Century Moving & Storage

CENILRY MOV()\ING & SRA61F(i h71 Century Moving & Storage, Inc. and Truck I)rivers, Oil Drivers, Filling Station & Platform Work- ers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 13-CA- 18689 August 27, 1980 DECISION AND ORDER By CHAIRMAN FANNING ANI) MlMRIERS PI.NI.II.O ANI) TRUFSDA :I. On April 30, 1980, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The General Coun- sel filed cross-exceptions and a brief in support of the cross-exceptions, in support of the Administra- tive Law Judge's Decision, and in opposition to Respondent's exceptions. The Charging Party, herein called the Union, filed cross-exceptions adopting the cross-exceptions and brief of the Gen- eral Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. Contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(l) of the Act by promising to grant employees a wage in- crease in order to discourage their union activities. On April 28, 1979,2 Respondent's president, Fleming, met with a group of employees to discuss the Union. During the ensuing discussion, the em- TI he Respondent has excepted to certain credibility finding, made h, the Administrative Law Judge It is the Board', established policy not to overrule an administrative law judge's resolutionsr with respect to credi- biht unless the clear preponlderance of all of the relerant evidence con- sinces us that the resolutions are incorrect Standard Dry uall Products Inc. 91 NLRB 544 (1950), enfd 188 F 2d 362 (d Cir 19l5) We hase carefully examined the record and find no basis for reversing his findings We find it unnecessary to determine whether Noirbert Kluga or James Dwyer should he included i the bargaining unit, as their illusitll > ould not affect the Union' majority status The Administrative law Judge inadvertently stated. in fn 6 of his D[e- cision. that par. V'III(l) of the complaint was %sithdra'ln In act. par VIII(6) of the complaitnt was withdrawn in the (iGeneral Counsell', brief to the Administrative l.aw Judge. but par VIl(l) A as not hc Admnini,lra- live Las Judge also inadertcnl stated in his )cision,. "There is spe- cific evidence that the state of business declined on May I and remained depressed for 2 eeks s i as to necessitalt the redulctltl n llssig llIIllCII to Cork and RKan from the prex ius aserage if 15 4 hours per x'ck Ito l mere 7 or 14 hours per sseek It is cxliltelt front the sirrounding text that the sentence should read its coiltetdeCl h) Ihe (ireril Liilse.l " hele is I i specilfic es i)ell ce ' All dates hereinafler are In 1 7it unless itther\ile indlilted 251 NLRB No. 83 ployees offered to forgo union represenlltation in return for a $1-per-hour raise or more overtime compensation. Fleming rejected both alternatives. but reminded the employees that in March he had promised them an unspecified raise to be effective in the summer. He then tentatively offered to give them a 25-cent-per-hour raise in June. The Administrative Law Judge found that Flem- ing, upon discovery of his employees' union activi- ty. merely reminded them of his prior commitment to grant a June wage increase. He concluded that the raise was promised before the advent of the or- ganizing campaign, and that Fleming merely law- fully reiterated his prior commitment. We disagree. Prior to the organizing campaign, Fleming had promised to consider granting a raise in the summer without specifying the amount of the raise or when it would be granted. However, on April 28, in direct response to the threat of unionization, he formalized his earlier vague promise by stalting that he would give a 25-cent-per-hour raise to all employees in June. The inescapable conclusion was that he would grant the raise to avoid unionization. This is especially clear since Fleming emphasized during the discussion that he could not afford a union and would have to lay people off if the Union were voted in. Furthermore, the Board has held that the grant of a wage increase may violate the Act even where the employer had promised to grant a wage in- crease prior to the advent of union activity if it is done in such a way as to convey to employees that the wage increase is either a reward for rejecting a union or an inducement to do so. Hamilton AVlnel Electronics, 240 NLRB 781 (1979). That is clearly the situation in the instant case. The employees signed authorization cards on the morning of April 27. Later in the day, Fleming learned of their union activity. On April 28, he met with the employees and, for the first time, prom- ised them a specific raise at a specific time. It is ap- parent that the promise was a direct response to the employees' union activity. Thus, we conclude that Respondent violated Section 8(a)(1) of the Act by promising benefits to employees in order to dis- courage their organizational activity. : : Ihis additionl ilalion. hich affected all unit emnplosiees, proxlidc frrlhtr supporl for our Gfilding. in agreement ith the dtnllnltriltix t La.s Judge and for the reasnits stated by him, that a bargaininig order s uarranlted as part of the rcmned for the unfair labor practiceh i mlaitted hi the Responideil in response t the emplo sees' lrniol ilcttlitlets Re- sponldent's bargalining obligationl shall commence as of NijMa I. I '7, Ihe date itn `*hlch the Ulnuio demanded recognlititlln ad RKsp(Iondent refLsed thLt demrnlll See Ir[ diltg Port Inc . 219 N[ RHB 209) I'. 1d I)iltd Pai-, c (oepaetrel. ii, . 228 NI.RH 1(8 (1q77) Ntl reo cr, iI ia, if the egigiglus aid pLeIirk ' IILittlrt it te litl'ir lb it IttI -s enigagedl im h R spidtilelt, x,.c fitind t li i broad reralt tI ( iJttlll i'd C E N T U R Y M O V I N G & S T O R A G E & I~ ~ ~ ~ o,72 I)lC;ISI()NS (): NAI'I()NAL LAHO()R RAIO'()NS BO()ARD) ORDER Pursuant to Section 10(c) of the National Labor Relations Act. as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Century Moving & Storage, Inc., Addison, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(c) and re- letter the remaining paragraphs accordingly: "(c) Promising benefits to employees in order to discourage their union activities." 2. Substitute the following for paragraph l(e): "(e) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. order is appropriate fhIAmorr oodA. Int. 242 NLRB 1357 (19)7)t1 Ihere- fore, we shall modify the Adminilratie I;lAw Judge's recommenlded ()rder and notice accordiingly APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF IHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT coercively interrogate em- ployees about their union activities and desires. WE WIl. NOT lay off or otherwise discrimi- nate against employees because of the union activities of some or all of our employees. WE Wll.l. NOT promise employees benefits in order to discourage their union activities. WI Wil. NOtI refuse to bargain collectively with Truck Drivers, Oil Drivers, Filling Sta- tion & Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining repre- sentative of the employees in the unit found appropriate by the Board. The appropriate unit is: All full-time and regular part-time warehou- semen, local movers, and helpers employed by us at our facility located at 1022 National Avenue, Addison, Illinois, but excluding over-the-road drivers, all other employees, guards and supervisors as defined in the Act. WE WI.l. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WIL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit concerning wages, hours, and other conditions of employment, and, if any understanding is reached, embody such understanding in a signed agreement. WE WII.l. make Michael Ryan and the estate of William Cork whole for any losses Michael Ryan and William Cork may have suffered as a result of our discrimination against them, plus interest. CENTURY MOVING & SORAGE, INC. DECISION STATEMENT OF IHE CASE THOMAS R. WI KS, Administrative Law Judge: Pursu- ant to unfair labor practice charges filed by Truck Driv- ers, Oil Drivers, Filling Station & Platform Workers Union, Local 705, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and a complaint issued by the Regional Director of Region 13 and an answer filed by Century Moving & Storge, Inc. (herein called the Respondent), a hearing was held in Chicago, Illinois, on January 7 and 8, 1980. The issues litigated were whether the Respondent en- gaged in certain conduct violative of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amend- ed. Subsequent to the hearing, the General Counsel and the Respondent filed briefs. Cl:NTURY MO(VIN(; & STORAOF(; 67I Upon the entire record in this case including my ob- servation of the witnesses' demeanor and in consideration of the briefs, I make the following:' FINI)ING;S oF FACI I. ITH BUSINESS O: il H. RI-SPONI)IN The Respondent. an Illinois corporation, at all times material herein has maintained a place of business at Ad- dison, Illinois. where it is engaged in the transfer and storage of new and used household goods. During the calendar year preceding the issuance of the complaint, a representative period of time, the Respondent in the course and conduct of its business operations derived gross revenues in excess of $50,000 for the transportation of goods from the State of Illinois directly to points out- side the State of Illinois. The Respondent admits, and I find, that it is and has at all material times been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE ABOR ORGANIZATION The Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THI. UNFAIR LABOR PRACTICES A. Background The Respondent operates under a franchise with a na- tionwide interstate mover. The Respondent's sole owner, chief executive officer, and president is Robert Fleming. Its office manager is Mark Reddeman, an admitted agent of the Respondent. The Respondent is a relatively' new and growing enterprise. Fleming spent all of his time driving trucks when the operation commenced in 1976. Gradually he assumed more administrative duties. In Jan- uary 1979. the Respondent executed a lease for a new warehouse with an expected occupancy date of March 1. (All dates herein are 1979 unless otherwise stated.) Be- cause of peculiarly bad winter storm conditions the oc- cupancy date was postponed until April. Fleming became engrossed with the move into the new ware- house which expanded by threefold the Respondent's warehouse capacity. From September 1978 until early 1979, Fleming spent about half his time driving trucks. Eighty to 90 percent of the Respondent's business is related to the interstate movement of goods. Eighty per- cent of that business is related to "military work." Only 10 to 20 percent of the Respondent's business involves local pickup and delivery; i.e.. the pickup and delivery of the same goods within the greater Chicago area. The Re- spondent utilizes the services of approximately 14 per- sons including full-time and part-time truckdrivers, help- ers, and an estimator. In March, Fleming engaged in a group discussion with the drivers and helpers. The employees sought a wage increase and also discussed the possibility of obtaining certain insurance policy coverage to which the Respond- I h ( 't'rial Coullscl ' Un pocd IitiOl Io rorrcct hi. t.ITlr'lIpl, dtalcd Ma.rch 11. t Y5O. i, hrchs ranlted ent would contribute one half of the cost. There is some dispute as to whether Fleming at that time granted a ,,age increase. It is clear that the employees did not get the amount that they sought. Fleming testified that he promised the employees that he would grant a further raise during the following summer months. Fleming swas not contradicted. Employee Mike Ryan the only emploS- cc witness called to testify by the General Counsel could not testify with certainty whether a summer raise had or had not been promised. and he concluded that such a promise may have been made. 2 I credit Fleming's more certain testimony that such promise had been made. No insurance coverage was granted at that time. B. The Union .4-ctilYv On or before April 27., Union Representative Gerald Rzewnicki received an anonymous telephone call con- cerning possible representation of employees at the Re- spondent's warehouse. Accordingly he and fellow repre- sentative, Bill Dix, visited the Respondent's warehouse on Friday. April 27, at or about 7:45 a.m. The union rep- resentatives met with employee drivers and helpers, James Macak, Joseph Prinske, Harry Mazza. Michael Ryan and William Cork, outside the rear of the warc- house at a spontaneously arranged meeting. Employee Edward Adkins declined a fellow employee's invitation to participate. Very little was discussed beyond a brief description of benefits that the Union had obtained for other emploees at other movers. A meeting to further explore union rep- resentation was mutually agreed upon to be held at a nearby restaurant at 7 a.m., Monday. Ryan testified that the employees usually report to the warehouse at 8 al.m but that the starting time in fact had previously fluctuat- ed according to the jobs to be handled for that particular day. Usually assignments were made orally and emploN - ees had been advised the da, before whether to report earlier or later than 8 a.m. Fleming arrived at the warehouse on April 27 while the employees met with the union agents. He was ap- proached by Adkins and informed that the union agents were talking to employees Ryan Mazza, Macak. Prinske, and Cork behind the warehouse. On Saturday, a workday, April 28. Fleming engaged in a conversation with the aforementioned employees except for Mazza who was absent. Fleming's testimon\ at the hearing is at variance at some points with that of his pretrial investigatory affidavit. The affidavit was re- ceived into evidence for purposes of credibility resolu- tion. The General Counsel argues that Fleming's affida- vit testimony be credited Iwhere it conflicts with that of his hearing testimony and that it be accorded weight as substantive evidence particularly with respect to the issue of alleged interrogation. The General Counsel cites .41vin J. Burt nd Co.. Inc., 236 NLRB 242 (1978), en- forcement dtenicd on other grounds 598 F.2d 1267 (d Cir. 1979). 2 ,1;l,,, Cork. Ill all.CgId (I rillltllct. 11ed silhb qiltilnt ho th' ll',C- l l{1ll -t) th, uIllg. .111( pl lr t, ,lt hi'aline CENTURY MOVIN~~~i & STORAGE 673~ h74 I)tlSl(,()NS ()OF NAI I NA LAI()R RA I IONS It()ARI) Flieming's testimonial account at the hearing is more in accord with that of employee Ryan, than thait of his af'fi- davit Kwith respect to several important areas, e.g.. FIcim- ing met with P'rinske and NMacak before he met with the other entployees on that mornilig: the employees thereaf- ler discussed a pay raise: there ,was discussion as to s hat the Respondent could "afford''"; and there was reference to mnilitary work. hus the conversat ion was more cx- pansivec than thallt described ill the affidavit ilnd there were in fact to coliversations, not one as is indicated ill the affidavit. I conclude that Fleming's testimony at the hearing is, as he testified, more accurate than that of tile pretrial affidavit. Accordingly I d(lo not accept the affida- vit accounilt of tile April 28 encounter. in ioto, as suhstan- liye evidece. ()n April 28, according to both Ryan and Fleming, employees 'ririske and Macak met with Fleming in the office area of the warehouse at the commencement of the morning shift. The "office" is in reality a reception area and a general meeting place to which employees report in tile mornillg to receive their truck or ware- house assigniments. It is also a lunch and break area. Fleming testified that hie first engaged in a conversation with Macak and Prinske. His account was not contra- dicted by Macik and Prinske who did not testify al- though they appeared in the courtroom pursuant to a subpena served on hem by the General Counsel. Flem- ing testified that they conifronted him in the office and told him that they had met with union representatives at 7 a.m. on Monday, May 30, at which time and place the Union would explain its "hbenefits" to them. Fleming told them that because of business demands work would com- mence at 7 am. on Monday. Macak and Prinske told Fleming that their only objective was to obtain a wage increase. Fleming responded that he could not afford a further raise. They then stated that they would not go to another union meeting if they received a raise. Fleming again said he could not afford it. Ryan could not recall how the topic of the Union was raised with the other employees. However Fleming testi- fied that he summoned the other employees to the office after talking to Prinske and Macak. At that point they were joined by employees Cork, Ryan, Adkins, and Hartle. Flenting testified that he told them that he and Macak and Priske had been discussing the "Union" aind the raises. Ryan testified that Fleming told them that he knew of their plans to "join" the Union. Fleming was ex- Iremely evasive arid hesitant as to what his specific refer- ence had been to the employees' union activity. He repu- diated his pretrial affidavit with respect to the statement that he told the employees that he had been aware of the union agents' earlier visit, and that he had asked the em- ployees "what he wanted, why he was here.":' However. Fleming testified at the hearing that his affidavit "prob- ably was more or less a inference rather than a direct quote." But when asked what he said to the employees he testified: :' Ill .l i iil;it il l lilg l'stificd t l11 Iht. tc' lllp ct CC IlCerci aIcknlo\J - tdgCd Olal i 111n1 ll ilgell had x itcd tlt \XilclolSc hbut Itic expressed ailt uIl t llillgllt' (, t(1 *'liiL'I, II It was brought ut in the meeting-or I kne in Macak's aid Prinske's conversation, this had been brought out, that there was a union main out there !esterlda, aind also that I knew there \i as going to he a meetinig oni Morida at 7 o'clock. I lsc\hcrec Fleming testified that although he did not believe that he asked the employees the reason for the union agent's presetnce he may have asked them "what's up" w\hen the other employees entered the room, coup- led with his statement to them that Macak arid Prinske had told him of the union agent's visit. He further con- ceded that he may also have asked them how the Union "found" him. I credit Fleming's account of his conversation with l'rinske and Macak. I conclude that he told the other employees that he had been aware of the union agent's visit and I credit Fleming that he had explained to them that his knowledge had come from Prinske and Macak. I further conclude that he then placed his employees in the posture of being constrained to explain their position vrs-a-vis union representation by telling them that he had discussed unions and raises with Prinske and Macak and by asking them "what was up." According to Ryan whon I credit as a more assured and consistent witness on this point, Flemriirig asserted that before they could re- sponid that he could not afford to have his employees "join" the Union. ()biously some explanatory response was called for from those employees. Accordingly the employees responded that they were interested primarily in obtaining a raise. As to the following segment of the conversation, I find Fleming to be more detailed, certain, and convincing. I conclude that Fleming thereafter re- sponded that he could not afford a raise. The employees suggested that he raise his customers' rates. He respond- ed that it was not so easy to raise rates, that his work was primarily "military' antid that by raising rates he would place himself at a competitive disadvantage. He reminded them that he had promised a unspecified raise in March to be effective in the summer. I credit Ryan's testimnolny as to what was stated next. At that point the employees offered to compronlise, i.e., they offered to accept a SI raise or "overtine" compen- sation, but Fleming rejected either alternative arid in return tentatively offered a 25-cent-per-hour raise effec- five in June. Fleming stated that he was also considering institution of insurance coverage. However he told them that if they did choose to be represented by the Union that he. Fleming, and Reddeman would have to join the Union and that the increased costs of paying union bene- fits would cause him and Reddeman to assume more truckdriving duties which in turn would cause the "phas- ing out"; i.e., layoff of the lower seniority employees. Ryan conceded in his testimony that at that meeting or shortly thereafter the employees became aware that the Respondent would commence work on Monday at 7 a.m. It is Fleming's testimony that the press of work made it necessary to start the shift at 7 Monday morning. lie testified that the April 30 and May I dates conistitut- ed two of the busiest days of the season because the expi- ration datles of most of that area's leases fell thereon. CF-NIURY MVINO & STORAKI(;& 675 I'here is some confusion hbclieen Ryan and Flemning as to hcl l alnd to whonl he spoke with respect to thile con- nfict het.eenl the 7 a.ml. Monda- starting time aiind the union meeting. According to Fleming he spoke to Macak and Priuiske during the initial collsersation on April 28 and told themi the press of business required their pres- ence o i Monlday at 7 a.m., hut that they indicated that they did not knos how long the meeting would last, and made no comment as to the apparent conflict. Fleming told them "do what you have to do, but I've got to get the jobs done." According to Fleming's uncontradicted testimony he asked Macak, as Macak was the last to leave the warehouse at the end of workday on April 28, whether Macak was planning on reporting for work on the following Monday. At that point Macak asked to absent himself in order to speak to the other employees who were outside the warehouse. Macak left and re- turned and told Fleming, "Well I guess I should hear what the Union has to say." Ryan testified that the sub- ject of the conflict also arose at the end of the meeting of all employees on the morning of April 28. At that time the employees told Fleming that they had a union meeting set for 7 a.m on Monday and Fleming told them that he had work to perform and he was going to get it done. The employees responded, "Well we have this meeting Bob. what should we do about it?" Fleming responded, "Well you told them you were going to be there, go ahead and go but I have jobs to do and I am going to get them done." As the testimony of Ryan and Fleming is not mutually contradictory and inasmuch as neither explicitly denied the version of the other on this point, I credit them both There is no evidence that any effort was made by the employees to change the time of the union meeting. Furthermore Fleming did not advise the employees that they would be precluded from work- ing if they were tardy on Monday. In the past no em- ployee had ever been reprimanded or punished for tardi- ness and no formal disciplinary system had existed. C. The .lleged May I Lockout On Monday morning, April 30, at 7 a.m., Macak, Prinske, Cork, Ryan, and Mazza met with Union Agents Rzewnicki and Dix at the nearby restaurant, and execut- ed valid union authorization cards whereby they desig- nated the Union as their bargaining agent. The meeting ended at or about 7:30 a.m. Within a few minutes the employees arrived at the warehouse to find the doors locked and the lights out and no one present. Fleming testified that, on April 30, he arrived at the warehouse at 6:30 a.m. and assigned a truck to himself. Also that morning Office Manager Reddeman and Esti- mator Tom Hagel, who had rarely engaged in moving work, engaged in moving work. Adkins performed his driving duties on April 30. Rick Landers also drove a truck on April 30. Landers is employed during the day by a railroad and performs driving duties during vaca- tion periods and at other more limited occasions during the workweek. Fleming did not testify whether, because of the press of business, he, Hagel. and Reddeman would have been pressed to moving duties had the other employees ap- peared at 7 a.m. On April 30, after 7:30 a.m., no one was left at the warehouse to pcrfor any work there. All had departed by 7:30 a.m. and returned about 5 or 6 in the cveninlg. Fleming conceded that his past treatment of employees who were as much as I hour tardy was incon- sistent; i.e., some times they would not receive any xwork and at other times theN xkere assigned to "w.arehouse'' duties. No explanation was rendered for the differing treatmetlt. On April 30., Fleming consulted ith an attorney \,ho advised him to operate on a seniority system in assigning available work. He testified that in the past he has as- signed work in accordance with seniority although he conceded that he never maintained a ritten seniority roster. In any event on April 30 the unwritten seniority roster that he maintained for the assignment of available moving work was as followas: (1) himself, (2) Reddeman. (3) Macak, (4) Hagel, (5) Landers, () Prinske, (7) Dennis Hartle, a driver who was employed full-time by a com- petitor mover but also had been utilized for driving duties during his vacations from the competitor and on Saturdays, (8) Norbert Kluga, a full-time college student who normally works I or 2 days in the warehouse, (9) James Dwyer, a college student attending college 200 miles away and who worked when school was not in session, on vacations, and on midterm breaks, (10) Adkins, (II1) Cork, (12) Ryan, and (13) Mazza. Fleming also utilized the services of three drivers who normally were assigned to long haul routes. However Fleming did not mention them when he described the se- niority roster. On Monday evening, April 30, Fleming telephoned Macak and Prilske and told them to report for work the next day, Mal I D. Flhe May I Recognition Demand and Emnployee Layoff On Monday, May I, Fleming arrived at the warehouse between 7 and 7:30 a.m. While he was alone he was vis- ited by the two union agents who introduced themselves. Rzewnicki presented Fleming with the five authorization cards obtained on April 30 and claimed that the Re- spondent's employees had designated the Union as their collective-bargaining agent. 4 Fleming quickly inspected the cards. Rzewnicki presented Fleming with two copies of a collective-bargaining agreement that the Union had negotiated with the "Movers Association of Greater Chi- cago" and to which other individual movers had become signatory. Fleming responded that the employees who had signed authorization cards did not constitute a ma- jority of his employees and that he desired to consult an attorney. At that point employees Macak, Prinske, Ryan, and Cork joined Fleming and the union agents. Mazza did not appear on that date and subsequently made no appearance at the Respondent's warehouse. Fleming stated to the employees that there was no work for Ryan and Cork. One of the union agents asked if Ryan and Cork were being punished for union activities Fleming denied that they 'vere but asserted that he and Redde- man had priority over them in seniority and that they i At h 11 In Rct.ick, as tIl.L rc lat ,It . ,tth r pron-, ,tare illl h/i'd he lthe R-nldtenlt ., ill, tr ,.1 0t.LAIl CNURY MOVIN(, & stoR..x(;f 675 676 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD would engage in moving work on that date. Fleming told them that he regularly worked on trucks. Cork ac- cused Fleming of lying. Rzewnicki intervened and told Cork to be silent and suggested that they all leave. Meanwhile Macak and Prinske were assigned to a moving job. The union agents and Cork and Ryan de- parted. The Union has not been contacted since that date. 5 On May 1, Fleming had assigned himself to drive a truck, with Macak and Prinske assigned as helpers. Hagel and Reddeman were assigned to warehouse duties and performed work that in the past had been performed by Ryan and Cork. Landers apparently was assigned to some work the nature of which could not be recalled by Fleming. Hartle had been employed on his other job and did not work that day. Dwyer according to Fleming was not available. Kluga did not work as Fleming testified that he was not needed. Adkins was assigned work de- spite Kluga's greater seniority because, according to Fleming, he, like Macak and Prinske, was promised a 40- hour workweek. According to Fleming, the other em- ployees were assigned work if work was available. It is Fleming's uncontradicted testimony that during April he worked on trucks 50 percent of the time. Flem- ing testified that the work which was related to the final- ization of the warehouse move and which had kept him off the road had come to an end in April. No specific date for this finalization was given in his testimony nor was his testimony particularized with respect to the amount of work and type of work available to him or to the Respondent as a whole on May I. Prior to May 1 Ryan was utilized as a helper. Cork was described by Fleming as a driver and a helper. On May 4, Ryan and Cork next appeared at the ware- house to receive their paychecks. Reddeman told them that they would be called to work "if' they were needed. Cork received no work assignment until May 10, and Ryan received no regular assignment until May 17. Ryan did work I or 2 days during the hiatus. Between May I and May 17, the same persons who worked on May 1 continued to engage in moving work thereafter. The Respondent's records with respect to timecards and other documents are chaotic, incomplete, and con- fusing. The parties stipulated that the following persons averaged between 30-90 hours a week during their em- ployment: Adkins, Macak, Prinske, Cork, and Ryan. The parties also stipulated that Leiterman, Lee, and Gilmer were engaged as over-the-road drivers on a full-time basis. As to Mazza it was stipulated that he worked the following weekly pay periods: Week ending February 16-49.5 hours: February 23-17 hours; March 2-28.75 hours; March 9- 28.5 hours; March 16-30.75 hours; March 23-15 hours; March 30-39.75 hours; April 6-13 hours; April 13-23.25 hours; April 20-21.25 hours; and April 27-19 hours. O()n January 2, 1980. the Rc'pondenlt filed a replre llenai llo plitiol in Case 13-RM-1296 hased upon the tUnion's May I demand for recogni- rio.t E. Conclusionv as to 8(u)() Allegations It is alleged and argued by the General Counsel that the Respondent by the conduct of Fleming at the April 28 meeting violated the Act by coercive interrogation, creating the impression of surveillance, threatening loss of work and discharge, and promising increased benefits and improved working conditions. 6 I do not conclude that Fleming created the impression of surveillance of employees' union activities on April 28. There was no actual surveillance by Fleming of the brief encounter between the union agent and the employ- ees which was openly held immediately outside the rear of the warehouse. The area was so open and susceptible of observation that Business Agent Rzewnicki testified that some employees expressed concern and it was agreed that another more private meeting be held else- where at another time. Furthermore, the employees dis- cussed immediately thereafter their mutual suspicion that Adkins would disclose the meeting to Fleming. Addi- tionally, Prinske and Macak thereafter volunteered the information to Fleming on the morning of April 28. Thus, when the other employees joined Macak and Prinske, and when Fleming told them of his knowledge of their encounter with the business agent and the basis of his knowledge, it would have been unlikely and unrea- sonable for them to have assumed that Fleming acquired his knowledge by the means of surveillance. 1, therefore, conclude that the allegation concerning the creation of an impression of surveillance is without merit. The Respondent argues that Fleming's interrogation was not coercive if evaluated by criteria set forth in ap- pellate court decisions in the Second Circuit.7 That crite- ria consists of (1) the background of employer hostility, if any, (2) nature of information sought, (3) identity of the questioner, i.e., his rank in the managerial/supervi- sory hierarchy, (4) place and method of interrogation, i.e., at the situs of supervisory authority or in a formal atmosphere, and (5) the truthfulness of the reply. To these criteria the Fifth Circuit Court has also added the following: (6) the existence of a valid purpose of the questioning, (7) whether that valid purpose was commu- nicated to employees, and (8) whether assurances against reprisals were given.' Furthermore the Fifth Circuit Court and the Board have held that even if all such cri- teria favor the Respondent it may still be found that co- ercion has occurred.9 The facts of this case do not demonstrate that all fac- tors favor the Respondent. Although the situs was not a confidential or private office and the employees respon- sively set forth their motivations for seeking union repre- sentation, i.e., a wage increase or overtime compensation, the meeting was not a mere informal discussion in which 't Par VII( )ll of the comnplaint alleging other 8(a)( I)cl onduct was suh- ,equently withdrawn. l onnie Bournel. a Individual d/hi /a Brmlrt ( . .R L . 322 F 2d 47, 48 (2d Cir 1964); :V.L.R.B. i (i;ncrul 5tetc. Inc 438 F2d 894 (2d l(ir 1971); I..R B v M 1. I rTn (ot np11y 1vi .I 441 F 2d 839 (2d Cir 1971) . R1. B. (alel. I . 340 t1 2d X(113. 804 (5th Cir 1965), cerl. denied 382 US 92 !1 N.1. R.B ', (C'nmco, iprua Paeo,. a Dil,,otr oi Ir/ ehal ] Corporatlot. 247 N I.RB No Ihh (1I98()) CI-INILIR MVING & SIORAGFit t77 the employees freely set forth their positions. At the point in time when Cork. Ryan. Adkiis, and liartle were summoned to the office, the nature of the meeting changed. Unlike Prinske and Macak those employees did not freely choose to discuss their union support and mo- tivations with Fleming. They did not authorize Macak and Prinske to initiate a meeting on their behalf. The en- counter was initiated by Fleming. They were given no option of not responding nor any assurances against re- prisals. Fleming placed the other employees in the posi- tion of having to explain their position as to whether and why they supported the Union, after he had expressed his antipathy toward union representation of employees. i.e., he could not afford a union. At that point there was no valid reason for Fleming to question employees as to their support of, and motivation for supporting, the Union. No demand for recognition had as yet been made. No assertion of majority status had been made by the Union. Fleming's conduct revealed the purpose of the interrogation, i.e., to dissuade the employees from choosing union representation before they were exposed to further union proselytization. I conclude that in such a context Fleming's interrogation tended to interfere with the employee right to freely, and without restraint, delib- erate and decide upon union representation to an extent that it constituted coercive conduct violative of Section 8(a)( 1) of the Act. With the respect to the promise of a wage increase and a promise to consider employee insurance coverage, Fleming testified that he had discussed possible insurance coverage and a promise of a raise effective in the summer at a March meeting with the employees and that he reminded them of a promised raise at the April 28 meeting. I credit Fleming's more positive testimony as to the March meeting. I therefore conclude that Fleming upon discovery of his employees' union sympathies at- tempted to dissuade them from joining the Union by re- minding them of his prior commitment to grant a June wage increase and prior promise to consider employee insurance coverage, but that he did not unlawfully prom- ise a wage increase or other benefits or implied improved working conditions in consequence of their organization- al activities. Accordingly, I do not conclude that he thereby violated the Act in this regard. With respect to Fleming's initial statement at the April 28 meeting that he could not "afford a Union," the entire context of the conversation made it clear that Fleming told the employees, who were motivated by a desire to obtain a substantial wage increase, that he could not pay union scale and union benefits because he could not raise his rates and remain competitive. Ryan conceded in his testimony that Fleming's statement that he and Redde- man would have to assume more truckdriving duties and that the lesser seniority drivers and helpers would be phased out was explicitly conditioned upon the Respond- ent's agreement to pay the added cost of wages and benefits sought by the Union. Thus Fleming did not say to the employees that if they were represented by the Union that layoffs or other adverse consequences would inevitably flow from union representation of the employ- ees per se. The employees had expressed a desire for a raise of $1 an hour and explained that such was their prime objecti e and that union representation was a neg- ligible advantage which they would jettison in return for such raise, or at least for a compromise offer of overtime compensation. Clearly they expected the Union to nego- tiate for substantial economic improvements. They sug- gested that Fleming raise his rates. The discussion evolved into a quasi-negotiation for a wage increase. Fleming's reference to an already promised raise of 25 cents per hour was rejected by the employees as unsatis- factory. Fleming countered their economic expectations with economic arguments. Within such context, I con- clude that Fleming's remarks did not constitute an un- lawful threat to engage in economic reprisals but rather constituted a legitimate expression of his expectation of economic consequences if he agreed to the economic de- mands that the employees sought through union repre- sentation and as such was privileged as free speech. .:L.R.B. v. Gissel Packing Co., Inc., 35 U.S. 575, 616 (1969). F. 4YnaIYvysis Of 8(a)(3) 41Iegations 1. The lockout The complaint alleges that "on or about April 30, the Respondent locked out its employees William Cork, James Macak, Harry Mazza, and Michael Ryan." It is argued that the Respondent on April 30 diverted all available managerial and supervisory personnel to per- form the work of the employees who had supported the Union, in retaliation for their union activities, i.e., attend- ance at the union meeting. Although the Respondent usually commences its workday at 8 a.m., there were occasions in the past when it started earlier or later than 8 a.m. The empoyees were first advised of Fleming's intention to commence work at 7 a.m. on April 30, after they had advised him of the forthcoming union meeting. However, Fleming's testimony of the necessity to commence the shift at 7 a.m. that Monday because of the press of business was not controverted, nor in any way challenged. The Gen- eral Counsel does not explicitly argue that the decision to commence work at 7 a.m. was discriminatorily moti- vated. However, the General Counsel stresses the lack of disciplinary measures taken against tardy employees in the past. Whatever the Respondent's past practice with respect to individual tardy employees may have been, there is no evidence that a similar mass tardiness had ever occurred before. The Respondent does not take the position that employees were disciplined for tardiness. Rather its position is that it was necessary for business reasons that all available personnel be utilized at 7 a.m. on April 30 and accordingly in the absence of the em- ployees all available persons were assigned trucks and departed at 7:30 a.m. prior to the arrival of employees who had attended the union meeting. The warehouse was ocked because everyone else was out working on a truck. Fleming was given no indication as to how long the meeting would last. No employee indicated to him that any effort would or could be made to reschedule the union meeting. There is no evidence that any effort was made to reschedule the meeting. Fleming gave notice to Cl NI t.]RY NIO's'IN(i & S IORA(iF; (07 678 I)ECISIO)NS OF NATIONAl. I.AI()R RFI!ATIF()NS O()ARD the employees that the decision to attend the union meet- ing was theirs to make but that he intended to get his work done. The fair import of that notice was that he would proceed with his work as previously announced by whatever means he could. Only Macak gave him some indication that he would choose to attend the union meeting after Fleming had asked him whether he intended to report for work on the following Monday. Macak's response revealed that he had opted to attend the union meeting rather than to report for work. The action by the Respondent herein is not the classic "lock-out" which is utilized by an employer as an eco- nomic weapon in a labor dispute. The Respondent did not deny available work to employees who were willing to work. The work was available between 7 and 7:30 a.m. Certain employees chose not to be available at that time because of their desire to engage in union activities. When those employees made themselves available there was no work, not because the Respondent willfully with- held it from them as a punishment or an economic weapon, but because that work, for compelling reasons, had been assigned to others. All available persons were assigned to trucks and were on the road. No one was available to wait for the tardy employees and assign them to other work in the warehouse. The Respondent was not obliged to arrange its work schedule in order to make it more convenient for employees to engage in concerted protected activities. The Respondent was obliged not to interfere with those activities by discri- minatorily arranging working conditions for the purpose of inhibiting union activities. I conclude that there is in- sufficient evidence upon which to conclude that the Re- spondent purposely arranged its work schedule to inter- fere with the employees' organizational activities. I find that the Respondent did not unlawfully discriminate against its employees by locking them out or by denying them an opportunity to work on April 30. 2. The May I layoff The complaint, as amended, alleged that the Respond- ent unlawfully and discriminatorily laid off employees Cork and Ryan on May 1. Fleming testified with a great degree of vagueness that his warehouse duties prior to May 1 had diminished and accordingly he had assigned himself as the most senior person to truckdriving duties on May 1. There is no specific evidence as to what oc- curred on May I to necessitate his assumption of driving duties on that date or thereafter. There is no evidence that the state of business declined to such an extent be- tween May I and May 17 that Reddeman who normally works on trucks 5 percent or less of his time in emergen- cy situations was assigned to moving work. There is spe- cific evidence that the state of business declined on May 1 and remained depressed for 2 weeks so as to necessitate the reduction in assignments to Cork and Ryan from the previous average of 35-40 hours per week to a mere 7 or 14 hours per week. On the contrary, Fleming testified that April 30 and May I constituted the height of his moving season. Moreover, Fleming in the April 30 meet- ing told his employees that if he were compelled to accede to economic demands made by the employees through the Union he would in that circumstance be compelled to assign himself and Reddeman to moving duties and thus reduce the work of the least senior em- ployees. The implied converse of that proposition is that without additional costs the normal routine would be that he and Reddeman would not normally and regularly engage in moving work to the detriment of the least senior workers. Clearly then on April 28 he did not per- ceive an imminent downturn in business. However after the April 28 meeting where Fleming expressed his oppo- sition to employees' unionization and his fears as to its economic impact, five of his employees chose to pursue their union activities by attending a union meeting. Thereafter, Fleming was faced with a demand for recog- nition by the Union. He then effectuated what he had predicted to employees would occur only if he were obliged to accept the higher costs of the union wage scale and other benefits, i.e., the deprivation of work as- signments to the least senior employees commencing on I of the 2 busiest days of his season. From such circum- stances it can only be inferred that he was motivated not by business reasons but by a desire to discourage the union activities and desires of all his employees. Accord- ingly, I conclude that the Respondent violated Section 8(a)(3) and (1) of the Act by the layoff and/or depriva- tion of work to Cork and Ryan between May I and May 17. G. he ReJu.val lb Bargain The complaint alleges that the appropriate bargaining unit is: All full-time and regular part-time warehousemen, local movers and helpers employed by the Re- spondent at its facility [in] Addison, Illinois, but ex- cluding over-the-road drivers, all other employees, guards, and supervisors as defined in tbe Act. The General Counsel argues that such unit on May I consisted of employees Macak, Prinske, Adkins, Mazza, Cork, and Ryan and excluded the long haul drivers Lei- terman, Gilmer, and Lee; the estimator Hagel; the stu- dents Kluga and Dwyer; and the part-timers Hartle and Landers. The Respondent argues that the appropriate unit must include all the foregoing employees. If the General Counsel is correct, the Union on May I clearly had obtained designation as bargaining representative of five of the six employees in the appropriate unit."' Al- though the Union was unaware of the employment of persons other than those who had executed union au- thorization cards plus Adkins. the demand for recogni- tion was premised upon the assertion that the Union rep- resented a group of employees accompanied with a pres- entation of five authorization cards. Rzewnicki's demand therefore constituted a demand to represent all employ- ees engaged in the job functions in which those employ- "' Although Mazza did nrot report for work ater Ma I here is inuf- ficient evidence that he quit his empliymenl in or hefirre May I a al- leged hy the Resprondenlt in its brief Mazza a'. the in loest.i '.eniorist and he would nllt have been assigned lo work on Ma) I in any evetlI the fact hat he did inot appear on M I i i t liclu'si'e idence that he .oluniarily terminaied hi, emplo imrint a f Ithai date At s'ome un- kLo,.'. date hereafter hc appareinl l q1it CFNJURY MO(VING & STORAGIF h7') ees were engaged. I conclude that the Union requested recognition in a manner which, although generalized. sufficiently apprised the Respondent of the unit which it sought to represent as the Union clearly did not have a majority in a unit of all 49 employees actually utilized by the Respondent. Cf. Pilot Freight Carriers, Inc. and BBR of Florida, Inc.. 223 NLRB 286 (1976). The ultimate question as to the Union's majority status is not, however, resolved by the determination that a unit of all employees is an appropriate unit. Rather it must be determined that the unit sought by the Union was an appropriate unit regardless of whether a broader unit was also appropriate. Pilot Freight Carriers, Inc.. supra at 304. Accordingly, it must be decided whether a broader unit is the only appropriate unit herein. H. The Core Group Adkins, Macak, Prinske, Cork, Dwyer, and Mazza form the core group of drivers and helpers who engaged in the work of movement of household goods of which the vast preponderance were part of interstate shipments. They appeared at the Respondent's warehouse daily and were assigned to trucks including vans and tractor-trailer units which were owned or leased by the Respondent. The preponderance of that work involved movement of goods in the local area; i.e., greater Chicago. This how- ever was not restricted by intrastate deliveries but also included runs to points in nearby States, i.e., Wisconsin and Indiana, but which precluded the necessity of over- night stops. Accordingly they began and ended their workday at the warehouse. When engaged in this type of work they were hourly paid. Macak, Prinske, and Adkins were assured a 40-hour week and also received vacation benefits. The others in the core group worked as needed but, with the exception of Mazza, they worked an average of 33-40 hours a week. All of the core group employees performed identically the same job functions under the same supervision of Fleming. Mazza per- formed the same duties but worked fewer hours. Thus in the 1 -week period prior to May , he averaged about 25 hours per week but not less than 13 hours every week. Within that core group all employees on occasion per- formed loading, unloading, and warehouse duties. Some performed mechanical work. Macak and Cork were driv- ers. Prinske and Mazza did not drive. Adkins, Ryan, and Cork started out as helpers and eventually obtained full truckdriving licenses. All persons were supervised by Fleming directly. Leiterman, Gilmer, and Lee are characterized by Fleming as "contractors." They spend 85-95 percent of their time engaged in full-time long haul driving. Leiter- man and Gilmer drive tractor-trailer units owned by the Respondent. Lee owns his own tractor and unlike Leiter- man and Gilmer he bears the expense of maintaining his tractor. The actual loads driven by the long haul drivers do not appear to differ from the so-called local loads of the core group employees and the trucks for both are in- terchanged. That is to say on occasions the tractor-trailer units were used for local moves and on occasions the vans were used on interstate movement for long haul de- liveries. In addition to a more prolonged absence from the ter- minal than the core group employees. the long haul driv- ers are compensated on a different basis when engaged in long haul driving. They are paid by the receipt of a per- centage of the transportation costs charged to the client. That percentage is determined by Fleming. The fee to the long haul driver is forwarded to him while he is en route by a "comchek," a device similar to a Western Union money order. At the far distant pickup point and delivery points the long haul drivers pursuant to their own discretion hire their own loaders and unloaders and helpers and pay them with their own funds for which they are not reimbursed by Fleming. On those occasions when the long haul drivers made deliveries to the Re- spondent's warehouse or to a local point, they utilized employees in the core group who were sometimes paid by the long haul driver and sometimes paid by the Re- spondent. When long haul work is not available the long haul drivers are assigned local work by Fleming. To some extent, the degree of which is unclear, local drivers have performed long haul driving. Thus Macak has driven to cities across the country. On those occa- sions he has hired helpers but he was reimbursed by the Respondent except on the rare occasion when Fleming decided to pay him a flat rate. However, Ryan was not assigned to an overnight trip prior to May 1 and it is not clear to what extent local helpers had been assigned to long trips. Landers, Hartle, and Kluga, part-time employ- ees, were assigned to long haul work and to local work. Prior to becoming a part-time worker Kluga had been employed from January 1978 to January 1979 as a long haul driver. As a part-time employee he performs ware- house work at an hourly rate. Landers commenced em- ployment in 1977 as a part-time employee. He is em- ployed 5 nights a week by a railroad and has worked I or 2 days a week or less on local work and does long haul driving during his vacations from the railroad. Hartle, who is employed full time by a competitor mover has engaged in long haul work for the Respondent also on his vacations. Hartle was hired in February 1978. The Board has found appropriate units inclusive of both local and long haul drivers and also units of local drivers exclusive of long haul drivers. Gerald G. Gogin. d/b/a Gogin Trucking, 229 NLRB 529, 538 (1977), enfd. 575 F.2d 596 (7th Cir. 1978), and cases cited therein. However, the Board has also stated that a union must not necessarily be bound to represent the most appropri- ate unit and where there is sufficient community of inter- est between all the drivers as is evidenced by identical supervision, mode of pay, duties, and fringe benefits as well as regular interchange, a union will not be con- strained to seek a unit which excludes the long haul driv- ers. Gogin, ibid. Where local and long haul drivers are shown to form separate, clearly defined, and functionally distinct units, and possess separate interests which can be effectively represented for collective bargaining, the Board has held that the community of interest between the two groups is not sufficient to require their inclusion in any appropriate unit. Georgia Highway Express. Inc., 150 NLRB 1649 (1965); Western Distributing Co. d/hba 'Western-Davis Company, Inc., 236 NLRB 1224 (1978). CENTURY MOVING & STORA(;F b 7) 680 DECISIONS O()F NATIONAL LABOR RELATIONS BOARD Although there is sufficient evidence in this case to support a conclusion that the inclusion of all drivers would be appropriate, there is also sufficient evidence that a separate unit of local drivers and helpers would also be appropriate inasmuch as they possess sufficient separate interests which can be effectively represented separately. I base this conclusion on the fact that, al- though there is some interchange and contact between the two groups as well as identical supervision, the two groups basically form two distinct entities with respect to function and method of compensation. The inter- change and contact is relatively minimal. Between 85-95 percent of their time the long haul drivers are absent from the warehouse and from contact with local drivers, and from the type of day-to-day supervision flowing from local driving. The compensation of long haul driv- ers differs from that of local drivers to such an extent as to necessarily render their interest as dissimilar. While on the road, they utilize complete discretion with respect to the hiring of and compensation of their helpers. When Macak had occasion to hire a helper on an overnight trip, he was reimbursed for that expense by Fleming. It was only the rare occasion when Fleming paid Macak a flat rate for a trip. Indeed Fleming was unable to recall a single specific incident when that had incurred. Long haul drivers are only assigned to local work when long hauls are unavailable. It appears therefore that Fleming will preempt the work of local drivers and helpers to provide the long haul drivers with work. It is clear that Fleming's seniority roster did not include the long haul drivers. Consequently they were exempted from his May I policy of assigning work according to seniority. Ac- cordingly, I find that a unit herein excluding long haul drivers is appropriate. The next question to be resolved is the unit placement of certain individual employees; i.e., the part-timers, stu- dents, and the estimator. At the hearing, the Respondent questioned the propriety of including Mazza as a regular part-time local helper. The Respondent's brief appears to concede the regularity of his employment and inclusion within the unit inasmuch as it argues that employees with less regular employment ought to be included, i.e., Landers and Hartle. Part-time employees who work on a regular basis, albeit a reduced number of hours per week, are included in the unit when their community of interest with other unit employees is manifested. Manncraft Exhibitor Serv- ices, Inc., 212 NLRB 923 (1974); Bekins Moving & Storage Co., 211 NLRB 138, 143 (1974). Irregular or casual em- ployees are excluded. Pilot Freight Carriers, Inc., supra, fn. 31. Part-time employees who maintain other full-time employment and who work on an on-call basis are not excluded by virtue of their other employment and will be included in the unit if their employment is regular and the differences in the conditions of employment from unit employees is insubstantial. Manncraft Exhibitor Serv- ices Inc., supra, Fresno Auto Auction, Inc., 167 NLRB 878 (1967); V.LP. Movers, Inc., 232 NLRB 14 (1977). Mazza clearly falls within the category of a regular part-time local helper and was employed on May I. I shall include him within the unit. Landers is employed 5 nights a week by a railroad. When on vacation from the railroad he performs the duties of a long haul driver and a local driver. However, when not on vacation he is hourly paid and utilized as a local driver. Between May 31, 1978, and December 19, 1979, he received payment for work performed for the Respondent on or about 63 occasions. On only six of those occasions was he paid on the basis of a "draw," i.e., "comchek." Fleming testified that Landers worked as a local driver for about I or 2 days a week. Accord- ing to a reconstruction of the Respondent's records based upon payments to him, Fleming between May 31, 1978, and through 1979 worked from 6 to 44 hours per week and from I week per month to 10 consecutive weeks and in excess of 25 percent of the weekly pay pe- riods. However, during the 3-month period preceding May 1, 1979, he worked a total of 130 hours or an aver- age of about 10 hours per week. There was a hiatus in his work from March 16 to April 2. His next payment was on April 27 for 20 hours. (The typical wage rate was about $6 per hour.) In May 1979, he received pay- ments for 4 consecutive weeks based upon 17 to 28 hours work for each pay period. This regularity continued through 1979. However the same degree of regularity was not experienced in his 1978 employment after May 31. In June 1978, he worked 31 hours on one occasion. In July 1978, he averaged 7 hours for 2 consecutive weeks. In August 1978, he received pay for 27 hours for I pay period. From the last week of August through the end of September 1978, he worked regular and substan- tial hours of an average of 25 hours per week. He aver- aged 35 hours for 2 pay periods in October. He ranged from 47 to 16 hours in 3 pay periods in November. In December, he received pay for 3 pay periods ranging from 7 hours to 29 hours. In January 1979, he received 8.5 hours for 2 pay periods. Despite the existence of several breaks in his employ- ment throughout 1978 and early 1979, because of the substantial amount of work performed over the course of the year preceding the recognition demand, I conclude that Landers' history of employment does not demon- strate such a pattern upon which it can be concluded that he was a casual employee. I therefore place Landers within the unit as a regular part-time employee on the date of the recognition demand. Hartle is employed full time by a competitor of the Respondent. He worked only on Saturdays in the ware- house for the Respondent and as a full-time driver only during periods of vacations from his regular employer. The Respondent's reconstructed records revealed that he worked with substantially less regularity than Landers. For a -year period preceding the recognition demand he was paid in only 19 weekly pay periods. One occasion was for 39.75 hours, a second was for 28 hours, and the balance ranges from 9 to 18 hours. In the 3-month period preceding the recognition demand he was paid on Febru- ary 19 for 7.5 hours, April 22 for 7 hours, and April 29 for 4.5 hours. As of the recognition demand date, I con- clude that Hartle was not employed on a substantial reg- ular basis and that he was therefore not included in the unit on that date. CFNTURY; MOVING & STORAGE h81 James Dwyer was hired in May 1978. He is a full-time college student and was so at the material time herein. He attended college at a campus located 200 miles from the Respondent's warehouse. Dwyer performed services as a helper for the Respondent during summer, Christ- mas, Easter, and spring breaks, and during the school term when the Respondent had moving jobs within that school area. He is hourly paid. He became licensed to drive a truck in the summer of 1979 subsequent to the events of May. During school breaks he has been called upon to serve as a helper on runs to other States, but it is not clear whether he was assigned to the long haul driv- ers or whether these runs entailed overnight stops. At the hearing, the Respondent produced records, or recon- structed records, purporting to reflect the hours worked by, or payment for, services to employees. These records and reconstructed records failed to reveal that Dwyer worked on four occasions in February for 10 hours, 5 hours, 2.5 hours, and 8.25 hours. I conclude that he worked on no other occasion in the 3-month period prior to May 1. Norbert Kluga was employed from January 1978 through January 1979 as a long haul driver. In January 1979, he became a college student and thereafter per- formed part-time services for the Respondent principally in the warehouse as an hourly paid employee. Fleming's testimony as to the regularity of Kluga's warehouse em- ployment was highly uncertain in that he speculated that Kluga worked "maybe a day or so a week." The Re- spondent's records revealed that after January 1, 1979, Kluga received payments in an irregular pattern. On Jan- uary 9, 17, and 26, he received checks for $420, $200, and $125, respectively. (He was paid between $6.50 to $7.50 per hour.) On February 7, he received a check for $125. For the pay period ending May 3, he was paid for 18 hours. On March 9, he received $7.50. On March 16 and 23, he received pay for $21.50 and 15 hours of work, respectively. There is no record for payment of services or hours of work by Kluga after March 23. Between March 23 and September 29, 1979, no checks were issued to Kluga, and there is no evidence that he per- formed any work during that 6-month period of time which of course included the summer vacation period. The Board has held that college students who perform full-time unit work during the summer months as well as part-time unit work on a regular basis during the remain- der of the year are to be included in the unit. Willow Corporation d/b/a Town & Country Supermarkets, 244 NLRB No. 52 (1979); Dick Kelchner Excavating Co., 236 NLRB 1414 (1978); Marine Petroleum Company, 238 NLRB 931 (1978); Giordano Lumber Co., Inc., 133 NLRB 205 (1961). A student who works only during the summer months is excluded from the unit. Willow Corporation d/b/a Town & Country Supermarkets, supra: South Station Liquor Store, Inc., d/b/a Berinson Liquor Mart, 223 NLRB 1115 (1979); Georgia-Pacific Corporation, 195 NLRB 258, 259 (1972); Giordano Lumber Co.. Inc., supra. The determinative criteria as to whether students are to be included in a unit appears to be the regularity of their part-time employment upon which to premise a community of interest with the local drivers and helpers. Kluga's past history of employment was that of a long haul driver. His part-time employment chiefly as a ware- house employee is irregular. Moreover it does not appear that he was worked at all during the summer of 1979. Although Dwyer appears to have engaged in local driv- ing as well as long haul driving, I conclude that his pat- tern of past unit employment is not sufficiently regular or substantial to warrant his inclusion in the unit. The final unit placement issue concerns the status of Tom Hagel, the estimator. Ninety-five percent of Hagel's time is spent in surveying the clients' premises, estimat- ing the moving costs, determining the size of trucks to be used, and arranging the proper cartons and crates. He is paid $175 per week on a guaranteed basis. He is not compensated for work in excess of 40 hours and unlike the other local drivers and helpers he is not required to submit a timecard or to account on any other basis for his hours of employment. Only if the exigencies of busi- ness require does Hagel perform work on a truck which is estimated at 5 percent or less of his time. I conclude that because of the variance in the nature of his work, mode of compensation, and conditions of employment from that of the local drivers and helpers he does not share a community of interest with them and therefore Hagel was not a unit employee on May 1. Based upon the foregoing analysis, I conclude that the Union on May I demanded recognition as bargaining representative for employees in an appropriate unit which consisted of the core group and one additional regular part-time employee, Landers. Thus on May I, the Union was validly designated as collective-bargaining representative by five of seven employees in that unit. 1. Bargaining Obligation The final question to be resolved is whether the Re- spondent breached an obligation to bargain with the Union on May I and thus violated Section 8(a)(5) of the Act and whether such breach warrants a remedial bar- gaining order. As I have concluded above, the Respond- ent engaged in conduct violative of the Act by coercive- ly interrogating its employees prior to the May I demand for recognition and by immediately laying off two employees after the demand for recognition was made on May 1. The Respondent argues that whatever coercive conduct that the Respondent had engaged prior to the recognition demand such conduct could have had no tendency to undermine the employees' support of the Union inasmuch as it preceded the execution of the five authorization cards. The Respondent argues of course that no coercive conduct occurred either before or after the demand for recognition but, even if such were found, such conduct is too minimal to warrant a conclusion that the Respondent engaged in coercive conduct for the pur- pose of eroding the employees' support of the Union or that, had it done so, such conduct warrants a remedial bargaining order. The Supreme Court has held in V.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969), that an employer violates Section 8(a)(5) of the Act when it refuses to rec- ognize and bargain upon demand with a union whose majority status is established by valid authorization cards CENTURY MOVINCI & STORAGE 681 X82 I)tECISI()NS OF NATIONAL L.A1BOR RELATIONS BOAR) when the contemporaneous unfair labor practices of the employer are likely to destroy the 'union's majority and seriously impede the election process. The Board has held, citing the Gissel decision that a violation of Section 8(a)(5) occurs "whether the unfair labor practices trig- gering the finding that the employer was under an obli- gation to bargain occur before, at the same time, or after the actual refusal to bargain." Pilot Freight Carriers, Inc., supra. The Supreme Court has stated in Gissel Packing, supra at 614-615: If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or fair rerun) by the use of traditional reme- dies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. Under the guidelines as set forth by the Supreme Court, the Board has concluded that a bargaining order is appropriate even under circumstances where the unfair labor practices of the employer were not extensive with respect to frequency or number of unfair labor practices committed, but where, because of the nature of the unfair labor practice and its circumstances, e.g., a single threat to close down a plant or the granting of benefits within a small unit, it would have been unlikely to have conducted a fair election. C & T Manufacturing Compa- ny, 233 NLRB 1430 (1977): Crago Gear & Machine Works, 236 NLRB 539 (1978); see also: Unimedia Corpo- ration, 235 NLRB 1561 (1978), involving critically timed discriminatory layoffs of employees. In this case the Respondent upon learning of its em- ployees' interests in union representation coercively in- terrogated them. In that confrontation Fleming evinced his hostility to the Union. Although I have concluded that he did not unlawfully threaten them with reprisals at that time, his subsequent conduct reasserted, augmented, and enhanced the coercion of that occasion. In the initial confrontation, Fleming predicted what might occur if certain contingencies were to take place, i.e., the insis- tence in bargaining for excessive economic demands. Fleming's essential implied message to the employees at that time was that in the absence of such economic de- mands by a collective-bargaining representative lower se- niority employees were not in jeopardy of loss of work. However, after the employees pursued their interests in the Union and designated the Union as their majority representative and after the Union demanded recogni- tion, the Respondent adopted and implemented for dis- criminatory reasons a system of assigning work which caused the layoff of two of the lower seniority employ- ees on the busiest day of the season. The only inference that employees as a whole could gather from such con- duct was that the Respondent was engaging in punitive and retaliatory actions because of the employees' support of the Union. Inasmuch as five employees decided to attend the union meeting rather than to report for work at 7 a.m. on April 30, Fleming could only have conclud- ed that those five employees supported the Union. Thus his discriminatory conduct was directed to two of five known union supporters. Furthermore it affected two of seven unit employees. I conclude that Fleming's conduct was calculated and tended to dissipate and erode the em- ployees' support of the Union and thus make unlikely the possibility of holding a free election. Accordingly, I con- clude that the appropriate remedy herein for the Re- spondent's violation of Section 8(a)(5) of the Act is a bargaining order. ' CONCI USIONS 1: LAW 1. Century Moving & Storage, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers, Oil Drivers, Filling Station & Plat- form Workers Union, Local 705, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and desires, the Respondent has violated Sec- tion 8(a)(1) of the Act. 4. By laying off employees William Cork and Michael Ryan from May 1, 1979, to on or about May 17, 1979, for the purpose of discouraging its employees' union ac- tivities and support, the Respondent violated Section 8(a)(3) and (1) of the Act. 5. All full-time and regular part-time warehousemen, local movers, and helpers employed by the Respondent at its Addison, Illinois, facility, but excluding over-the- road drivers, casual employees, and all other employees, guards, and supervisors, as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. Since April 30, 1979, the Union has been and is the exclusive collective-bargaining representative of the Re- spondent's employees in the unit herein found appropri- ate within the meaning of Section 9(a) of the Act. 7. By refusing to bargain with the Union as the collec- tive-bargaining representative of its employees in the ap- propriate unit on and after May 1, 1979, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REIMEl)Y Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. " The Respondent argues that refusal of rcognition owas justified in the face of bad-faith bargaining by the Uion l;e, its request that lcm- ing accept the association conitract Hos.eser, Fleming was Inlllcommittal in his response to Re'rnlicki and the discussi.in neler reached the stage where Rzewnicki could be characterized as haing taken an intransigent, adatlaint position on the substanlce of a cntracl Cf ruphic Arlr Intrnau- minul Utln, Local 280 (JUaml HI Brry Comnpany. .l all. 235 NLRB 1084 (1Q78): Chaui'ur. antm'rr and rlper. L.wal IU n iVo n 301 ajJfiliaed with InterIatrional BrRierherlood laiumrnor. Chaufflrur. 14 urchuelenl and Help,er io Anerica (erclhniur lvinig anud Srgrug. Ir) 1. 210 NI. R 783 (74) CFNTURR Y M·OVING & STORAGEI (81 The Respondent shall make whole Michael Ryan and the estate of William Cork for any loss of pay suffered by William Cork and Michael Ryan, which shall be com- puted in accordance with the formula set forth in F. W/: Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977). 12 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER13 The Respondent, Century Moving & Storage. Inc., Addison, Illionis, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union activities and desires. (b) Laying off or otherwise discriminating against em- ployees because of the union activities of some or all of them. (c) Refusing to recognize Truck Drivers, Oil Drivers, Filling Station & Platform Workers Union, Local 705, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective- bargaining representative of its employees in this appropriate unit: All full-time and regular part-time warehousemen, local movers and helpers employed by the Re- spondent at its Addison, Illinois facility, but exclud- ing over-the-road drivers, casual employees, all other employees, guards and supervisors as defined in the Act. z' See, generally,. ri Plurnhgin d I&eaing Co., 138 NLRB 716 (1962) -a In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations orf the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, cnclusiins. and Order. and all objections therelo shall he deemed wais ed for all purposes. (d) In any like or related 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 folloring affirmative action swhich is deemed necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain swilh the above-named labor organization as the exclusive repre- sentative of the employees in the above-described unit concerning their wages, hours, and other terms and con- ditions of employment and, if an understanding is reached, embody it in a signed document if asked to do so.( (b) Make whole Michael Ryan and the estate of Wil- liam Cork for losses Michael Ryan and William Cork suffered as the result of discrimination against them in accordance with the formula set forth in the remieds, sec- tion of this Decision. (c) Preserve and, upon request, make available to the Board or its agents. for examination arid copying, all payroll records, social security payment records. time- cards. personnel records and reports, arid all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Addison, Illinois, facility copies of the attached notice marked "Appendix."'' Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. The allegations of the complaint not specifically found to be violative of the Act are dismissed. 4 In the event that this Order is enforced b a Judgment of a United Slates Court of Appeals, the words in the nolice reading "Posted h Order of the National Labor Relalions Board" shall read Postd iPurIu- ant to a Judgment of the Unilcd States Court f Appeals Enforcing an Order of the National L abor Relations Board " CENTR MOVING & STORAGE 683