Springhill Services, Inc.

SPRINGHILL SERVICES Springhill Services, Inc. and General Teamsters Local Union No. 528, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO. Cases 10-CA-23399 and 10-RC-13648 July 20, 1989 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 16, 1989, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, ' findings,2 and conclusions, to modify the remedy,3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Springhill Services, Inc., McIntyre, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. I The Respondent excepted to the judge's rulings at hearing permitting certain amendments to the complaint. However, the Respondent has failed to show how it was prejudiced by the amendments. The allegations involved in the amendments were closely related to other allegations in the complaint, and the Respondent does not contend it had evidence or witnesses that it was unable to present . See NLRB Y. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), Meat & Allied Food Workers Local 248 (Mil- waukee Independent Meat Packers Assn.), 222 NLRB 1023 fn . 1 (1976). We find Russell-Newman Mfg. Co. v. NLRB, 370 F.2d 980 (5th Cir. 1966), relied on by the Respondent , to be distinguishable, as the court found there that the complaint amendments involved "[t]otally new and differ- ent factual charges," and the company contended that it had evidence that it was unable to present. 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 the absence of exceptions, we adopt pro forma the judge's recom- mendation that the challenges to the ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown be overruled. 9 Backpay for employee Ronnie Dupree shall be computed in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950). 4 We shall modify the judge's notice to conform to his recommended Order 1021 DIRECTION IT IS DIRECTED that Case 10-RC-13648 be re- manded to the Regional Director to open and count the ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown. If the revised tally of ballots shows that a majority of the valid ballots have been cast for the Petitioner, the Regional Director shall issue a certi- fication of representative. If the revised tally of bal- lots shows that a majority of the valid ballots have not been cast for the Petitioner, the election shall be set aside and a new election conducted when the Regional Director deems the circumstances permit the free choice of a bargaining representa- tive. 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 we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate our employees con- cerning their union activities or those of their fellow employees. WE WILL NOT threaten our employees with sur- veillance of their union activities. WE WILL NOT threaten our employees with plant closure or discharge because of their support of the Union. WE WILL NOT discharge our employees because of their engagement in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of rights guaranteed you by Section 7 of the Act. WE WILL offer Ronnie Dupree immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and. WE WILL make him whole for any loss of earnings and 295 NLRB No. 113 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our file any reference to his discharge and that the discharge will not be used against him in any way. WE WILL make Ronnie Dupree whole for any loss of pay or other benefits sustained by him, by reason of our unlawful discrimination against him, with interest on any moneys due. SPRINGHILL SERVICES, INC. Milton A. Jones, Esq. and Rhonda J. Herry, Esq., for the General Counsel. John W. Oxendine, Esq. (Oxendine & Associates), of Nor- cross, Georgia, for the Respondent and Employer. Frank B. Shuster, Esq. (Blackburn, Shuster, King & King), of Atlanta, Georgia, for the Charging Party and Peti- tioner. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. These consolidated cases were heard before me on August 23, 24, and 25, 1988, in Milledgeville, Georgia, pursuant to an order consolidating cases and notice of hearing issued by the Regional Director for Region 10 of the National Labor Relations Board (the Board) on July 22, 1988. The complaint in Case 10-CA-23399, as amended at the hearing is based on a charge filed by General Teamsters Local 528, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Charging Party, the Petitioner, or the Union) on May 4, 1988, and alleges that Springhill Services, Inc. (the Respondent or the Em- ployer) has committed violations of Section 8(a)(1) of the National Labor Relations Act (the Act) by interrogating its employees concerning their union activities and those of their fellow employee and by threatening its employ- ees with surveillance, discharge, and plant closure be- cause of their engagement in union activities and that it violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate its employee Ronnie Dupree be- cause of his engagement in union activities including serving as an observer on behalf of the Union at a Board-conducted election among its employees. Re- spondent has by its answer denied the commission of any unfair labor practices. A petition for an election in Case 10-RC-13648 was filed on February 24, 1988, pursuant to a Stipulated Election Agreement approved on March 10, 1988. An election by secret ballot was conducted on April 1, 1988, among the employees in the stipulated appropriate unit to determine the question concerning representation. The stipulated appropriate unit is: All truckdrivers employed by the Employer at its McIntyre, Georgia, facility, but excluding all other .employees, office clerical employees, guards and su- pervisors as defined in the Act. There were approximately 38 eligible voters, of whom 17 cast valid votes for and 13 cast valid votes against the Petitioner and 8 cast challenged ballots. There were no void ballots. The challenged ballots are sufficient in number to affect the result of the election. On April 6 and 8, 1988, the Petitioner and the Employer each filed timely objections to the election. The Petitioner also challenged employees Joel Bateman, Ira Brown, Larry Johnson, Steven King, and James Vernon Henry as not properly included within the stipulated unit as these em- ployees are not classified as truckdrivers. Employee Fred Whipple was challenged because his name did not appear on the voter eligibility list and on the ground that he is employed as a mechanic and thus not appropriately in- cluded within the unit. Gill Wall and Mark L. Brooks were challenged by the Petitioner as supervisors. The Employer contends that Bateman, Brown , Johnson, King, Henry, and Whipple are dual-purpose employees and properly includible in the unit and that Wall and Brooks are truckdrivers and not supervisors under the Act and are thus also properly included in the unit. On April 28, 1988, the Regional Director for Region 10 rec- ommended that a hearing be held to resolve the eligibil- ity of the above challenged employees. He also amended the Employer's objection, granted the Petitioner's re- quest to withdraw its Objection 1, and found that the Pe- titioner's Objection 2 raised material and substantial issues best resolved by record evidence at a hearing. Pe- titioner's Objection 2 states: During the course of the critical period and on the day of the election the employer interfered with, re- strained, and coerced the employees in the exercise of their Section 7 rights. On the entire record in this case, including my obser- vation of the demeanor of the witnesses , and after due consideration of the closing statements at the hearing made by counsel for General Counsel and counsel for the Charging Party Petitioner, and the brief filed by the Respondent Employer, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW' 1. JURISDICTION The Business of the Respondent The complaint alleges, Respondent admits, and I find that the Respondent is, and has been at all times material herein, a Georgia corporation , with an office and place of business located at McIntyre, Georgia, where it is en- gaged in providing various services , including trucking services to various commercial customers, that during the past calendar year, a representative period , it provid- ed services valued in excess of $50,000 for a customer within the State of Georgia which customer, in turn, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. Based on the foregoing admitted facts, I find 1 The General Counsel's motion to submit formal documents supple- menting G.C Exhs. 2(a)-2(r) and a document setting forth complaint amendments is granted and said documents are received. SPRINGHILL SERVICES 1023 that Respondent is, and has been at all times material herein, an employer affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. Facts2 The Respondent is a contract hauler for its sole cus- tomer Engelhard Industries which is engaged in the ex- cavation, reclamation, and processing of earth and clay materials. The Respondent's owner and president, Frank Wall, has been operating as the contract hauler for En- gelhard since 1982. A predecessor corporation known as Springhill Construction was previously engaged in con- struction work. In addition to its functions as a contract hauler for Engelhard for which it maintains approximate- ly 30 trucks and has over 30 employees, the Respondent engages in the operation of various earth-moving equip- ment such as several types of cranes, bulldozers, back- hoes, and frontend loader. As a contract hauler for En- gelhard, Respondent is subject to the demands of its cus- tomer which are periodic and vary greatly. Thus, Re- spondent is subject to the call of Engelhard to haul loads from one of its several plants to another and to other cities within the State of Georgia where it has a certifi- cate issued by the Public Service Department of Georgia to haul intrastate. It also is subject to regulation by the United States Department of Transportation. Several of Respondent's drivers are assigned to a 24-hour rotating shift hauling clay products within the two Engelhard plants (the Gordon and the McIntyre plants). These em- ployees drive almost exclusively within the confines of the plants and are required to prepare their trucks for loading at one area of the large plant complexes and to use special equipment to unload by pumping off the product at another end of the complex. This group of truckdrivers by and large all have their class V licenses from the State of Georgia permitting them to drive trucks up to 18 wheelers over the Georgia Highways and are health certified by the Department of Transpor- tation. These employees were permitted to vote at the stipulated election held April 1, 1988, and are not in question. Additionally, Respondent employs a number of other truckdrivers who drive trucks between plants and on the highways to other cities and these drivers were also permitted to vote. However, at the hearing the Union challenged another group of drivers on the ground that they were heavy equipment operators or mechanics rather than drivers. In addition the Union challenged Gill Wall, the son of Frank Wall, and Mark L. Brooks as supervisors. 1 The following includes a composite of the credited testimony at the hearing. A. The Ballot of Gill Wall The undisputed evidence established that Gill Wall is the son of Frank Wall and is employed at least in part as a truckdriver by Respondent. Although the Union chal- lenged Gill Wall on the ground that he was a supervisor, I find he should properly be excluded as the son of the owner and principal operator of the business under Sec- tion 2(3) of the Act. Union Industries, 291 NLRB 436 (1988); Royal Coach Lines, 282 NLRB 1037 (1987). I rec- ommend that the challenge to his ballot be sustained. B. The Ballot of Mark L. Brooks The evidence established that Mark L. Brooks who had formerly been employed by Respondent at the time of the election on April 1, 1988, was employed as a truckdriver with responsibilities for keeping Owner and President Frank Wall and Operations Manager C. L. Brooks and admitted Supervisor Dickie Brannen advised as to where the various drivers were dispatched through- out Respondent's operations. The evidence established that in this capacity Mark Brooks had given applicants driving tests and reported to Wall or C. L. Brooks as to whether they could drive , a report tantamount to the de- cision to hire them and had told employees to go home as there was no work for them , and had on at least one occasion called an employee back into work. The evi- dence also showed that Mark L. Brooks was the princi- pal contact with the in-plant drivers at the Gordon Plant who checked their status and was on a list of people to call when any of the drivers had problems. Mark Brooks would decide whether he could handle the problem or whether it could be handled by someone else . On at least one occasion Brooks told an employee if he did not show up on time he could be discharged . Mark L. Brooks accompanied C. L. Brooks ("as a witness") when C. L. Brooks gave a notice to the in-plant drivers con- cerning various rules. Mark L. Brooks was also designat- ed by the Owner Frank Wall to present a termination notice to employee Ronnie Dupree who Wall himself ac- knowledged at the hearing that he did not know. The Employer's position was that Mark L . Brooks was essen- tially a working leadman who merely carried out instruc- tions. Mark L. Brooks also identified himself as a fore- man to at least one employee and was identified by C. L. brooks as a foreman to another employee. Mark L. Brooks was also paid an increment for his additional duties. On one occasion Mark L . Brooks raised his hand when asked by a union organizer whether there were any supervisors at the meeting and was excluded from the meeting. Moreover, as will be set out infra Mark L. Brooks engaged in various acts of interrogation and threats against the employees in furtherance of the Em- ployer's antiunion sentiments. Under all of these circum- stances, I find that at the time of the election Mark L. Brooks was a supervisor within the meaning of Section 2(11) of the Act and should be excluded from the unit on the Union's challenge and his ballot should not be count- ed Spring Valley Farms, 272 NLRB 1323 (1984), NLRB v. Edward G. Budd Mfg., 169 F.2d 571, 576 (6th Cir. 1948), cert. denied 355 U.S. 908 (1949). 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. The Ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown The record established that these employees are dual- purpose employees who spend only a portion of their time driving trucks. Steve King, Joel Bateman, and Ira Brown all operate earth-moving equipment as part of their duties to make up their time and are paid a premi- um substantially above what the truckdrivers assigned to the in-plant operation receive as a result of their ability to operate earth-moving machinery as well as drive trucks. Steve King is a truckdriver and a crane operator who spends 30 percent of his time driving trucks, works 8 a.m. to 4:30 and receives an unpaid lunchbreak. Joel Bateman is a truckdriver and equipment operator who often operates a crane. Approximately one-third of Bate- man's time is spent on interplant hauling from plant to plant. He also operates a crane and must drive the crane on a truck to various jobsites , making up a total of about half of his time driving a crane. Ira Brown is employed as a truckdriver and machine operator and operates a hy- draulic lift, backhoe, frontend loader, and a bulldozer and can do carpentry work. Brown spends approximate- ly 50 percent of his time driving a truck. All of these em- ployees have a class V Georgia driving license necessary to drive a truck. Based on the above unrebutted testimo- ny, I find that King, Bateman, and Brown all spend a substantial amount of their time approximating 50 per- cent driving a truck and are dual-purpose employees. I find that as dual-purpose employees performing a substantial amount of truckdriving as part of their duties, these employees have a sufficient interest in the terms and conditions of the truckdrivers' unit herein , notwith- standing the facts that their hours may differ and that they receive an increment because of their ability to per- form other duties in addition to that of truckdrivers. Ocala Star Banner, 97 NLRB 384, 385-386 (1951 ); Berea Publishing Co., 140 NLRB 516 (1963); Fleming Industries, 282 NLRB 1030 fn. 1 (1987). D. The Ballot of James Vernon Henry Henry spends about 4 to 5 hours of a 14-hour day driving a truck. He is also used extensively to repair trucks and his name appears on a list of people to call when the drivers experience mechanic troubles with their vehicles. He has also on occasion trained new em- ployees and on his own initiative reported back to man- agement concerning their ability to do the job. He also has a class V license. I find that Henry is a dual-purpose employee who spends a substantial amount of time ap- proximating one-third of his time as a truckdriver and recommend that his ballot be counted. E. The Ballot of Larry Johnson Johnson is employed as a truckdriver and spends ap- proximately 50 percent of his time driving a truck and the remainder of his time doing paint and truck body work and other assigned duties. He also operates and hauls cranes and has included in his 50-percent estimate the time spent hauling cranes and other equipment to jobsites. If this time were eliminated he would be driving a clay products truck about a third of his time. I also find Johnson a dual-purpose employee who drives a truck a substantial portion of his time and recommend that his ballot be counted. F. The Ballot of Fred Whipple Fred Whipple testified he is employed as a truckdriver and mechanic. However, he had only performed one truckdriving job in the 2 months prior to the April 1 election and had spent virtually all the rest of his time in the shop working as a mechanic. I find that Whipple is a mechanic and should be excluded from the unit and his ballot should not be counted. III. THE 8 (A)(1) ALLEGATIONS Hobbs, a truckdriver assigned to the Gordon plant, testified that approximately late February or early March, Mark Brooks called Hobbs to his truck and asked him whether he knew anything about the Union and how he was going to vote. Mark said that he and Gill Wall, the son of Frank Wall, were going to the upcom- ing union meeting and that he (Mark) was going to take a tape recorder, and that if Frank Wall found out who started the union campaign, he was going to fire them. Mark also asked whether Hobbs thought that truckdriver Ronnie Dupree had started the union campaign. Hobbs said he did not think so and Mark Brooks then inquired whether employees David Cooper or Ronald Johnson had started it and Hobbs also answered no. Mark Brooks then said that he thought C. L. Brooks had started the campaign . Hobbs replied that he did not think so. Hobbs was present at the union meeting of March 24, 1988, at which Mark Brooks was asked to leave as a member of Respondent's supervision. Mark Brooks testified at the hearing and admitted he had asked questions of a number of employees concern- ing the Union . He denied having threatened employees with discharge but admitted having expressed his opinion that Frank Wall could not operate if a union were select- ed to represent the employees and would be required to close down the operation. Brooks answered many ques- tions by stating that he did not remember who he had talked to or the conversations. Brooks admitted having discussed going to the union meeting with Gill Wall but denied having said that he would bring a tape recorder to the meeting. Brooks also contended that he was not a supervisor and had not been allowed at any company su- pervisory meetings to discuss the union campaign. Frank Wall also testified that he was unaware of any such state- ments to the employees by Brooks concerning the Union. However, Frank Wall freely admitted at the hearing that he had held a meeting with his employees in March 1988 between the filing of the petition and the election and had told them that he could not operate the trucking business at Engelhard if a union were selected to repre- sent the employees based on his belief that this would result in higher wages and costs which would necessitate cost increases which Engelhard would not pay and thus resulting in Engelhard's hiring another trucking compa- ny. I find that these comments by Wall were unlawful threats of plant closure and that Respondent thereby vio- lated Section 8(a)(1) of the Act. SPRINGHILL SERVICES 1025 I found Hobbs' testimony to be detailed, clear, and consistent and I credit it. I found the testimony of Mark Brooks to be confused , vague, and in large part to admit most of the allegations. Further, I find the theme set by Frank Wall to have been echoed by Mark Brooks and I find that Mark Brooks' various comments and interroga- tion are properly attributable to Respondent's antiunion animus and that Mark Brooks was a supervisor and agent of Respondent in this regard. I further find that the inter- rogation of Hobbs and threats of plant closure and dis- charge of employees that would result from their support of the Union were inherently coercive and violative of Section 8(a)(1) of the Act. I also find that the threat to take a tape recorder to the union meeting was a threat of surveillance of the employees engagement in union ac- tivities and was also violative of Section 8(a)(1) of the Act. Truckdriver Kirby Fountain testified that on one occa- sion Mark Brooks told him, I know you are for the Union and on another occasion told him that he better not mess up coming in late because Frank Wall was mad and was going to fire the employees because of their sup- port for the Union. I credit Fountain's testimony and find that Respondent violated Section 8(a)(1) of the Act by the above statement which I find to have been an un- lawful threat of discharge. Truckdriver David Bryant testified that about a week or so before the election (of April 1, 1988) Mark Brooks asked what he thought about the Union. Bryant replied he didn't know and Mark Brooks said he didn't think it would work as Frank Wall would shut down if the em- ployees chose union representation . I credit the testimo- ny of Bryant and find that the foregoing interrogation of Bryant and threat of plant closure were inherently coer- cive and violative of Section 8(a)(1) of the Act. Ronnie Dupree testified that he contacted Wylie Wil- liams, a representative of the Union, between January and February 1988 and inquired about union representa- tion. Williams sent him union authorization cards and Dupree solicited the employees ' signatures on the cards, and obtained 15 to 18 signed cards that led to the peti- tion for election . About a week before the election Mark Brooks came to the Gordon plant where Dupree was working and climbed in the cab of Dupree's truck, turned the radio off and said that he had "just got through talking to Wylie Williams." He then asked whether Dupree knew Wylie Williams and Dupree re- plied in the negative. Brooks then asked Dupree what the Union wanted at Springhill and Dupree replied he did not know. Brooks then made some comments about the Union and Frank Wall. Brooks also asked Dupree how he was going to vote and Dupree replied he did not know. I credit the testimony of Dupree which I found detailed and explicit and in contrast to Brooks' testimo- ny. I find that this interrogation was inherently coercive and violative of Section 8(a)(1) of the Act. Truckdriver Jon Morrison testified that in mid-March (1988) Mark Brooks asked him in the breakroom at the Gordon plant what he thought about the Union. I credit Morrison. In view of the fact that there is no evidence that Morrison was an active union supporter, that no guarantees of protection from reprisals were given, that no valid reason for the inquiry was established and in view of Brooks' overall pattern of interrogation and threats, I also find this interrogation violative of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1177 (1984). Hobbs testified that on the Friday (August 19, 1988) before the hearing in the matter (August 23-25 , 1988), Roy Paine asked him at the Gordon plant whether he was a union man. Hobbs replied "No" and Paine said that he needed to find out. The evidence at the hearing established that Paine replaced Mark Brooks in mid-May 1988 and received an increment in pay for doing so, is charged with keeping track of the drivers and trucks, and otherwise took over the duties previously performed by Mark Brooks. I find that Paine was a supervisor within the meaning of Section 2(11) of the Act since mid-May 1988. Paine testified that he was called to the Gordon plant by Hobbs as Hobbs had gotten Paine's uni- form shirt and that Hobbs told him that he needed to go to court on Monday in connection with the labor union and that Frank Wall had fired the wrong man as he (Hobbs) "had started the Union stuff, not Dupree." Paine testified he told Hobbs to do whatever he wanted to do, and disclaimed at the hearing that he had been aware of the union situation as he had not became employed by Respondent until after the election. For reasons of credi- bility and plausibility, I credit the version of Hobbs who I found to be a credible witness. I also find it unlikely that he would have related such a story to Paine. I thus find that Paine's inquiry of Hobbs was a continuation of the unlawful course of conduct previously carried out by Mark Brooks and find it inherently coercive and viola- tive of Section 8(a)(1) of the Act. Truckdriver Kirby Fountain testified that on August 21, 1988, Supervisor Roy Paine called him at home and told him that he had found out that David Hobbs had started the union campaign and that he (Paine) and Frank Wall had a meeting "and we might have to termi- nate him (Hobbs)" Paine denied that this conversation occurred. I credit Fountain and find that Paine's state- ment was an unlawful threat of discharge of Hobbs and a violation of Section 8(a)(1) of the Act. A. The Discharge of Ronnie Dupree Ronnie Dupree was employed by Respondent as a truckdriver. He worked on a rotating shift in inplant hauling at the McIntyre plant. On April 1, 1988, he served as an observer for the Union at the election held on that date. In February 1988 , the Respondent's presi- dent, Frank Wall, issued a list of rules for the truckdriv- ers. Rule 9 provides that: You are required to stay on the job site until relief drivers arrives. If he is late or doesn't show up con- tact someone. On March 7, 1988, Operations Manager C. L. Brooks and Mark L. Brooks met with Dupree and two other drivers assigned to the Gordon plant and reviewed the rules with them and told them they would be subject to discharge if they broke them. On the evening of March 31, the night before the election , Dupree was scheduled 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to work the morning shift from 12 midnight to 8 a.m. As a result of a mechanical problem Dupree called Mark L. Brooks, who came to the jobsite. Dupree testified that he told Mark Brooks at that time that he was the observer for the Union for the election scheduled the next day and needed to leave early. According to Dupree and fellow truckdriver Floyd Wyatt who testified he was standing no more than 2 feet away from Dupree and Brooks at the time. Brooks said that Dupree's leaving the shift early would not be a problem . Mark Brooks con- tended at the hearing that he had told Dupree to get his replacement driver to come in early, and that Floyd Wyatt could not have heard the conversation between Brooks and Dupree as he was some distance away un- loading his truck and because of the noise level. Dupree testified that he informed the Engelhard fore- man who oversees Respondent 's truckdrivers and sign their timesheets (as no supervision from Respondent is regularly assigned to supervise the employees on the En- gelhard property at the McIntyre plant), and the Engel- hard foreman indicated there was no problem with his leaving early . Dupree's timesheet indicates he worked until 7 a.m. (1 hour less than 8 a.m.). However, Ann Wall, the wife of Frank Wall who works in the office testified she saw Dupree in the Respondent's office at McIntyre, Georgia, approximately 10 to 15 minutes prior to 7 a.m. Her testimony was supported by that of Oper- ations Manager C. L. Brooks who testified he saw Dupree in the office shortly before 7 a.m. and asked him what he was doing there. The election was held in a back room of Respondent's office building . Dupree testi- fied that he did not leave before 7 a .m. (the time noted on his timesheet). Frank Wall testified that when he heard of Dupree's having left his truck early that day, that he checked the time sheet of his replacement driver to see if he had worked the extra hour. Frank Wall also testified that it is about a 20-minute drive from the plant to the office in McIntyre. When that timesheet of the re- placement driver showed only 8 hours , Wall decided to discharge Dupree . Wall testified that it is mandatory that the trucks not be left unattended in the in-plant hauling as there are various controls and dials that must be main- tained as materials are pumped from the truck in the un- loading process and there is a possibility of an explosion if the pumping process is ongoing while unattended. His testimony was corroborated by C. L. Brooks. Dupree testified that prior to his leaving he shut down the truck and all of its controls and checked with the Engelhard foreman. There was testimony from Frank Wall that he had been previously reprimanded by Engelhard repre- sentatives for various infractions of the drivers on the Engelhard properties but that this particular incident in- volving Dupree was apparently not noted by Engel- hard's management. Wall testified he believed that he had discharged another employee for leaving a truck un- attended but did not specify when this had occurred. Truckdriver David Hobbs testified that on a couple of occasions, he had left the truck unattended after the completion of his shift when his replacement driver did not show up on time and had been told by Mark L. Brooks not to do it again as he could be discharged for doing so. Wall testified that after having decided to discharge Dupree, he called Mark L. Brooks and Malcolm Horton, the Respondent's observer at the election, and told them to meet with Dupree shortly before the start of his shift at midnight and discharge him and hand him a termina- tion notice . Brooks and Horton met Dupree at the break shack at the McIntyre plant and Brooks handed Dupree his termination slip while Frank Wall remained in the parking lot. Wall explained that he was not sure who Dupree was. Dupree testified that when Mark Brooks handed him his termination slip, he told him that he could get himself a job with the Union . Brooks admitted on the stand that he may have made such a comment. Truckdriver Hobbs testified that Brooks made a similar comment to him as he left. Analysis I find that the General Counsel has made a prima facie case of a violation of Section 8(a)(3) and (1) of the Act by reason of Respondent's discharge of Dupree. Thus I find that Respondent's animus toward the Union and toward Dupree has been demonstrated in view of the acts of interrogation and threats issued by Brooks, in- cluding the interrogation of Dupree by Brooks and the threats issued by Brooks to Dupree and the antiunion speech by Wall to his employees which I have found contained an unlawful threat of plant closure. I rely also on the timing of the discharge of the Union's observer on the same day of the election and Wall's seizing on this opportunity to discharge Dupree without giving him any opportunity to explain his reasons for leaving the jobsite early or the circumstances thereunder. I also find very little if any evidence that Respondent has discharged em- ployees for similar infractions in the past . Wall's testimo- ny in this regard was vague, uncertain, and unsupported by any documentary evidence which presumably would have been in Respondent's possession . I thus find that Dupree's discharge shows evidence of disparate treat- ment meted out to a union supporter when milder treat- ment of other employees such as David Hobbs was per- mitted in the past prior to the advent of the Union's cam- paign. In making this determination , I credit the testimony of Dupree in all respects except the time he left the jobsite to go to the office. I credit the testimony of Ann Wall and C. L. Brooks that Dupree was in the office shortly before 7 a.m. and Frank Wall that it is approximately a 20-minute drive from the McIntyre plant to the office. I, however, do not regard the time difference as determina- tive in deciding the case. I also credit the testimony of Hobbs that he was previously warned by Mark Brooks for leaving his truck prior to his replacement's arrival but not otherwise disciplined therefore, I also credit the testimony of Wyatt which corroborated that of Dupree that Dupree had informed Brooks of his need to leave early and that Brooks indicated that this was not a prob- lem. I also specifically credit the testimony of Dupree and Hobbs which was not rebutted by Mark Brooks that Brooks took a parting shot at Dupree at the time of his termination by telling him to get a job with the Union. SPRINGHILL SERVICES 1027 In sum, I find that the General Counsel has made a strong prima facie case that Dupree was discharged be- cause of his engagement in union activities as a union ob- server at the election. I also find that the Respondent has failed to rebutt the prima facie case by the preponder- ance of the evidence. In Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board held that once the General Counsel makes a prima facie showing that the protected conduct was a motivating factor in the action taken against the employee, the burden then shifts to the employer to demonstrate that it would have taken the action even in the absence of pro- tected conduct. It is not sufficient for the employer to merely show that it also had a legitimate reason for the action but the employer must persuade by a preponder- ance of the evidence that the action would have taken place even in the absence of the protected conduct. Roure Bertran Dupont, Inc., 271 NLRB 443 (1984); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I am not persuaded in this case that Dupree would have been discharged in the absence of his pro- tected conduct. Rather, I find all of the circumstances in this case show that Respondent seized upon the alleged violation of rule 9 of the February list of rules for leav- ing a truck a pretext to rid itself of a known union adher- ent. Limestone Apparel Corp., 255 NLRB 722 (1981). B. Union Objection 2 The objection alleges that during the course of the critical period and on the date of the election the Em- ployer interfered with, restrained, and coerced the em- ployees in the exercise of their Section 7 rights. I find that the objection should be sustained as a result of the speech of Frank Wall, the president and owner of Re- spondent, in mid-March 1988 during the critical period wherein he called his employees together for a meeting and told them that he would be required to close his trucking operation as he would lose the Engelhard ac- count (his sole customer) if the employees selected the Union as their collective-bargaining representative. I also find it should be sustained as a result of the various un- lawful acts of interrogation and threats made by Mark Brooks against the selection of the Union by the employ- ees. CONCLUSIONS OF LAW 1. Respondent Springhill Services, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local Union No. 528, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By interrogating its employees concerning their union activities and the union activities of other employ- ees and by threatening its employees with surveillance of their union activities and by threatening its employees with discharge and plant closure if they supported the Union, Respondent violated Section 8(a)(1) of the Act. 4. By discharging and refusing to reinstate its employ- ee Ronnie Dupree because of his engagement in union activities and his support of the Union, Respondent vio- lated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices as found herein in connection with the business of Respondent as found 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 obstruct- ing the free flow of commerce. 6. The appropriate unit is: All truckdrivers employed by the Employer at its McIntyre, Georgia, facility, but excluding all other employees, office clerical employees, guards and su- pervisors as defined in the Act. 7. The challenges to the ballots of Gill Wall, Mark L. Brooks, and Fred Whipple should be sustained and their ballots should not be counted in determining the out- come of the election. The challenges to the ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown are not sustained and their bal- lots should be counted in determining the outcome of the election as they are sufficient to affect the outcome of the election. 8. The Union's Objection 2 to the election should be sustained. THE REMEDY Having found that Respondent has committed viola- tions of Section 8(a)(1) and (3) of the Act, it shall be or- dered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act, including the posting of the appropriate notice. It shall also be ordered to offer full reinstatement to its employee Ronnie Dupree, to his former position, or to a substantially equivalent one if his former position no longer exists with all seniority and other rights previous- ly enjoyed and with full backpay and benefits with inter- est as computed in New Horizons for the Retarded, 283 NLRB 1173 ( 1987).3 Respondent shall also remove from its records any reference to the unlawful discharge and notify him in writing that this has been done. The Election Challenges and Objection I recommend that Case 10-RC-13648 be remanded to the Regional Director for Region 10 with a direction to sustain the challenges to the ballots of Gill Wall, Mark L. Brooks, and Fred Whipple and to overrule the chal- lenges to the ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown and to open and count their ballots. In the event that the tally of ballots shows the employees to have selected the Union as their collective-bargaining representative, I rec- ommend that Union Objection 2 be withdrawn or con- 8 Under New Horizons, interest is computed at the "short term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sidered as moot in the Board's discretion and that the ap- propriate certification be issued by the Regional Direc- tor. In the event the tally of ballots shows that a majori- ty of the voting employees did not select the Union as their collective-bargaining representative, I recommend that the election be set aside and a new election conduct- ed among the employees in the unit at a time determined by the Regional Director for Region 10 after Respondent has complied with the remedial order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Springhill Services, Inc., McIntyre, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their union activities and the union activities of other employees. (b) Threatening its employees with surveillance of their union activities, discharge, and plant closure if they support the Union. (c) Discharging its employees because of their support of the Union and engagement in union activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Ronnie Dupree immediate and full rein- statement to his former position or, if his position is no longer available, to a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay or other benefits he may have sustained by reason of the discrimination against him in the manner set forth in the remedy section of this decision. * 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. (b) Remove the personnel records of Ronnie Dupree with respect to his discharge and notify him in writing that this has been done. (c) 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 the recommended Order. (d) Sign and post copies of the attached notice marked "Appendix"5 immediately upon receipt thereof in con- spicuous places at its McIntyre, Georgia facility includ- ing all places where notices to employees are customari- ly posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) 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 Case 10-RC-13648 be remanded to the Regional Director for Region 10 with a direction to sustain the challenges to the ballots of Gill Wall, Mark L. Brooks, and Fred Whipple and to over- rule the challenges to the ballots of Steve King, James Vernon Henry, Larry Johnson, Joel Bateman, and Ira Brown and to open and count their ballots . In the event that the tally of ballots shows the employees to have se- lected the Union as their collective-bargaining represent- ative, Union's Objection 2 shall be withdrawn or consid- ered as moot in the Board's discretion and the appropri- ate certification shall be issued by the Regional Director. In the event that the tally of ballots shows a majority of the employees have not selected the Union as their col- lective-bargaining representative, Objection 2 shall be sustained and the election shall be set aside and a new election conducted among the employees in the unit at a time determined by the Regional Director for Region 10, after Respondent has complied with the remedial order. 5If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."