive. This was not the regularly occurring winter layoff, which employ- ees expected and apparently had the option of either ac- cepting layoff or staying on and working a limited number of days a week throughout the winter, as Ran- dall Madden testified he did.14 This layoff occurred during what was normally the Respondent's busy season of the year, its duration was unclear, the Respondent had posted a seniority list which he apparently was going to use in recalling as well as laying off and, most signifi- cantly, Carpenter specifically told Neeley he would call him when he needed him. Although the time came when he needed him, Carpenter simply failed to contact Neeley. Equally unpersuasive is the Respondent's argument that the fact other known union supporters were not dis- 12 Carpenter testified that he telephoned some employees and his brother went to the homes of some others who lived about a mile from the garage to contact them While Carpenter might not have been ex- pected to send his brother to Nee;ey's home, which was about a half an hour's drive away, he certainly could have used the mail if, in fact, his attempts to telephone Neeley were unsuccessful 13 Wright Line, supra at 1089 14 Madden's seniority date on the Respondent's list confirms that he stayed on through the winters of 1979, 1980, and 1981 criminated against proves Neeley was not It is true that the information Carpenter received from Harris indicated Wayne Adkins was to be a "wheel" in the Union, as was Neeley. However, Neeley was second from the last in se- niority, while Adkins was 46th and hardly vulnerable unless the Respondent abandoned his seniority system Further, having fortuitously been relieved of the two prounion leaders, Randall Madden, who quit, and Neeley, who was lawfully laid off, the Respondent may have felt no further action was called for Carpenter's prompt recall of Jerry Vail, which the Respondent's brief highlights in support of this argument, may well have been based on Vail's protestations when interrogat- ed by Carpenter that, although he had signed an authori- zation card, he was against the Union Based upon all the evidence, I find that the Respondent had failed to estab- lish that the same action, failure to effectively recall Neeley, would have taken place even in the absence of protected conduct. Consequently, I find that the Re- spondent violated Section 8(a)(3) and (1) of the Act by its discriminatory failure to recall Randall Neeley to work in early September 1982. CONCLUSIONS OF LAW 1. The Respondent, C M Carpenter, a sole proprietor, doing business as Carpenter Trucking, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by- (a) interrogating employees concerning their union membership and activities; (b) indicating to employees that selecting representation by the Union would be futile and would lead to the closing of the Respondent's business; and (c) creating the impression that his employ- ees' protected activities were under surveillance. 4. The Respondent violated Section 8(a)(3) and (1) of the Act by failing to recall Randall Neeley from layoff because he engaged in protected activity 5 These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not engage in any unfair labor practices alleged in the consolidated complaint not spe- cifically found herein. THE REMEDY Having found that the Respondent had engaged in unfair labor practices, I shall recommend that he be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. Having also found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by failing to recall Randall Neeley from layoff, I shall recommend that the Respond- ent be ordered to offer him full and immediate reinstate- ment to his former job or, if it no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority and other rights and privileges previously en- joyed, and to make him whole for any losses he may have suffered as a result of the discrimination against 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him. Backpay shall be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be paid on the amounts owing in accord- ance with Florida Steel Corp, 231 NLRB 651 (1977).15 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's ORDER The Respondent, C M Carpenter, a sole proprietor, doing business as Carpenter Trucking, Annville, Ken- tucky, his agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to recall from layoff or otherwise discrimi- nating against employees because they engage in activi- ties on behalf of General Drivers, Warehousemen and Helpers Local Union No 89, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, or any other labor orga- nization. (b) Unlawfully interrogating employees concerning their union membership or activities. (c) Declaring or implying the futility of the collective- bargaining process by expressing an anticipatory refusal to deal with the employees' chosen collective-bargaining representative. (d) Threatening employees with business closure and loss of employment if they select the Union or any other labor organization as their collective-bargaining reprsen- tative. (e) Creating the impression of surveillance of employ- ees' union activities (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Offer Randall Neeley immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at his facility at Annville, Kentucky, copies of the attached notice marked "Appendix."' 7 Copies of the 15 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 16 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 17 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the consolidated com- plaint be dismissed insofar as it alleges violations not spe- cifically found herein. of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " SUPPLEMENTAL DECISION By order dated July 30, 1984, the Board remanded this matter for further findings of fact. I had found that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to recall employee Randall Neeley from layoff. In reaching that conclusion I found that the Respondent, C. M. Carpenter, never contacted Neeley to ask him to return to work, as he said he would do at the time Neeley was laid off. The Respondent had testified that he made attempts to contact Neeley by telephone in order to recall him on three different days, but that there was no answer. The Board has determined that a specific finding of fact as to whether Carpenter made the tele- phone calls to Neeley's home is necessary in order to dis- pose of this issue. I find that there is no credible evidence that Carpenter made the telephone calls he claims to have made. I found Carpenter's testimony with respect to several of the other incidents alleged to involve violations of the Act to be untrustworthy as I believed he deliberately fal- sified his testimony in denying having conversations with Neeley and employee Randall Madden in which he inter- rogated them concerning the signing of union authoriza- tion cards and made certain threats. As for his testimony about the telephone calls, from my observation of Car- penter while testifying, I believe he had no independent recollection of making calls to Neeley's home on August 30 and 31 and September 2 and was merely reading those dates off an employee seniority list on which they were noted. There was no testimony as to the times he made the calls or whether he called more than once on a given day and none as to when the notations were made on the list. There are no notations with respect to unsuc- cessful efforts to contact any employee other then Neeley. Carpenter testified that on Sunday, August 29, he called Jerry Vail about returning to work and that he had to call two or three times before he finally succeed- ed in reaching Vail in the late afternoon. Vail, however, credibly testified that he returned to work 15 minutes after receiving a call from Carpenter on a Monday morn- ing. Vail's testimony casts additional doubt on Carpen- CARPENTER TRUCKING 307 ter's veractiy and on the credibility of the notations on the list. Neeley had three school-age children and his wife does not work; consequently, the chances of their being no answer at his home three times during a 4-day period appear small. I also find it unlikely that had Carpenter really made three telephone calls to Neeley which went unanswered, he would have then abandoned his efforts to contact Neeley and begun hiring new truckdrivers without some indication that Neeley was not interested in returning to work i Upon consideration of all of these factors, I find that the evidence does not establish that Carpenter attempted to contact Neeley by telephone or any other means in order to recall him to work and I conclude that the reason he did not do so was Neeley's involvement with the Union. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, C. M. Carpenter, a sole proprietor, doing business as Carpenter Trucking, Annville, Ken- tucky, his agents, successors, and assigns, shall comply with the Order issued herein on September 30, 1983. I I do not credit the testimony of Carpenter, pursuant to the leading question of his counsel, that he had a practice of not making further ef- forts to contact a driver about coming to work after two or three unsuc- cessful calls It is noteworthy that Carpenter was able to contact every driver who was laid off except Neeley, including those who had no tele- phones and had to be contacted in person 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses