Georgia Corp.

552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brown Transport Corp., a Georgia Corporation and Deborah King and Odell Neals and Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees Union Local 710, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO' Drivers Mutual Association, Inc. and Highway Driv- ers, Dockmen, Spotters, Rampmen, Meat Pack- ing House and Allied Products Drivers and Helpers, Office, Workers and Miscellaneous Employees Union Local 710, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 13-CA-24653, 13-CA-24913, 13-CA- 24692, 13-CA-24712, 13-CA-24738, 13-CA- 25301, 13-CA-25841, 13-CB-10820, and 13- CB-10941 September 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On September 19, 1988, Administrative Law Judge Walter J. Alprin issued the attached deci- sion. Respondent Brown Transport Corp. (Brown), Respondent Drivers Mutual Association, Inc. (Drivers Mutual), and the General Counsel filed exceptions and supporting briefs, and Brown and the General Counsel filed answering briefs. 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 briefs and has decided to affirm the judge' s rulings, findings,2 and conclusions as modified, and to adopt the recom- mended Order as modified and set out in full below. 3 ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings. s The judge recommended a narrow cease-and-desist order requiring Brown to cease and desist from violating the Act "in any like or related manner." However, as urged in the General Counsel's exceptions, we find that Brown's misconduct in this case, which violated Sec. 8(a)(I), (2), (3), and (4) of the Act, is sufficiently egregious and widespread so as to demonstrate a general disregard for employees' rights and to warrant issuance of a broad cease-and-desist order. Accordingly, we shall substi- tute the broad injunctive language requiring this Respondent to cease and desist from violating the Act "in any other manner" for the provision recommended by the judge. See H,ckmott Foods, 242 NLRB 1357 (1979) Drivers Mutual represents drivers, dockmen, and other employees of Brown Transport at approxi- mately 80 motor carrier terminals located through- out the United States. On July 2, 1984,4 Brown opened a new terminal in Chicago, Illinois, and ex- tended recognition to Drivers Mutual as the repre- sentative of the terminal's drivers and dockmen. Shortly thereafter, the Respondents applied terms and conditions of the master collective-bargaining agreement to drivers and dockmen employed at the Chicago terminal. For the reasons the judge sets forth in his decision, we agree with his findings that the Chicago employees did not constitute an accretion to the overall unit; that Brown's grant of recognition and application of the contract to Chi- cago employees, and Drivers Mutual's acceptance of Brown's assistance,5 respectively, violated Sec- tion 8(a)(1) and (2) and Section 8(b)(1)(A) of the Act; and that the appropriate remedy includes withdrawal of recognition, nullification of the con- tract as it was applied to Chicago employees, and joint and several responsibility for initiation fees and other moneys Chicago employees paid to Drivers Mutual. In their exceptions, however, the Respondents contend that the judge did not adequately address evidence that a majority of drivers and dockmen at the Chicago terminal voluntarily signed cards au- thorizing Drivers Mutual to represent them, and that Chicago employees consequently were accret- ed into the overall bargaining unit based on their freely expressed desire for representation . We dis- agree. Although the judge made no specific finding that the authorization cards were tainted by the Respondents' coercive conduct, he concluded that Brown repeatedly offered unlawful assistance to Drivers Mutual, which in turn unlawfully used the assistance to solicit membership. The judge fully details the coercive circumstances surrounding the card solicitations, and we need not recount them here except to note that Brown informed job appli- cants, inter alia, that Chicago terminal employees would be represented by Drivers Mutual and affili- ation with any other union would not be tolerated; that Brown introduced employees to Drivers Mutual representatives on company time and prem- ises, where many of the cards were signed; that Drivers Mutual representatives soliciting member- ship reiterated to employees that Drivers Mutual 4 All dates are in 1984 unless otherwise indicated. S Although the judge implicitly found that application of the contract was unlawful and recommended that the parties be ordered to cease and desist from giving effect to it, he did not make an explicit finding We find that Brown and Drivers Mutual violated Sec. 8(a)(2) and (1) and Sec 8(b)(1)(A), respectively, by entering into, maintaining, and enforcing the collective-bargaining agreement for the employees at the Chicago ter- minal 296 NLRB No. 75 BROWN TRANSPORT CORP. was the incumbent union; and that the solicitations occurred in a context of interrogations6 and threats of reprisal.7 Accordingly, we find that the cards do not constitute reliable evidence of employee senti- ment, and adopt the judge's conclusion that Driv- ers Mutual never represented an uncoerced majori- ty of Chicago employees. We also agree with the judge that Brown discri- minatorily discharged employees George Witzell and James Phillips, and discriminatorily failed to recall employee Robert Ronald .8 However, in find- ing that Ronald was not recalled to work because of his union activity, we do so for the following reasons. Ronald was a casual employee who worked as a dockman 37 to 45 hours per week. As a casual employee, Ronald had no set schedule and was told on a day-to-day basis whether work was available. In July 1985, Ronald attended a meeting conducted by representatives of Drivers Mutual. After learning that the Union had not proposed a wage increase for dockmen, Ronald stated that he could earn as much working in a "union barn" for 6 Member Cracraft agrees that under all the circumstances the interro- gations would reasonably tend to restrain , coerce, or interfere with rights guaranteed by the Act In so finding, however, she does not rely on Sunnyvale Medical Clinic , 277 NLRB 1217 (1985). 7 The judge found that Drivers Mutual coercively solicited authoriza- tion cards and reflected that finding in his Conclusions of Law and rec- ommended Order, but he inadvertently failed to include this finding in the notice. The attached notice corrects this oversight. 8 In his Conclusions of Law the judge inadvertently found that Brown's discharges of Witzell and Ronald violated Sec. 8 (a)(1), (3), and (4) of the Act However, the complaint alleged only Sec 8 (a)(1) and (3) violations and the judge's analysis was limited to those allegations We therefore omit the judge's 8(a)(4) finding as it pertains to Witzell and Ronald. We agree with the judge that employee Phillips was discharged in vio- lation of Sec 8(a)(I), (3), and (4), but we correct his inadvertent omission of the 8(a)(4) finding in his analysis In adopting the judge 's finding that Phillips was unlawfully discharged , we note especially that Brown's ter- minal manager, Steven Gonyou, indicated as early as November 1984 that he knew Phillips had previously worked for Overnite Transportation Company and that Gonyou 's informant had told him Phillips was "trou- ble " Gonyou also indicated then that Phillips ' prior involvement with a union at Overnite might cause him to be fired . Brown chose to ignore the evidence that Phillips had lied on his application form (by omitting his employment with Overnite) until after Phillips had voluntarily come for- ward to supply the General Counsel with evidence supporting an amend- ment to the complaint against the Respondent and testified in support of that amendment . Because the General Counsel has proven that Phillips' union connections and his testimony in a Board proceeding were motivat- ing factors in his discharge, and because we agree with the judge that Brown's stated reasons for discharging Phillips were pretextual , it follows that Brown has not made out an affirmative defense under Wright Line, 251 NLRB 1083 ( 1980). The General Counsel contends that the judge inadvertently neglected to include interest in his recommended make -whole remedy for the dis- criminatees. Although he does include interest in the proposed notice, it is unclear from the section of his decision entitled "The Remedy" wheth- er the backpay award includes interest We therefore clarify the judge's proposed remedy by awarding backpay to the discriminatees with interest to be computed in the manner prescribed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987). In this connection we note also that the judge included interest in his recommended Orders for reimbursement of initi- ation fees, assessments, and other moneys paid to Drivers Mutual, but failed to include interest in the notices . Accordingly, the attached notices correct this omission. 553 2 days as he could in a week working for Brown. Subsequently, Ronald worked only 1 day a week for 2 weeks,9 and less senior casual employees re- ceived considerably more work. In the ensuing week, Ronald's name was removed from the casual employee list. The judge found that Brown 's failure to assign available work to Ronald and its removal of his name from the roster of available employees was contrary to company policy. He further relied on the testimony of two employees who stated that Michael Tallaksen, the pickup and delivery and safety supervisor, told them that Ronald's "union barn" remark had come to the attention of Brown's management and that was why he was no longer employed by Brown . Although the judge specifi- cally found that Tallaksen was not a statutory su- pervisor, he observed that Tallaksen was an em- ployee who had frequent and intimate contact with management. Contrary to the judge , we conclude that Tallaksen was a supervisor when he told em- ployees that Brown refused to recall Ronald be- cause of Ronald's "union barn" comment and that because of Tallaksen 's supervisory status, Tallak- sen's remarks are attributable to Brown.1 ° Tallak- sen's statement is consistent with the judge's find- ings that Brown's failure to recall Ronald was not work related , and that its asserted reasons for not assigning work to him were specious . We therefore agree with the judge that Brown discontinued Ronald's employment because of his union activity in violation of Section 8(a)(3) and (1). ORDER The National Labor Relations Board orders that 8 As the Respondents point out, the judge erroneously found that Ron- ald's meeting with Drivers Mutual occurred sometime prior to May 1985, and that his last work assignment was in the week following the meeting. Although the record does not disclose precisely when the meeting was held, Ronald estimated that it took place in early July. His attendance records establish that he worked regularly until July 22, after which he was recalled only once, on July 29 Our revision of the judge's chronolo- gy does not affect our determination that Brown's failure to recall Ronald was discriminatory. 10 In his analysis of Tallaksen's authority, the judge found that Tallak- sen interviewed job applicants but was not the only interviewer, and that he made recommendations based on the interviews Tallaksen testified, in a sworn affidavit, that he had described his duties as including "safety matters and the hiring of personnel " He was the only person to inter- view employee Odell Neals, and following Neals' interview and road test, which Tallaksen himself administered, he recommended to Terminal Manager Gonyou that Neals should be hired Shortly thereafter, Tallak- sen telephoned Neals and told him to report to work Tallaksen was also the only company representative to interview applicant Ronald. Follow- ing the interview, Tallaksen telephoned Ronald and told him he could begin work as a casual At the least, it is clear that Tallaksen effectively recommended both hires, and unlike unit employees, Tallaksen did not punch a timeclock, received a salary rather than a hourly wage, and held a supervisory job title. We therefore find that he is a supervisor within the meaning of Sec 2(11) of the Act. 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. Respondent Brown Transport Corp., a Geor- gia Corporation, Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Recognizing and bargaining with Drivers Mutual Association, Inc. as the collective-bargain- ing representative of Respondent Brown's Chicago, Illinois terminal employees, unless and until the labor organization has been certified by the Nation- al Labor Relations Board as the exclusive bargain- ing representative of any such employees in an ap- propriate bargaining unit. (b) Giving effect to a collective-bargaining agreement with Drivers Mutual Association, Inc. with respect to the Chicago , Illinois terminal em- ployees referred to above, and any modifications, extensions, renewals, or supplements that may have been applied to those employees, provided that nothing in this Order shall require the withdrawal or elimination of any wage increases or other bene- fits, terms, and conditions of employment that may have been established pursuant to the performance of the contract. (c) Assisting Drivers Mutual Association , Inc. to become the representative of Chicago terminal em- ployees, including making facilities available for Drivers Mutual representatives to solicit member- ship, or telling applicants and employees that Driv- ers Mutual represents Chicago terminal employees or that they would have 90 days in which to join that Union. (d) Coercively interrogating applicants and em- ployees about their union support or activities. (e) Threatening employees with discharge and with termination of Brown's trucking operations if they supported a union other than Drivers Mutual. (f) Creating the impression of surveillance, or en- gaging in surveillance by asking employees to report their own or other employees' union activi- ties. (g) Discharging, failing to recall, or otherwise discriminating against employees because they have testified in any Board proceeding, have been named in any unfair labor practice charges or com- plaints, or because they support or oppose any labor organization. (h) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) With Drivers Mutual Association, Inc., joint- ly and severally reimburse all former and present employees employed at its terminal at Chicago, Illi- nois, for all initiation fees, dues, and other moneys, if any, paid by or withheld from them in the manner set forth in the remedy section of the judge's decision. (b) Offer George Witzel, James Phillips, and Robert Ronald immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision with interest to be comput- ed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (d) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, 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. (e) Post at its Chicago, Illinois facility copies of the attached notices marked "Appendix A" and "Appendix B."11 Copies of Appendix A, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative and - copies of Appendix B, after being signed by Drivers Mutual's representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. Respondent Drivers Mutual Association, Inc., Atlanta, Georgia, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Accepting recognition from Brown Transport Corp., a Georgia Corporation, as the bargaining representative of Chicago, Illinois terminal employ- ees, when Drivers Mutual does not represent an " 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 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." BROWN TRANSPORT CORP. uncoerced majority of those employees in any ap- propriate bargaining unit. (b) Acting as the exclusive collective -bargaining representative of the Chicago, Illinois terminal em- ployees referred to above, unless and until Drivers Mutual has been certified by the National Labor Relations Board as the exclusive bargaining repre- sentative of any such employees in an appropriate bargaining unit. (c) Giving effect to a collective-bargaining agreement with Brown Transport Corp . with re- spect to the Chicago, Illinois terminal employees, and any modifications, extensions, renewals, or sup- plements that may have applied to those employ- ees, provided that nothing in this Order shall re- quire the withdrawal or elimination of any wage increases or other benefits , terms, and conditions of employment that may have been established pursu- ant to the performance of the contract. (d) Accepting unlawful assistance and support from Brown Transport Corp. in soliciting union membership, including using Brown Transport fa- cilities for solicitation meetings. (e) Coercively soliciting membership by telling employees that Drivers Mutual already represented them and that they had to sign union membership applications. (f) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) With Brown Transport Corp ., jointly and severally reimburse all former and present employ- ees employed at Brown Transport 's Chicago, Illi- nois terminal for all initiation fees, dues, and other moneys, if any, paid by or withheld from them in the manner set forth in the remedy section of the judge's decision. (b) Post at its offices and meeting halls at Chica- go, Illinois, copies of the attached notice marked "Appendix B."12 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. Additional copies of Appendix B shall be signed by an authorized representative of the Respondent and furnished to the Regional Director for posting by ' 2 See fn . 11. above 555 Brown Transport Corp. in accordance with the Order directed to it above. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX A 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. WE WILL NOT recognize and bargain with Driv- ers Mutual Association, Inc. as the collective-bar- gaining representative of our Chicago terminal em- ployees unless and until that Union has been certi- fied by the National Labor Relations Board as the representative of any such employees. WE WILL NOT give effect to, or in any way en- force, the collective-bargaining agreement purport- ing to cover such employees at a time when Driv- ers Mutual does not represent an uncoerced majori- ty of employees in an appropriate bargaining unit, provided however that this will not require the withdrawal or elimination of any wage increases or other benefits, terms, and conditions of employ- ment established by the agreement. WE WILL NOT assist Drivers Mutual to become the representative of our Chicago terminal employ- ees, including making our facilities available for Drivers Mutual representatives to solicit member- ship, or telling applicants and employees that Driv- ers Mutual represents Chicago terminal employees or that they would have 90 days in which to join that union. WE WILL NOT coercively interrogate applicants and employees about their union support or activi- ties. WE WILL NOT threaten employees with dis- charge, and with termination of our operations, if they supported a union other than Drivers Mutual. WE WILL NOT create the impression of surveil- lance, or engage in surveillance by asking employ- ees to report their own or other employees' union activities. WE WILL NOT discharge, fail to recall, or other- wise discriminate against employees because they testified in any Board proceeding, were named in any unfair labor practice charges or complaints, or because they support or oppose any labor organiza- tion. 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer George Witzel , James Phillips, and Robert Ronald immediate and full reinstate- ment to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or any other rights or privi- leges previously enjoyed , and WE WILL pay each of these employees for any earnings and other ben- efits they lost as a result of our discrimination against them, less any net interim earnings , plus in- terest. WE WILL notify George Witzel, James Phillips, and Robert Ronald that we have removed from our files any reference to their discharges and that the discharges will not be used against them in any way. WE WILL, jointly and severally with Drivers Mutual Association, Inc., reimburse all former and present Chicago, Illinois terminal employees for all initiation fees, dues, and other moneys, plus inter- est, paid by them or withheld from them. BROWN TRANSPORT CORP ., A GEOR- GIA CORPORATION WE WILL NOT coercively solicit membership by telling employees that we already represent them and that they have to sign membership applica- tions. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, jointly and severally with Brown Transport Corp., reimburse all former and present Chicago, Illinois terminal employees for all initi- ation fees, dues, and other moneys, if any, with in- terest, paid by them or withheld from them for ini- tiation fees, dues, or other payments to Drivers Mutual Association, Inc. DRIVERS MUTUAL ASSOCIATION, INC. Sheryl Steinberg, Esq., for the General Counsel. Jack Oswald, Esq. and J. Lewis Sapp, Esq., of Chicago, Il- linois, and Atlanta, Georgia, respectively, for Re- spondent Brown Transport Corp. Nolan Harmon, Esq. and Karsten Bicknese, Esq., of Atlan- ta, Georgia, for Respondent Drivers Mutual Associa- tion, Inc. Reed Lee, Esq. (Asher, Pavalon, Gittler, Greenfield and Segal, Ltd.), of Chicago, Illinois, for the Charging Party Teamsters, Local 710. APPENDIX B 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. WE WILL NOT accept recognition from Brown Transport Corp ., a Georgia Corporation, as the ex- clusive representative of its Chicago, Illinois termi- nal employees, or otherwise act as their collective- bargaining representative, unless and until we have been certified as such representative by the Nation- al Labor Relations Board. WE WILL NOT give effect to, or in any way en- force, the collective-bargaining agreement with Brown Transport Corp. purporting to cover such employees at a time when we do not represent an uncoerced majority of employees in any appropri- ate bargaining unit, provided however that this will not require the withdrawal or elimination of any wage increases or other benefits , terms, and condi- tions of employment established by the agreement. WE WILL NOT accept unlawful assistance and support from Brown Transport Corp . in soliciting union membership, including using Brown Trans- port Corp. facilities for solicitation meetings. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On charges filed and complaints issued as indicated in Ap- pendix C [omitted from publication], General Counsel al- leges that Respondents Brown Transportation Corp., a Georgia Corporation (Brown) and/or Respondent Driv- ers Mutual Association , Inc. (Drivers) engaged in the fol- lowing unfair labor practices, made unlawful by the indi- cated sections of the National Labor Relations Act (the Act). 1. By Brown, in violation of Section 8(a)(1): a. Interrogating employees regarding union activities, sympathies, and/or membership. b. Threatening that if employees did not support Driv- ers, or did support another union, or if prior employment was by a union carrier, not to employ or to discharge the employees, or to cease operations. c. Inducing employees to engage in surveillance and/or creating the impression of surveillance, by re- questing a report if contacted by another union. d. Interfering with Board process by offer of transfer or early vacation, or to stay at another's residence to avoid Board subpoena. 2. By Brown, in violation of Section 8(a)(1), (3), and (4): a. Discriminatorily terminating the employment of Witzel, Ronald, and Phillips. 3. By Brown and Drivers, in violation of Sections 8(a)(1) and (2) and 8(b)(1)(A), by: BROWN TRANSPORT CORP. a. Executing a bargaining agreement for a minority of uncoerced employees. b. Offering, and accepting, recognition as bargaining agent of a minority of uncoerced employees. c. Coercively soliciting membership in Drivers Mutual. A hearing was held before me at Chicago, Illinois, and Atlanta, Georgia, covering 31 days between July 15, 1985, and July 2, 1986. After several extensions, briefs were thereafter filed by General Counsel, counsel for each of the Respondents, and counsel for Charging Party Union. On the entire record of the case, and particularly on my observation of the witnesses and their demeanors, I make the following FINDINGS OF FACT I. JURISDICTION AND BACKGROUND Brown is a motor common carrier with principal of- fices at Atlanta, Georgia. It employs approximately 3000 persons at over 80 terminals located at points throughout the country . It admits that it is, and I find it to be, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Drivers has for approximately the past 20 years been the certified bargaining agent of a unit at each of Brown's terminals, consisting of over-the-road intercity drivers, city pickup and delivery drivers, dockmen, war- ehousemen , mechanics' helpers, and garage servicemen. Drivers Mutual represents only employees of Brown, and it is the only union representing this unit of Brown employees. With offices in Atlanta separate from Brown, Drivers Mutual has its own officers and employees, meets expenses from membership dues, employs inde- pendent counsel, and negotiates contracts or riders for unit employees at individual terminals . It admits it is and I find it to be a labor organization within the meaning of Section 2(5) of the Act. Though not directly in evidence as part of the record, General Counsel's argument draws upon the public knowledge of Brown's prior participation in Board pro- ceedings, referred to as Brown 1, 140 NLRB 954 (1963), and Brown II, 239 NLRB 711 (1978). These two deci- sions demonstrate Brown , particularly through the ac- tions of its president, Isaac Hemmings, as having violated the Act by engaging in such unlawful labor practices as soliciting, threatening, and coercing drivers to prevent them from joining the Teamsters Union, and as soliciting, encouraging, and coercing them to form their own labor organization or to join an independent "committee." Brown II also found that Drivers had acted in concert with Brown in coercive solicitation , and to have violated its duty of fair representation by failing to arbitrate on behalf of a unit member because of his active Teamsters support. A. Opening the Chicago Terminal 1. Reasons for opening A motor carrier cannot have a terminal at each and every point it serves within its authorized territory. Ship- ments of less than truckload (LTL) size from a point 557 may be picked up there for transportation directly or, as in the usual case, indirectly toward destination . If indi- rectly, it is brought to the terminal from which pickup service originated, offloaded, and reloaded with other LTL shipments going in the same direction . The same method, in reverse, is utilized for final delivery of the shipments to points in the vicinity of the delivering ter- minal. The drivers operating the longer distances be- tween terminals are referred as "over -the-road" drivers, while those making local trips originating from and re- turning to a single terminal may be referred to as "local drivers," "city drivers," or "peddle run drivers." At times the carrier providing the over-the-road long haul will not have a convenient terminal for the origina- tion or termination by the peddle run drivers . In such cases, the long-haul carrier will contract with a local ter- minal for these services. Brown did not have a Chicago terminal , but operated through contract with a subsidiary , whose drivers were represented by the Teamsters . In early 19841 Brown de- cided to open its own terminal to serve the Chicago area. An alleged antiunion basis for doing so is herein- after described . In March, Brown hired Steven Gonyou as the terminal manager , and gave him orientation and training at Atlanta headquarters and at other Brown ter- minals. Gonyou hired his direct staff, William Pollard as operations manager, Robert Saillez as dispatcher, and Robert Hausner and Michael Sobieski as dock supervi- sors. 2. Hiring procedures No attempt was made to staff the Chicago terminal with transfer of any employees from other terminals. In- stead, flyers were distributed locally and advertisements placed in local newspapers, announcing job interviews to be held at a local motel toward the end of May. Brown's personnel manager , Glenn McCravey, came from Atlan- ta to conduct the interviews, assisted by Gonyou and his assistants, Pollard and Hausner, who were initially briefed by Gonyou and then given further instructions by McCravey. McCravey specifically told Pollard and Hausner what questions to ask, what information to obtain from applicants, and how to respond to appli- cants' questions. Approximately 100 applicants appeared the first day, but only 40 to 50 application forms were distributed, to those having at least 12 months' driving experience, a minimum standard stated by McCravey. Brown expected to hire about 20 city drivers for Chica- go. The application forms, obtained by Brown from a na- tional transportation trade association and used by Brown for hiring throughout its system for a long period of time, included the question "Labor Union Affiliation (the Union and Local)." McCravey returned to Atlanta, and interviewing by Pollard, Hausner, and, on occasion, by Gonyou contin- ued for 3 to 4 additional days. A number of those inter- viewed were contacted by Atlanta or Chicago personnel and directed to return to the motel for second inter- views, conducted over 3 days by McCravey, Pollard, ' All dates are in 1984 unless otherwise indicated. 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hausner, and Gonyou. Sidney McMain, polygraph oper- ator from Atlanta, frequently used by Brown over an ex- tensive period , also participated though not authorized to do polygraphy in Illinois. Applicants were told that Drivers Mutual represented Brown's employees at all terminals and that they would have 90 days in which to join Drivers Mutual if em- ployed. One driver alleged that he was also told that em- ployees would not be represented by either the Team- sters or by the Chicago Independant Union . The appli- cants were then asked questions including the following: By McCravey, whether applicants belonged to a union or were Teamsters, and how the applicant would feel working for a nonunion company; by Gonyou , whether they belonged to a Teamsters Union , and how they would feel about working without a union. In administering the 15 polygraph tests he gave, McMain asked questions, contrary to Illinois statutes, re- garding union membership and preferance . As to all questions on which he felt a polygraph reading was not satisfactory, including questions involving unions, McMain would go back to the questions until all re- sponses were clarified. During the interview process Gonyou and/or Hausner allegedly told drivers, prior to having received approval by Atlanta personnel , that they would be hired. This was denied by McCravey, who testified that he discussed all the drivers he was considering with Gonyou , but that the decisions were made by the Atlanta personnel de- partment, which checked applicants' state motor vehicle records. Immediately before, and after the terminal opened on July 2, additional drivers and dockmen were required. These were interviewed at the Chicago terminal by Gonyou, Pollard, and/or Hausner. Brown's Atlanta per- sonnel department was said to have been involved in the hiring process by checking the applicants ' state motor vehicle records. Brown did hire drivers who had been Teamsters members and/or worked for employees deal- ing with the Teamsters. 3. Orientation of new employees at Atlanta During the period of 3 weeks before the Chicago ter- minal opened, drivers were sent to Atlanta in three sepa- rate groups for orientation and to drive vehicles from the Atlanta terminal to and for the use of the Chicago termi- nal. Dockmen were never required to go to such an ori- entation at or training by personnel from Atlanta, nor were those drivers hired immediately prior to or after the Chicago terminal opening. The first group of drivers sent to Atlanta consisted of eight men. They were told by William Parsley, then vice president/operations, that Drivers Mutual represented all of Brown's drivers, and allegedly though denied by Pars- ley, that Brown had had union problems at other termi- nals which it closed in order to avoid representation by anyone other than Drivers Mutual , and that they would do so again at any terminal, including Chicago, if em- ployees became affiliated with Teamsters or any union other than Drivers Mutual. The first group of drivers were introduced by Brown's management to representatives of Drivers Mutual, who took them to dinner, told them that Drivers Mutual rep- resented Brown's drivers and dockmen at all terminals and would cover such employees at the Chicago termi- nal, and that the new employees had to sign union au- thorization cards before leaving Atlanta. The eight were told to elect from among themselves a committeeman to represent Chicago terminal employees , and they elected Frank Scaglione. When the second group of drivers came to Atlanta, Parsley allegedly made similar state- ments to them, they were introduced to representatives of Drivers Mutual who took them to lunch, made similar statements to them, and had them sign union authoriza- tions but told them that Scaglione had already been elected their committeeman . The third group of drivers did not remain in Atlanta as long as the first two, due to the approaching opening date of the Chicago terminal, and did not meet with representatives of Drivers Mutual until opening day, as hereinafter discussed. 4. Opening day contacts On the Chicago terminal's opening day, July 2, those drivers who had not met with representatives of Drivers Mutual in Atlanta were, after clocking in and reporting to dispatcher Saillez, told to attend a meeting being held on Brown premises, during working hours, by Dan Howard, an officer of Drivers Mutual. The drivers to attend the meeting were those in the third group to visit Atlanta, and those hired immediately prior to opening who had not been needed to drive equipment from the Atlanta to the Chicago terminal and who had not been sent to Atlanta. Howard made the following statements at that meet- ing: that Drivers Mutual represented all of Brown 's driv- ers and dockmen, and that new employees at new termi- nals were automatically also represented by Drivers Mutual; that the first two groups of drivers to go to At- lanta had already joined and that it was customary for employees to join the Union. Cards were then distributed for the other drivers to sign. Dockmen, none of whom had previously joined Driv- ers Mutual, were also directed by their supervisor after clocking in to attend such a meeting with Howard, where similar statements were made and dockmen exe- cuted union authorization cards for Drivers Mutual. B. Terminal Operations Interterminal freight was routed in and out of Chicago by Atlanta. The following describes intraterminal oper- ations within the Chicago terminal area. Gonyou was responsible for day-to-day operations, set- ting policy, establishing work rules, city routes from the terminal, job classifications, vacations and leave sched- ules, and hiring and firing of new personnel subject to motor vehicle board record checks done by Atlanta, and based on interviews by other Chicago supervisors. Gonyou met with drivers or their committeeman for the first attempts at grievance settlement, but continuation of a grievance, through the committeeman and Drivers Mutual, would have to be processed at Atlanta, though there is no evidence of such ever having taken place. BROWN TRANSPORT CORP. Brown's regional manager at Detroit is responsible for Chicago and 18 other terminals . He does not regularly visit the terminal , nor do Atlanta personnel. The local terminal arranges hiring , scheduling, and replacing local employees, and Brown employees from other terminals are never utilized. In only one instance did an employee of the Chicago terminal transfer to another terminal, that in Florida and not within the same region , and only after having committed an act which called for discharge. The local terminal schedules and arranges safety meetings, performs 90 to 95 percent of vehicle repairs, and ar- ranges all accident investigations and spot checks of driver performance . The Atlanta safety manager visits once each year. As the Chicago terminal operations manager, Pollard exercises, inter alia, the following authority : he solicits and interviews prospective employees, schedules current employees, determines number and identity of casual em- ployees to work, assigns drivers to runs of specified loca- tion, time, and duration, and authorizes leave, sicktime, and overtime. He is identified to employees by the gener- al manager as a supervisor, is considered by employees to be a supervisor, and executes various documents as a supervisor. As the only individual to interview some em- ployees prior to their being hired, he obviously either hired them or successfully recommended their hiring. For purposes of the Act, Pollard is supervisor.2 As the Chicago terminal dispatcher, Robert Saillez ex- ercises, inter alia, the following authority : he approves timecard modifications, sick leave, personal days off and time off for injuries, determines whether drivers who report by phone that they will be late should work that day at all, obtains replacements from among "extra" un- assigned drivers, and reschedules assignments to other routes. For purposes of the Act, Saillez is supervisor.3 Originally hired as a driver on October 8, Michael Tallaksen was given additional authority as P & D (pickup and delivery) and safety supervisor. As such he had, inter alia, the following authority : to interview pro- spective employees and for some, but not all, to make recommendations as one but not the only interviewer, and to conduct safety investigations . For purposes of the Act, Tallaksen is not a supervisor. Operational control of the following matters, among others, was exercised by local personnel at the Chicago terminal : starting times, numbers of drivers and dock- men, regular and modified temporary and permanent routings, work rules supplementing or supplanting sys- temwide rules, scheduling and selecting safety meeting topics, recommending employee hirings exclusive of state motor vehicle record checks, firing employees, assigning and approving overtime and leave time. Interterminal routings, billings, and paperwork was generated system- wide by the Atlanta office, which also controls labor re- lations with Drivers Mutual and with employee griev- ances except for initial settlement attempts at local termi- nals. The Atlanta office is 700 miles from the Chicago Y Atomco Carburator Co, 275 NLRB 1, 3 (1985). 8 Hillside Bus Corp., 262 NLRB 1254, 1270 (1984), Spring Valley Farms, 272 NLRB 1323. 1330 (1984), and Serendippity-Un-Ltd, 263 NLRB 768, 771 fn. 4 (1982) 559 terminal, and the closest two other terminals are respec- tively 150 and 90 miles distant . What regional supervi- sion exists is through Detroit, 266 miles distant, which oversees 18 additional terminals . With one exception, there has been no interchange of an employee between any other terminal and Chicago, and the one exception was transfer of a disciplined driver to a terminal outside the region. C. Other Management/Employee Contacts Various other employees made allegations of interro- gation regarding union status, history, and attitudes at times other than initial employment, and of surveillance. Former employee Odell Neals testified that P & D Su- pervisor Tallaksen, who is not a supervisor for purposes of the Act, questioned him regarding a specific union contact, specifically asked if he was "signing papers" for the Union, and discussed the matter in his presence with Terminal Manager Gonyou, who is a supervisor, after warning Neals to stay away from "those guys," referring to Local 710 personnel. Alleged discriminatee Phillips testified that Terminal Operations Manager Pollard , a supervisor, asked him in an afterwork social conversation at the local bar, who he knew in the Teamsters, and whether he had signed a card for the Teamsters. The conversation was not denied . He also testified that at another afterhours, a social meeting at the local bar, Terminal Manager Gonyou, a supervisor, asked if he had attended any Local 710 meetings, who was present at such meetings, how he had heard about the meetings, and whether such meetings were "successful ." Shortly afterward, he was asked by Tallaksen, not a supervisor, in Tallaksen's office, about union meetings. George Witzel, another al- leged discriminatee, testified that while a probationary employee he was questioned at the workplace , by Termi- nal Manager Gonyou, as to what the Local 710 repre- sentative, with whom the employee had just met, had wanted. All the drivers were told by Terminal Manager Gonyou that he had reports of drivers being followed, stopped, and talked to by representatives of Local 710, and that any time this happened Brown wanted to know about it. Drivers were also told the same thing by Ter- minal Dispatcher Saillez, who also told driver Berg- stresser that if stopped he should talk to Local 710 repre- sentatives so that he could report the contents of the conversation to Brown. D. Discharge of Witzel Brown requires new employees to complete a 90-day probationary period, after which they become permanent employees unless the terminal manager requests dis- charge. Witzel was one of the original drivers hired, and a member of the second group of employees to go to At- lanta. He testified that while in Atlanta he had asked Parsley whether employees would have a union and that Parsley responded that if any employee was affiliated with the Teamsters or any other union they would, as per company policy, immediately be fired . Parsley denied such statement. Approximately July 11, Witzel 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and another driver, Laxner, stopped for lunch at a hot dog stand, where they were approached by Wade, an or- ganizer for Local 710. After their conversation, Witzel and Laxner returned to the terminal . Gonyou learned of the contact from Laxner, and allegedly told Witzel that since Drivers Mutual was a union representing all em- ployees, he would be fired if he attempted to contact or become affiliated with Local 710, a statement denied by Gonyou. However, Witzel thereafter discussed Local 710 with other drivers. On September 7, Witzel returned to the terminal and was told to see Gonyou. Gonyou, in the presence of Pol- lard and of Regional Manager Rollinson , told Witzel that he had not satisfactorily completed his probation period and was being terminated . In response to Witzel's ques- tion, Gonyou allegedly gave as reason that Witzel was terminated because of his abusive language and of his "outside contacts," which statement was denied by Gonyou. Phillips, another alleged discriminatee, testified that he later asked Saillez the reason for the termination of Witzel, and that Saillez stated it was because Witzel was attempting to organize for the Teamsters. Witzel's record as a driver was good , and he was awarded a pay increase after two -thirds of his probation- ary period. Gonyou testified that he based his decision to terminate Witzel on alleged complaints from Saillez that Witzel used abusive language and challenged Saillez' au- thority before other employees. Witzel also had a con- frontation with Scaglione over the position of commit- teeman for Drivers Mutual , leading to what was at the hearing very evident personal animosity between them, but there is no evidence that this was transmitted to Gonyou. E. Failure to Reemploy Ronald Robert Ronald applied for employment at Brown sometime during February 1985. On March 8, 1985, he was told by Tallaksen to come in and talk about his ap- plication, and when he did so was told by Tallaksen, ac- cording to Ronald's contested testimony , to falsify the application so as not to show prior employment by union carriers, for Tallaksen otherwise would not be permitted to hire him. Ronald was told to report that night for work as a casual dockman, which he did. He was then told to report for the same work on Sunday, which he also did. He thereafter worked for about 4 months from 37 to 45 hours per week, being advised at the end of the work shift, or by phone, when next to report for work. Casuals were called to work on the basis of seniority. His work was satisfactory, and when the more senior casual dockmen were made permanent was told that he also would become permanent at the next vacancy. Some time prior to May 1985, representatives of Driv- ers Mutual were at Brown and Ronald asked about a proposed wage increase for dockmen . After Ronald was told that there were no such proposal, Ronald loudly commented that he could earn as much in 2 days at a "union barn" as he could in a week at Brown. The fol- lowing week Ronald was called to work for only 1 day each week, and for 11 hours on that day. Thereafter, Brown never recalled him to work. Ronald testified that he phoned in to ask for work 3 days per week, but Pollard denied this. Gonyou testified that Ronald was not recalled for additional work because business was slow and he was not needed . In fact, how- ever, less senior casual dockmen had been assigned more worktime than Ronald when Ronald was only given one 11-hour day per week, and were working when Ronald was not working at all. Gonyou also testified that pursu- ant to Brown's policy, after Ronald had not been called to perform casual work for 1 week his name was deleted from the list of casuals. Examination of rosters showed that this was not Brown's policy at all. Two dockmen, employed by Brown at the time of the hearing , appear- ing under General Counsel's subpoena, testified that Tal- laksen told each of them that Ronald's statement about more money at a union shop had "gotten back" to the "front office" and that such was the reason for his no longer working at Brown. Tallaksen did not deny making such a statement. F. Contacts With and Discharge of Phillips Phillips began work as a driver when the terminal opened on July 2, and was one of the drivers not sent to Atlanta. Gonyou invited Phillips to the local bar one evening after work in November, while Phillips was still in his probationary period , and in a social atmosphere told Phillips he had received information that Phillips had been "in some trouble" with a former trucking company employer. Phillips admitted that this was so in response to a question, that he had been involved there with a union. Phillips testified that Gonyou told him to keep a low profile because he would be fired if Respondent Brown learned this . In January 1985, Phillips attended a Local 710 meeting and shortly thereafter , while talking to Gonyou in his office, was asked if the meeting had been successful, and was told that if Parsley found out about Local 710 organizing that he would "close the doors." In another conversation with Pollard, in the same local bar, Phillips was asked by Gonyou whether he had any affiliation with the Teamsters, and the identi- ty of those persons he knew with the Teamsters and whether we had signed a Teamsters' "card." Gonyou denied these statements. Prior to the start of this hearing Phillips met with Re- spondent's counsel for a discussion of the statement which Phillips had given the General Counsel . Phillips testified that he was thereafter phoned by Tallaksen, was told that Respondent's counsel was not happy about the conversation, and that it would be better for Phillips to "be a company man." Phillips was subpoenaed to appear on July 17, 1985 , but failed to do so. He later testified he had learned that he was to be subpoenaed, and that Tal- laksen had offered to help him avoid service by (1) ar- ranging for his vacation to be moved forward a week, which was done, (2) to assign him to an out-of-town run, (3) to transfer him anywhere outside of Chicago in Brown's system, or (4) to permit Phillips to live at his home rather than his own . Tallaksen denied making these offers or in any manner seeking to help Phillips evade Board process. BROWN TRANSPORT CORP. The subpoena was served and, as noted above, Phillips did not appear. Arrangements were later made for him to testify on December 15, 1985, at which time he an- swered all questions on direct examination , but on cross- examination refused to answer questions regarding his former employment with another trucking company, claiming protection against self-incrimination. He was ad- vised by the administrative law judge as to the bounds of such protection, was permitted to consult with counsel for Respondent Drivers Mutual , and, on his continued refusal to testify, was excused until January 27, 1986, when he continued in his refusal. Phillips telephoned counsel for General Counsel, and a meeting at Phillips' home was scheduled shortly thereaf- ter, on February 23, 1986. At that time Phillips first ad- vised the Board of and gave General Counsel a sworn statement regarding the meeting with Respondent's counsel, the statement by Tallaksen regarding that meet- ing, and Tallaksen's alleged statements regarding evasion of Board process, referred to above . On March 26, 1986, Phillips was called to testify and General Counsel moved to amend the complaint to include the matters in Phillips' affidavit. The motion to amend was denied, Phillips gave his testimony over objection as an offer of proof, Re- spondents declined to cross-examine , and the hearing was recessed pending special appeal by General Counsel of the rejected amendment. While the special appeal was pending, on April 3, 1986, Phillips' employment was terminated by Brown, as described below, and an additional charge thereon was filed with the Board . On April 16, 1986, the hearing was continued, with Phillips being cross-examined by Re- spondents on his prior testimony, and admitting that his prior refusal to answer questions regarding prior employ- ment was based not on fear of self-incrimination but on fear of being discharged because of false statements on his job application . On April 22, 1986, the Board issued a complaint on Phillips' discharge, and on July 1, 1986, motion by counsel for General Counsel to further amend the complaint to consider the new charge was granted. Phillips testified as follows : On April 3, 1986, he was told to return to the terminal and did so shortly after 3 p.m. He was told that Gonyou wanted to see him and was escorted to Gonyou's office, where McCravey was also present. McCravey told Phillips that he had made misstatments to the employer by reason of which his bond, a requirement for employment , was no good. McCravey gave Phillips the option of resigning, in which case he would be given a letter of recommenda- tion, or of not resigning, in which case he would be ter- minated. Phillips chose the latter, and was terminated and escorted off the premises. McCravey testified that Phillips had been terminated because of dishonesty , or lying, in that Phillips' work ap- plication did not report his prior employment by another motor carrier, nor his having suffered a "work related injury" in that employment, nor a prior criminal convic- tion, nor adverse items on his state motor vehicle records. The actual application is not a part of the record, and it is highly questionable whether any evidence of al- leged dishonesty or lying on the document should be considered. In any event, "dishonesty" or "lying" are 561 not stated as grounds for termination by Brown's rules or freight handling manual except as to theft of merchan- dise. Neither insurance nor bonding carriers were con- tacted by Brown as to the effect of the alleged dishones- ty or lying, or as to whether Phillips could still be bonded. The alleged "conviction" related to being placed on probation , resulting in a serious question for counsel and layman alike as to whether such act consti- tutes "conviction." The alleged "on-the-job injury" con- sisted of inhaling toxic fumes, which Phillips did not consider an "injury" related to his work as a driver. Damage claims which were not charged by the employ- er to his responsibility were not considered by Phillps to have been reportable on the application . Traffic tickets issued him were to be discharged by the traffic court after supervision, and thus also considered by Phillips as not remaining on his record or reportable 10 years later. All of these charges were not developed by Brown as reasons for discharge, but were developed by Brown's counsel to discredit his testimony, were not developed until after Phillips had testified adversely to Brown, and were apparently not verified by Brown, whose employ- ees after prompting by counsel refused cross-examination on the issue based on attorney -client privilege. McCravey also testified that the alleged false state- ments on a drivers' employment record were contrary to Department of Transportation regulation , which state- ment he was, however, unable to substantiate . McCra- vey's testimony on this point was contrary to his prior testimony regarding the supervision of hiring by Brown's Atlanta terminal through its efforts in verifying state motor vehicle records. Since such efforts were not made in all cases it appears that Brown 's Atlanta terminal might not have contributed to the hiring process at Chi- cago. Brown presented records of five drivers allegedly ter- minated for falsifying employment applications. Of these, two had been terminated after Phillips; one was terminat- ed because the falsification was that he did not report that his brother was also employed by Brown , which has a strict "no relatives" employment policy ; one was termi- nated during his probationary period ; and the last was terminated after being charged with several accidents in addition to the alleged falsification . Further, a Brown employee discovered to have falsified an employment ap- plication is, by Brown policy, given an opportunity to explain his action and not fired if he has an excuse, while Phillips was not given this opportunity. Finally, two of Brown's employee witnesses testified that they had falsi- fied their applications, but so far as is known , they were not terminated. 11. ADDITIONAL FACTS AND DISCUSSION A. Claim of Accretion and Attendant Violations Drivers Mutual and Brown were charged with violat- ing the Act by executing a bargaining agreement for a minority of uncoerced employees, by offering and ac- cepting recognition as bargaining agent of a minority of uncoerced employees, and by coercively soliciting and aiding in the solicitation of members . All these charges 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD must be considered in the light of whether the opening of the Chicago terminal constituted a proper accretion authorizing the already recognized union to act as sole bargaining agent. As defined in Safeway Stores, 256 NLRB 918, 924 (1981), an accretion is "the addition of a relatively small group of employees to an existing unit where these addi- tional employees share a sufficient community of interest with the unit employees and have no separate identity. The additional employees are then properly governed by the unit's choice of bargaining representatives ." (Emphasis added.) The issue is thus narrowed to whether the Chi- cago terminal employees share a sufficient community of interest with the unit, and have no separate identity. The Board will generally consider the following fac- tors: ( 1) The degree of actual interchange of employees, of which here there has been virtually none; (2) the day- to-day supervision of employees , which is in this matter entirely at the new unit; (3) the geographic proximity of units, which here is lacking; (4) the integration of oper- ations, which here does exist to some extent ; (5) the simi- larity of working conditions , which here exists as to all local drivers and warehousemen, but not as to long-haul drivers; (6) the number of employees to be acquired, which is here small compared to the existing overall op- eration; (7) the collective-bargaining history, which is here known only to the extent of the Brown I and Brown II decisions; and (8) the common control over labor rela- tions, which is here minimal . Safeway Stores, 276 NLRB 944 (1985); Save-it Discount Foods, 263 NLRB 689 ( 1982); Westwood Import Co., 251 NLRB 1213, 1229 (1980). The burden of proving accretion is generally on Respondents, Towne Ford Sales, 270 NLRB 311 (1984), and the Board "will not, under the guise of accretion , compel a group of employees, who may constitute a separate appropriate unit, to be included in all overall unit without allowing those employees the opportunity to expressing their pref- erence in a secret election." Melbet Jewelry Co., 180 NLRB 107, 110 (1969). Substantial supervisory and operational control has here been vested in local supervisors and specifically in the local terminal manager . The starting times for city drivers and dockmen are established by the local termi- nal manager who, with local supervisors, determines the number of drivers and dockmen who are to begin work at each start time . The local terminal manager is respon- sible for establishing routes and for making permanent route modifications . Local supervisory personnel, specifi- cally the dispatcher, may independently modify routes on a temporary basis. The local terminal manager estab- lishes the manpower requirements and is responsible for ensuring that the local terminal is properly manned. The local terminal manager has the power to establish supple- menting and supplanting work rules at the facility and has done so. The terminal manager is also responsible for holding the periodic safety meeting requried by Atlanta personnel, for scheduling such meetings at his own dis- cretion, and for ensuring not only that topics required by Atlanta are covered in such meetings but also that any subject of local concern which he feels should be ad- dressed at such meeting is covered . The local terminal manager also approves vacations, evaluates employees and is responsible for all training. Local supervisory per- sonnel make shift, job and route assignments , assign overtime when it is worked, and grant time off. All of the above functions are accomplished without input from Atlanta. After the completion of the initial job inter- views, new job applications are made directly to Chica- go, and applicants are interviewed by local supervisors and undergo local preemployment testing and physicals. With respect to hiring, employees have started to work at Chicago before their papers have reached Atlanta and clearly before Atlanta has had any time to review or take any other action with respect to such application. One driver without the 12 months of experience required by Atlanta policies was hired by the local terminal man- ager. The "processing" by Atlanta, is said to consist of performing a check on a newly hired driver's motor ve- hicle record (MVR) to ascertain that he has correctly represented such record on his application , but in several instances this obviously was not done. Although deci- sions about terminations and hiring are technically sub- jects to Atlanta approval , as a practical matter such au- thority rests with the local terminal manager since he supplies the information upon which Atlanta makes such decisions. Atlanta personnel do not perform independent investigations into termination recommendations. Visits from Atlanta personnel are rare. Since the record establishes that immediate supervision and day-to-day concerns of employees at the new unit are separate and autonomous from those of employees at other terminals in Respondent Brown's operation, this separate supervision and the independence of its manager weigh heavily against a finding of accretion . The auton- omy which exists in Chicago's daily operation is not erased merely because such operation is passively over- seen by central corporate personnel in Atlanta. Although it is undisputed that all negotiations for the nationwide contract and the wage riders occur in Atlan- ta, these contracts contain numerous riders establishing wages at each local terminal. It is clear that the extent of common control of labor relations is insufficient to negate the separate community of interest of the employ- ees at Chicago. Another factor to be considered is the geographical separation between Chicago and other of Respondent Brown's terminals including Atlanta. As the evidence in the record illustrates, the closest terminal to Chicago is in Milwaukee, Wisconsin, over 90 miles distant. The second closest is the local terminal located in Indianapo- lis, Indiana, which is in excess of 150 miles distant. Lastly, the Atlanta, Georgia headquarters and terminal is located approximatley 700 miles from the Chicago termi- nal. These geographical distances also underscore another factor which is of importance in this analysis: the fact that the Chicago terminal operates independently of other facilities operated by Respondent Brown with re- spect to operational interchange . As the record clearly il- lustrates, none of the routes operated by city drivers overlap routes originating from any other facility. The only instance of interchange of unit personnel at Chicago involved the transfer of one driver from Chicago to the BROWN TRANSPORT CORP. Tampa terminal . Such transfer occurred only afer the driver had been discovered carrying unauthorized pas- sengers in his truck, a work rule infraction warranting automatic termination . There is no evidence of any tem- porary interchange of employees between terminals, something made extremely difficult by the geographic distances involved. Given this minimal percentage of interchange and the fact that the one instance of such interchange involved an employee transferring away from Chicago, the lack of interchange weighs heavily against a finding of accretion. In considering the integration of Respondent Brown's operations, we note that the type of equipment utilized in its business, the skills possessed by employees, the work- ing conditions, and the fringe benefits are similar throughout the entire system . However, two things are important to note. The first is that the repair work per- formed on the equipment assigned to the facility is, for the most part, performed locally on the premises of the facility. Second, although Respondent Brown's freight handling operation is integrated nationwide and the freight moves throughout the entire system, the integra- tion involves only paperwork and the movement of the freight itself and engenders minimal contact between unit employees and employees working at other terminals. B. Threats Threats of plant closing should employees engage in union or other protected and concerted activities clearly constitute violations of Section 8(a)(1) of the Act. Gissel Packing Co. v. NLRB, 395 U.S. 575 (1969); Nissen Foods (USA) Co., 272 NLRB 371, 379 (1984). The issue of witness credibility is paramount to this and the other nonaccretion aspects of this proceeding. Employee witnesses can generally be expected to testify in a manner which favors their continued employment and livelihood , and thus the credibility of witnesses still employed by Respondent which might adversely effect their continued employment should be given greater weight. Durango Boot, 274 NLRB 361, 368 (1980); Geor- gia Rug Mill, 131 NLRB 1305 fn. 2 (1961). Thus, particu- lar attention should be paid to the testimony of witnesses Rathunde, Bergstresser, Weitendorf, Smith, and, for the testimonial periods while still employed, Phillips.4 In terms of the allegations of threats, Rathunde's testi- mony that Parsley told a group of drivers in Atlanta that Brown had had trouble with the Teamsters Union and had and would close a terminal rather than "go union," and that Terminal Manager Gonyou and other Brown representatives had made similar statements, is more plausable than are the denials by Parsley, Gonyou et al. Though of lesser weight, the testimony of former em- ployee Bachman and alleged discriminatee Witzel con- firmed Parsley's statements in this regard . Former em- ployee Quinn confirmed such a statement by Gonyou. Former employees Neals and Ronald , who is also an al- leged discrimnatee, also testified that during interroga- tion, dealt with below, there was an implied threat by 4 Particular aspects of the weight to be given to this witness are con- sidered in the portion of this initial decision dealing with Phillips' dis- charge 563 Tallaksen of discharge for union membership or prefer- ance.5 Alleged discriminatee Phillips' testimony, while still employed, confirmed Parsley's threats delivered in Atlanta, and that Tallaksen made an implied threat of discharge because, as a "man on the fence" he had better cooperate more to the liking of Brown's counsel and "be a company man." Phillips also testified that Gonyou had expressed displeasure with Phillips and Bergstresser, and threatened that they would be discharged for their "be- trayal" after the proceeding had concluded. Threats of plant closure if employees engage in union or other protected concerted activities have long been ruled to constitute violations of Section 8(a)(1) of the Act6 as have threats of unspecified reprisals or dis- charge.7 Under the testimony credited above, there is no doubt that Respondent did, in numerous instances, vio- late Section 8(a)(1) of the Act by uttering threats to em- ployees contrary to their rights to engage in union or other protected concerted activities. C. Interrogations In determining the issue of unlawful interrogations, greatest credibility must also be given to the statements of witnesses employed by Respondent at the time of their testimony. Rathunde testified that during his initial interview ses- sion he talked to McCravey, Respondnet's personnel manager, who asked if he belonged to "the Union," and how he would feel working for a nonunion employer. He was asked the same questions in a second interview, by Terminal Manager Gonyou, and still another time by McMain, during the polygraph testing. He also stated that he heard McCravey ask other applicants the same questions. Phillips, testifying while still employed by Re- spondent, stated that during his first interview, with Pol- lard, he was asked whether he was a Teamsters member. Discrimnatee Witzel's testimony confirmed such ques- tioning. In addition to the prehiring interrogation, there was the undenied testimony that Gonyou had asked alleged discriminatee Witzel what Local 710 had wanted when he lunched with Wade. Alleged discriminatee Phillips testified to a conversation at the local bar with Pollard in which he was asked whether he had any affiliation with the Teamsters, whether he had signed a "card," and what the Teamsters might do if he turned his back on them; and, by Gonyou in another conversation at the local bar, who had been at a union meeting and what had transpired. The Board considers interrogations of employees to be violative of Section 8(a)(1) of the Act where, "in all of the circumstances," it reasonably tends to restrain, coerce or interfere with rights guaranteed by the Act8 in See E. 1. du Pont & Co, 257 NLRB 139 , 140 (1981). Gissel Packing Co. Y NLRB, supra; Nissen Foods (USA) Co, supra 7 E I du Pont & Co, supra, Enterprise Products Co., 265 NLRB 544, 548 (1982), Offshore Shipbuilding, 274 NLRB 539 ( 1985), American Medi- cal Transport, 272 NLRB 285, 292 (1984), Genwal Coal Co, 275 NLRB 528, 545-546 (1985) 8 Rossmore House, 269 NLRB 1176 (1984) 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD view of the totality of the circumstances, without ignor- ing the realities of the workplace and the history of hos- tility toward, threats to, or discharge of union support- ers.9 The "balancing test" discussed in Raytheon Co., 279 NLRB 245 (1986), included the status of the party inter- rogated and the location and initiator of the interroga- tion. As job applicants, these individuals interrogated were particularly vulnerable to restraint and coercion, though interviewed on neutral ground and whether or not later hired.' 0 Considering that in addition to such prehiring coercions, posthiring interrogations took place at the instigation of supervisors , though at the local "hangout" rather than at the workplace itself, were equally restraining and coercive, and violative of the Act. The continued use of a local hangout , rather than a management office, can give that informal location the imprimatur of official function , and management should not be permitted to evade the consequences of interroga- tion merely by changing its location without changing its clear message. D. Surveillance The issue of surveillance in this matter is one of intru- sive demands by Respondent that employees' report at- tempted contracts by Teamsters Local 710. Drivers Bergstresser and Rathunde, while still employed by Brown, testified that they were told by Saillez and by Gonyou respectively to phone in or otherwise bring it to Brown's attention if they were spoken to, followed, har- rassed, bothered, or stopped by Local 710 representa- tives, and Terminal Manager Gonyou made a general an- nouncement of such requirement in the driver's lounge. Brown argues that such requests were lawful , based on the fact that these were bonded drivers and driving trucks containing freight for which Brown was responsi- ble. There is, however, no evidence other than a lunch- time meeting with two drivers that representatives of Local 710 ever contacted, much less interfered with, Brown's drivers. Rather, it was obvious at the hearing that Brown's attitude toward Local 710 was virtually paranoid, including protectively "circling the wagons" at the local terminal in the fear that a radiator puncture caused by a pebble being thrown up from the roadway was actually a pistol shot seriously endangering Brown's equipment. Brown also always made a clear distinction between its own "non-union" shop where employees were represented by Drivers Mutual , and a shop where employees were represented by a "union," defined as any labor organization other than Drivers Mutual. While an employer may lawfully request employees to report to management what they perceive to be threats by union organizers or others similar requests to report harassment or other pressures constitutes an unlawful at- tempt to discourage permissible union activity." When those requests are extended to mere attempts to con- verse, and particularly in view of the other actions by Brown to maintain what it considered a nonunion atmos- phere in which employees were represented by Respond- 9 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). 10 Quality Drywall Co, 245 NLRB 617 (1981) II Arya Engineering Corp, 256 NLRB 1083, 1093 (1981) ent Drivers Mutual , they clearly constituted a violation of Section 8(a)(1) of the Act. E. Interference with Board Process The evidence relative to the alleged interference with Board process results in a direct crediblity conflict be- tween the testimony of Tallaksen and of Phillips . Neither of these witnesses have been shown to have or been credited as having complete credibility, which however does not prove, ipso facto, that all of their respective tes- timony should be disregarded. Phillips' testimony on this point was given while he was still employed by Brown , but at a time by which he must have recognized his other testimony might result in retribution. It appears particularly improbable that Tal- laksen, or anyone at Brown, would attempt to interfere only with Board process calling testimony by Phillips alone, either prior to or during this lengthy proceeding. Other witnesses, known to Brown, could have and did give testimony more damaging than that of Phillips, and even though they may have been considered by Brown to be more principled or less willing to accept unlawful suggestions than Phillips, no attempt by or on behalf of Brown apparently was made to interfere with their testi- mony. While Phillips' testimony on other points, supported by or supporting situations testified to by other wit- nesses, can be granted preferential credibility, I must conclude, based on my observation of the witnesses and the improbability of the testimony, that there was no at- tempt by Brown to interfere with the service of process on Phillips. F. Witzel's Discharge General Counsel, bearing the burden of proof, has shown that Witzel enjoyed an employment record free of any objective blemish, and in fact enhanced by having been granted a pay increase when two-thirds through his probationary period. Witzel, however, had had the infa- mous "hot-dog stand" lunch at which the Local 710 rep- resentative had approached and spoken with him. I credit Witzel's testimony that Gonyou was made aware by fellow driver Laxner of this contact, particularly in view of Brown's specific "request" that drivers notify management should any attempt be made by Local 710 representatives to speak to them. The only ground stated for the discharge was that Saillez had complained to Gonyou of Witzel's "abusive language" and challenging of authority . This was the tes- timony of Gonyou, not of Saillez, and there were no ex- amples cited of such language or challenge, or of any employee being disciplined in any manner for such an of- fense throughout the entire Brown system. Given the to- tality of Brown's union animus it is obvious that Brown's discharge of Witzel was to immunize itself against possi- ble unionization at Chicago, and was in violation of Sec- tions 8(a)(1) and (3) of the Act. G. Phillips' Discharge General Counsel has here proven that Phillips was dis- charged only after having changed his behavior from BROWN TRANSPORT CORP. 565 having avoided testifying against Brown to cooperating with General Counsel in providing testimony. The infor- mation assembled by Brown's counsel to discredit Phil- lips' adverse testimony was allegedly the basis for his dis- charge. However, "dishonesty" or "lying" are not grounds uti- lized by Brown for discharge except as applied to freight, not the case here. "Insurance" and "bonding" companies were not contacted , and it is not at all shown that they would have raised objection to the false state- ments on the application. The "on-the-job injury," traffic tickets, and "damage" are subject to interpretation. The issue of what constitutes a "conviction" has been brought to the Supreme Court several times, and a lay- man's interpretation might reasonably contradict that of counsel for Respondent . It is also highly indicative that only three Brown employees , throughout their entire system, had been terminated for making false statements on the job application, prior to Phillips' discharge, that two of the three had other serious grounds for termina- tion and the last was still in his probationary period. It is clear that each and all of the grounds posited by Brown for Phillips' discharge were pretextual , and that the discharge was in violation of Section 8(a)(3) and (1) of the Act. (c) Brown and Drivers Mutual by coercively soliciting employees to join Drivers Mutual. 4. Respondent Brown has violated Section 8(a)(1) of the Act as follows: (a) By interrogating employees regarding union mem- bership, activities, and sympathies. (b) By threatening not to employ , to terminate em- ployment, and not to continue employment at the loca- tion if job applicants or employees did not support Re- spondent Drivers Mutual or supported a labor organiza- tion other than Respondent Drivers Mutual. (c) By inducing employees to engage in surveillance and creating the impression of surveillance. 5. Respondent Brown has violated Section 8(a)(1), (3), and (4) of the Act, by discriminatorily discharging em- ployees Witzell and Phillips, and discriminatorily failing to recall employee Ronald. 6. The aforementioned unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as specifically found herein , Respondents en- gaged in no other unlawful conduct. THE REMEDY H. Failure to Recall Ronald The testimony reveals that Ronald was effectively denied the opportunity to work as a casual employee, and to become a permanent employee at the next vacan- cy as promised, and that this was done immediately fol- lowing his making a public comment constituting an in- citement of fellow workers to unionize. Tallaksen, though not a supervisor, is an employee having more fre- quent and intimate contact with management, and he told other employees that Ronald was not recalled be- cause those comments had "gotten back to the front office." General Counsel has satisfied his burden of proof. The reasons put forth by Brown for not having recalled Ronald are shown to be patently specious , pretext put forth to hide the truth . Brown obviously discontinued Ronald's employment because of his prounion remarks, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent Brown is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Drivers Mutual is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents Brown and Drivers Mutual have vio- lated Sections 8(a)(1) and (2) and 8(b)(1)(A) of the Act respectively as follows: (a) Brown by giving, and Drivers Mutual by accepting recognition when both Respondents knew that Drivers Mutual did not represent an uncoerced majority of em- ployees. (b) Brown by giving, and Drivers Mutual by accepting recognition prematurely at a new facility where there was no accretion. Having found that Respondents engaged in certain unfair labor practices, I will recommend that they be or- dered to cease and desist therefrom and to take other ac- tions designed to effectuate the purposes and policies of the Act. Having found that Respondents Brown and Drivers Mutual unlawfully respectively granted and accepted recognition as bargaining representative of an uncoerced majority of employees at the local terminal at Chicago, Illinois, I will further recommend taht Respondent Brown be required as to the employees at its terminal at Chicago, Illinois, to withhold recognition from Respond- ent Drivers Mutual, and to cease giving effect to any collective-bargaining agreement between the parties as to said terminal until such time as said Respondent Drivers Mutual shall have been certified by the Board as the ex- clusive bargaining representative of the employees in question . I shall further recommend that Respondent Drivers Mutual cease and desist from acting as the col- lective-bargaining representative of Respondent Brown's employees at the terminal at Chicago , Illinois. However, nothing in this Order shall authorize or require the with- drawal or elimination of any wage increase, or other benefits, terms, or conditions of employment which may have been established pursuant to the performance of that agreement . I shall further recommend that both Re- spondents jointly and severally reimburse all present and former Brown employees at the terminal at Chicago, Illi- nois for all initiation fees, dues, or other moneys exacted from them by or on behalf of Respondent Drivers Mutual pursuant to any dues-checkoff provision of any collective-bargaining contract, or otherwise, together with interest thereon computed in accordance with F. W. 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987).12 I shall further recommend that Respondent Brown be ordered to offer George Witzel , James Phillips, and Robert Ronald immedaite and full reinstatement or recall to their former jobs or, if such jobs no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earning they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned from the date of their discharge, or failure to recall , to the date of a bona fide offer of reinstatement, less net interim earnings during IS In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be 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 on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). such period. Backpay shall be computed on a quarterly basis as prescribed above. Moreover, consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent be required to expunge from its records any references to the unlaw- ful discharge and failure to recall of these employees, and provide written notice to them of such action, and inform them that Respondent's unlawful conduct will not be used as a basis for future disciplinary action against them. Counsel for General Counsel has also requested a visi- tatorial clause authorizing the Board to engage in discov- ery under the Federal Rules of Civil Procedure. The Board has been extremely disinclined to grant such relief. Though there is an extended history of Respondent Brown's union animus over the last 15 years I will not recommend a change in Board policy, secure in the knowledge that appeal will be made to the Board on other issues as well. [Recommended Order omitted from publication.]