G & A Truck Line, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1967

168 N.L.R.B. 846 (N.L.R.B. 1967)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G & A Truck Line , Inc. and Local 7, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case
7-CA-5955
December 12,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 1, 1967, Trial Examiner Eugene
F. Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respon-
dent had not engaged in certain other unfair labor
practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following addi-
tions and modifications:
1. We agree with the Trial Examiner that
Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union member-
ship, sentiments, and activities, persuading em-
ployees by promises of benefits and threats of
reprisal to withdraw their union authorization cards
and applications for membership, and assisting
them to withdraw such cards.
2. The Trial Examiner, though finding that
Respondent after receiving the Union's demand for
recognition embarked on an unlawful campaign to
dissipate the Union's representative status,
nevertheless dismissed the 8(a)(5) allegation of the
complaint on the ground that the Union did not
represent a majority of employees in the ap-
' See e.g., Merrill Axle and Wheel Service, 158 NLRB 1113, 1114-15;
N.L.R.B. v. Sagamore Shirt Company, 365 F.2d 898, 908 (C.A.D.C.),
enfg. 153 NLRB 309; N.L.R.B. v Cactus Petroleum, Inc., 355 F.2d 755,
760, fn. 8 (C.A. 5), enforcement denied 134 NLRB 1254.
propriate unit when it requested recognition. While
we agree with the Trial Examiner that the denial of
recognition was not based on a good-faith doubt, we
disagree with his conclusion that the Union was not
the majority representative, and accordingly find
merit in the General Counsel's exception to the
Trial Examiner's failure to find that Respondent
violated Section 8(a)(5) and (1) of the Act.
The Trial Examiner found, and we agree, that
there were nine employees in the appropriate unit
when the Union demanded recognition. However,
he concluded that at this time the Union had only
four valid authorization cards from unit employees.
In so concluding, he rejected as "void, ab initio" the
signed authorization cards of employees Anderson
and Salisbury because these men executed cards in
reliance on what the Trial Examiner considered to
be the "substantial and critical misrepresentation"
that everyone else had already signed.
Contrary to the Trial Examiner, the Board has
held, with court approval, that statements of this
type are immaterial in determining the validity of
authorization cards, even when signed in reliance
thereon.' Such statements are harmless sales talk or
puffing,2 which do not operate "to overcome the ef-
fect of [the employees] overt action in signing."3
As the cards of Salisbury and Anderson were
properly authenticated, and not otherwise con-
tested, we find that they effectively delegated bar-
gaining authority to the Union and we shall include
their cards in determining the Union's majority
status. With these cards the Union represented a
majority of employees in the appropriate unit when
it made its demand for recognition and bargaining.
Accordingly, and as we agree, for the reasons
stated by the Trial Examiner, that Respondent did
not have a good-faith doubt of the Union's majority
status, we find that Respondent violated Section
8(a)(5) of the Act by refusing to recognize and bar-
gain with the Union.4 In the circumstances, we shall
issue the customary order requiring the Respondent
to bargain with the Union.
ADDITIONAL CONCLUSIONS OF LAW
Delete paragraph No. 3 from the Trial Ex-
aminer's Conclusions of Law and substitute the
new paragraphs Nos. 3, 4, 5, and 6 therefor:
"3. Respondent has not violated the Act by its
discharge and failure to reinstate Michael Hart-
sox."
"4. All mechanics and garage employees at
Respondent's Three Rivers and White Pigeon ter-
minals, excluding office clerical employees,
truckdrivers, guards, and supervisors as defined in
2 Harris Epstein , dlbla Top Mode Manufacturing Co., 97 NLRB 1273,
1296; N.L.R.B. v. Sagamore Shirt Company, supra.
3 N.L.R.B. v. Cactus Petroleum , Inc., supra, 760.
4 Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C.A. D.C.),
cert. denied 341 U.S. 914.
168 NLRB No. 106
G & A TRUCK LINE, INC. 847
the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act."
"5. Since January 3, 1967, the Union has been
the exclusive bargaining representative of all of the
Respondent's employees in the aforesaid ap-
propriate unit."
"6. By its refusal to bargain with the Union with
respect to wages, hours, and working conditions,
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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, G & A Truck Line, Inc., Three Rivers,
Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating any of its employees regarding
their union membership, sentiments, and activities
in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of
the Act, trying to persuade, or persuading, its em-
ployees by promises of benefits or threats of
reprisal, such as discharge, layoff, or diminished
benefits, to withdraw their union authorization
cards or applications for membership in the above-
named Union or any other labor organization, and
assisting them to withdraw such cards or applica-
tions in writing, or in any other manner interfering
with, restraining, or coercing its employees in the
exercise of any right guaranteed to them by Section
7 of the Act, except to the extent that such right is
affected by the proviso in Section 8(a)(3) of the Act,
as amended by the Labor-Management Reporting
and Disclosure Act of 1959.
(b) Refusing to bargain collectively with the
Union as the exclusive representative of its em-
ployees in the following appropriate unit:
All mechanics and garage employees at Respond-
ent's Three Rivers and White Pigeon terminals,
excluding office clerical employees, truckdrivers,
guards, and supervisors as defined in the Act.
2. Take the following affirmative action:
(a) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
the Respondent's employees in the unit found ap-
propriate with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and embody in a signed agreement
any understanding reached.
(b) Post at its terminals in Three Rivers and
White Pigeon, Michigan, copies of the attached
notice marked "Appendix."5 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 7, after being duly signed by Respondent's
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations not found
herein.
5 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate any of our em-
ployees regarding their union membership, sen-
timents, or activities in a manner constituting
interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
WE WILL NOT try to persuade, or persuade,
our employees by promises of benefits or
threats of reprisal such as discharge, layoff, or
diminished benefits, to withdraw their union
authorization cards or applications for mem-
bership in Local 7, International Brotherhood
of Teamsters, Chauffers, Warehousemen and
Helpers of America, Ind., or any other labor
organization, or assist them to withdraw such
cards or applications in writing.
WE WILL NOT in any other manner interfer
with, restrain, or coerce our employees in the
exercise of any rights guaranteed to therm by
Section 7 of the Act, except to the extent such
right is affected by the proviso in Section
8(a)(3) of the Act. ,
WE WILL, upon request, bargain collectively
with the Union as the exclusive bargaining
representative of our employees in the unit
described below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, and will em-
body in a signed agreement any understanding
reached. The bargaining unit is:
All mechanics and garage employees at
Respondent's Three Rivers and White
Pigeon terminals, excluding office clerical
employees, truckdrivers, guards, and su-
pervisors as defined in the Act.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
the above-named Union or any other labor or-
ganization , except to the extent that such freedom
is affected by the proviso in Section 8(a)(3) of the
Act, as amended by the Labor-Management Re-
porting and Disclosure Act of 1959.
G & A TRUCK LINE, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Bou-
levard, Detroit, Michigan 48226, Telephone
226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in this
case are whether or not Respondent, G & A Truck Line,
Inc., (1 ) coerced employees at its Three Rivers and
White Pigeon terminals in Michigan, by interrogation
about their union activities and sentiments and threats of
various types of reprisal if they joined or assisted the
above Union and solicited them by threats and otherwise
to withdraw their designation of said Union as their bar-
gaining agent , in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act, (2) discharged and
refused to reinstate Michael Hartsox because of his af-
filiation with the Union and other concerted activity, in
violation of Section 8(a)(3) of the Act, and (3) by the
above and other conduct tried to undermine and destroy
the Union's status as exclusive bargaining agent of em-
ployees in an appropriate unit , and refused thereby to bar-
gain in good faith with it as such agent, in violation of Sec-
tion 8(a)(5) of the Act. The issues arise on a complaint is-
sued April 7, 1967, by the Board's Regional Director for
Region 7,1 and answer of Respondent admitting jurisdic-
tion but denying the commission of any unfair labor prac-
tices. A hearing on the issues was held before me at Three
Rivers, Michigan , on May 31 and June 1, 1967, in which
all parties participated through counsel or other represent-
ative. All parties waived oral argument at close of the
testimony, but General Counsel and Respondent have
filed written briefs which the Trial Examiner has carefully
considered in preparation of this Decision.
Upon the entire record in the case, and from my obser-
vation of all witnesses on the stand, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS, AND STATUS OF THE UNION
Respondent is a Michigan corporation, with its prin-
cipal office and terminal in White Pigeon, Michigan, and
another terminal in Three Rivers, Michigan, where it is
engaged in the transportation of freight by motor vehicle.
These terminals are the only facilities involved in this
case. In the calendar year 1966 Respondent in its busi-
ness performed transportation services valued in excess
of $1 million, of which gross revenue in excess of
$500,000 was derived from transportation of commodi-
ties in interstate commerce, and in the same period
Respondent had direct inflow to its Michigan terminals
valued in excess of $50,000. Respondent admits, and I
find, that it is and has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The above Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Union's Campaign and Demand for Recognition
Respondent's drivers at both terminals have been
unionized since about 1940, and since February 1964,
Respondent has recognized the Union as bargaining
agent of its drivers, operating under a contract which was
effective from February 1, 1964, to March 31, 1967. At
the times mentioned herein, driver Herman Frain was the
union steward for drivers at Three Rivers terminal, and
driver Francis Schneider, a former union steward and of-
ficer, also worked there. Early in December 1966,
Michael Hartsox, a night mechanic at Three Rivers,
asked Frain how mechanics could join the Union, and
Frain gave him membership application cards for the
Union2 and also to William Speese and Floyd Marciniak,
the other mechanics on the same shift. Frain also invited
any mechanics at both terminals who were interested in
the Union to attend a driver's grievance meeting to be
held in a local tavern on December 31, 1966. Mechanics
Clifton Salisbury and Larry Anderson signed cards at
that meeting, and on January 2, 1967, mechanics Speese,
Marciniak, and Donald and Michael Hartsox signed
similar cards. The circumstances and aftermath of the sol-
icitation and execution of the cards will be discussed
below.3
On January 3, 1967, Vice President Jack Brand of the
Union, with Frain and Schneider, presented the six
signed cards to John P. Jones, secretary of Respondent,
at its White Pigeon office. Jones examined them and
wrote down the names of the signers and dates of execu-
tion. Brand then cited to him the driver's contract, saying
that under the interpretation of article 2, section 3 thereof
by its attorney, the Union claimed that when the em-
ployer examined the membership applications he was
legally recognizing the Union as bargaining agent for the
I The complaint issued after Board investigation of charges filed by the
above Union on March 3 and 9, 1967.
2 Each card was not only an application for membership in the Union,
but also purported to designate it as the signer's representative for pur-
poses of collective bargaining.
3 The Union procured a signed card from mechanic Steven Russey on
January 2, but does not rely on it to prove its majority status.
G & A TRUCK LINE, INC. 849
mechanics;4 he also suggested that if Jones had any
questions about this interpretation, he could contact the
secretary of the Motor Carriers Employer Association.
He asked Jones if Respondent would sign a "recognition"
agreement with the Union covering the mechanics. Jones
replied he could do nothing about it, but would talk to
Respondent's president, Glenn MacNamara.5 Brand told
him the union agents would return that afternoon with a
form of recognition agreement. Brand returned in the af-
ternoon with that agreement, and presented it to Jones
and Vice President Thomas MacNamara, asking them to
execute it in accordance with the contract clauses previ-
ously mentioneds They replied that they would discuss
it with their attorney that week. During the discussion,
Glenn MacNamara walked in and told the union agents
bluntly Respondent was not signing anything, as he had
serious doubts whether the Union represented a majority
of the mechanics. Respondent repeated this refusal when
the Union made the same request on January 19, 1967,
at a grievance conference between the parties under the
drivers' contract.'
B. Respondent's Reaction to the Demand
Immediately after Jones secured the names of the card
signers on January 3, he gave the information to the Mac-
Namaras. Thomas MacNamara at once talked to all the
mechanics, either personally or on the telephone, asking
each if he signed cards, and when some admitted they
had, he asked each of them if they really wanted the
Union and why. Jones also questioned Speese and Mar-
ciniak about their reasons for signing cards, at the same
time telling them they had a right to join or not to join any
union; their answers to Jones do not appear in the record.
In questioning Marciniak, Thomas MacNamara com-
mented that the signing was a "blow," or surprise , to him.
When asked why he signed, Marciniak replied he did it
because "everybody else was going in," so he might as
well do the same, as he "did not want to be left out."
Several days later, Jones called Marciniak at home, told
him about a pension plan which Respondent was con-
sidering for the mechanics, suggested that Marciniak
might withdraw his membership application to the Union,
gave him the Union's address, and told him what to say in
his withdrawal request. Marciniak said he would think it
over. About a week later Thomas MacNamara asked
Marciniak in the Three Rivers garage if he had written the
letter. Marciniak replied, no, he was still thinking it over.
Shortly after this, MacNamara remarked to him in the
garage that if the Union came into the shop, the Company
would have to cut down on the hours of work for the men
and hire more help to compensate for it. A day or so later,
when Marciniak reported for work about 5 p.m., he was
called to the telephone to talk to MacNamara, who asked
if he had written the letter. He said, no. MacNamara said
he wanted him to write it and mail it out at once. Mar-
ciniak said he did not know if he would, that while he did
not care to join the Union, he would "go along with the
rest of the men," because it would be hard to get a job at
his age, and he "had to hold onto my job and do what is
right." He also explained he could not write any letter
then, as he had just come in to work. MacNamara replied
that that was "all right," he should still write it and mail it
at once, adding that it was up to him to do what he
wanted. Marciniak never withdrew his application from
the Union.8
Thomas MacNamara talked to Speese at his home on
January 3 or 4, and after Speese admitted on query of
MacNamara that he had signed the card, the latter asked
why he did so, and he replied "for protection," that
"things should all be in writing." MacNamara said he
could not stop Speese from joining the Union. He asked
Speese for details of the Union's pension plan, and
Speese replied that he thought it was better than Respond-
ent's plan. On Friday, January 6, Speese had a talk with
Jones, who asked if he knew all the advantages of
Respondent's pension and insurance plans. Speese said
he thought he did, but felt the Union's plan was better y
Thomas MacNamara called Anderson and Salisbury to
the White Pigeon office from their homes about 10 am.
on January 3, where both MacNamara and Jones talked
to them. Salisbury apparently arrived first, and Glenn
MacNamara asked him if he was unhappy at the garage,
and why he wanted to join the Union; Salisbury's answer
does not appear. Glenn MacNamara also said he wished
that Salisbury had talked to him first before signing the
card, and that he was sorry to hear the mechanics were
not satisfied with their jobs. He also asked Salisbury if he
did not appreciate the favor Respondent did him by lend-
ing him money. When Anderson came into the meeting,
Thomas MacNamara asked him if he had signed a card,
and he said, yes. Thomas said he wished Anderson had
talked to him first. Anderson replied "they said
everybody signed cards but Salisbury and me," and that
as he had been in unions before, it made no difference to
him whether he signed or not, and might as well join up
again. Jones then showed Anderson the list of card
signers, with dates on the cards, which indicated that An-
derson and Salisbury were the first to sign up. Anderson
commented "What the heck, they told me we were the
last to sign ." Salisbury also expressed annoyance at hear-
ing they were the first, not the last, to sign, and both he
and Anderson said they would like to do something about
it. Jones suggested they could write letters to the Union
asking for return of their cards. Anderson then said to
4 This provision of the contract, entitled "Non-Covered Units," reads
as follows:
This Agreement shall not be applicable to those operations of the Em-
ployer where the employees are covered by a collective bargaining
agreement with a Union not signatory to this Agreement or to those
employees who have not designated a signatory Union as their collec-
tive bargaining agent. At such time as a majority of such employees
in an appropriate bargaining unit designate , as evidenced by a card
check, a signatory Union as their collective bargaining agent, they
shall automatically be covered by this Agreement and applicable Sup-
plemental Agreements. In such cases the parties may by mutual
agreement work out a wage and hour schedule, subject to Joint Area
Committee approval.
The record shows that, while Jones assisted Respondent in negotia-
tion of labor contracts and also was its main representative in handling
grievances with the Union under the drivers ' contract , Glenn MacNamara
was the only company official who had the final say on Respondent 's posi-
tion in labor matters, with sole authority to sign contracts.
6 The agreement was short, merely providing for recognition of the
Union as bargaining agent of the mechanics , and was effective for only 90
days, contemplating negotiation of a formal bargaining contract in that
time.
' The facts above are found on credited and mutually corroborative
testimony of Brand , Frain , Schneider , Jones , and both MacNamaras
Testimony of any of these witnesses at variance therewith is not credited.
8 These facts are found on uncontradicted and credited testimony of
Marcimak.
9 These findings are based on credited and uncontradicted testimony of
Speese.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salisbury "in that case, I'll just write a letter and tell them
to cancel me out, I want to withdraw." Glenn Mac-
Namara then asked both men if they would give him co-
pies of any letters they wrote, and they said they would.
The next day Anderson privately had his wife write a
letter to the Union indicating that "at this time" he did not
want to join the Union and would like to have his applica-
tion back, and mailed it to the Union, giving a copy to
Respondent. Salisbury sent a similar letter to the Union,
with copy to Respondent.10
On January 3, Don Hartsox, an elderly mechanic at
Three Rivers, who had signed a union card with his son,
Michael, the day before, called Glenn MacNamara's
home to tell him about it. As Glenn had already left for
the office, Don told Mrs. MacNamara that he had signed
up, and that he wanted Glenn MacNamara to know about
it, as he did not like to "do something behind their backs
without telling them what we were doing." He also men-
tioned his talk with the union agents when he signed his
card. Mrs. MacNamara relayed this information to her
son, Thomas, at the office, and he told his father, who
then called Hartsox and mentioned he knew Don had
signed a card. Don admitted he had. Glenn MacNamara
said Don was not hired as a mechanic, that he was only a
part-time worker because he did not work all the time in
the garage, and that Glenn could not classify him as a
qualified, "Class A" mechanic. Glenn suggested that
Don send a letter to the Union withdrawing his member-
ship application and send a copy to Respondent. Hartsox
replied that he would, explaining that he had signed the
card without telling Glenn about it, because he could not
contact Glenn. He also explained to Glenn that he had
understood everyone in the shop had signed application
cards, and that it would be a closed shop, which meant
that everyone would have to be a union member or could
not work at the garage. On January 4, Don Hartsox sent
the Union a letter stating he wished to withdraw his mem-
bership application, and gave a copy to Respondent.''
On January 3, Thomas MacNamara called Michael
Hartsox at home, and asked why he joined the Union.
Michael replied "because everyone else did." That night
or the night of January 4, while at work, Thomas Mac-
Namara again asked him why he joined the Union, and
also whether, if a vote were taken or cards passed out
again, he would vote or sign for the Union. Michael said
he would. Thomas MacNamara then commented that
Hartsox was the lowest man on the seniority list and
would be the first one laid off in any layoff. Thomas also
commented that the mechanics were playing a "dirty
trick" on the Company by asking the Union to come in,
and that he would have appreciated it if Michael had
come to Respondent first before signing the card, and that
Michael was "not trying to co-operate with us." He also
said that Michael had a chance to go to Galesburg
(another garage) to work on diesel tractors, if the Union
did not come into the garages. He then asked Michael if
he would write the Union a letter withdrawing his appli-
cation. Michael replied that he might. When Michael got
"These facts are based on credited and mutually corroborative
testimony of both mechanics , as corroborated generally by both Mac-
Namaras.
11 These facts are found on credited testimony of Don Hartsox and
documentary evidence , as corroborated in part by testimony of both Mac-
Namaras Testimony of any of the three in conflict therewith is not
credited.
home on the 4th, he talked to his father about his discus-
sion with Thomas MacNamara, and they also discussed
his father's talk with management . On January 5, Michael
Hartsox sent the Union a letter withdrawing his applica-
tion for membership and sent- a copy to Respondent.
Within the next day or so, he talked to steward Frain
about retracting the letter and, on January 7, with the
help of Frain, prepared, executed, and sent a letter to the
Union retracting his request for withdrawal of his card.
Shortly after Russey, an 18-year-old high school stu-
dent, signed his card, Foreman Krepel asked him in the
garage if he had signed, and when he admitted he had,
Krepel expressed doubt whether he was doing the "right
thing," saying he did not know what would happen to his
job, because Russey was working for Respondent in a job
created for him by Respondent as part of a local govern-
ment job program, under which employers created jobs
for students, who received some credit in their schooling
for the time spent working; Krepel told him "if you join
the Union, I don't know whether they will discontinue
your job or not," and suggested that he talk to his father
about it, although he could do as he wished about joining
the Union. About a week later Thomas MacNamara
asked Russey if he had filled out the "form," referring to
a letter of withdrawal of his application to the Union.
Russey said he had, and MacNamara asked if he would
give the Company a copy if he mailed the letter; he added
that the decision was up to him, and he should think about
it, but he should let MacNamara know his decision by the
following Thursday. On an unidentified later date, Krepel
told Russey at the garage that his job might be canceled
out if he did not send the letter, and that if he intended to
send it, he should do it that night. Russey mailed it to the
Union that night and left a copy at the White Pigeon
office.12
Respondent argues that its interrogation of the
mechanics after learning who signed cards, and when,
was not coercive because the MacNamaras were trying
"principally" and bona fide, to find out if any of them had
been pressured or misled by the Union into signing cards.
This purpose is indicated by testimony of Thomas Mac-
Namara and Don Hartsox that: Don Hartsox' was ap-
parently troubled by signing the card and tried to contact
Glenn MacNamara at home on January 3 about it, but
when he found Glenn was not there, he still unburdened
himself to his wife. Thomas MacNamara gathered from
his mother's report of Don's conversation that he had
been advised by the union men when he signed the card
that he had to sign up or would lose his job with Respond-
ent. On this information the MacNamaras decided to
question all the mechanics to learn the circumstances
under which they signed cards. If the questions had been
confined to this subject alone , and assurances against
reprisals had been given, there would be merit in Respond-
ent's contention.13 However, the questions as to the
mechanics' reasons or motives for signing the cards, and
whether they really wanted the Union to act for them,
went beyond any issue of reliability of the cards or possi-
12 The above findings are based on credited testimony of Russey, which
is not directly contradicted by Krepel or Thomas MacNamara.
13 It is well settled that an employer who has a reasonable and bona fide
doubt of the majority status of a union may conduct a poll of employees,
with certain safeguards , about the circumstances under which they signed
union authorization cards , where the intent and purpose of the interroga-
tion is only to ascertain whether the Union actually represented a majori-
ty. See Struksnes Construction Co., Inc., 165 NLRB No. 102.
G & A TRUCK LINE, INC. 851
ble fraud or duress in their execution, but probed into the
motives or sentiments of the workers about the Union.
Under settled precedents this amounted to coercive inter-
rogation, and I find that Respondent thereby violated
Section 8(a)(1) of the Act. Respondent's followup of such
interrogation of Marciniak by immediate and repeated
suggestions or requests that he make a written request for
withdrawal of his card, with advice as to how to word the
request and suggestion that he could write it on company
time, and the warning that Respondent might have to cut
his hours if the Union came into the garages (without any
explanation as to how this action might be forced on
Respondent), amounted to plain coercive threats of possi-
ble economic reprisal if Marciniak did not withdraw from
the Union, and further violated Section 8(a)(1) of the Act.
Respondent exercised similar unlawful coercion on the
elderly Don Hartsox when Glenn MacNamara asked
asked him bluntly to send a withdrawal letter, after re-
minding him that he was not a full-time or fully qualified
mechanic, which could only have led Don Hartsox to be-
lieve that his tenure was not secure and could be affected
by Respondent if he did not withdraw from the Union.
His promise to do so, and later mailing of the withdrawal
letter to the Union, can only have been motivated, at least
in part, by what Glenn MacNamara said to him. 14 Again,
Respondent imposed similar coercive pressure on the
son, Michael, both by implied threats of reprisal and
promise of benefit, when Thomas MacNamara asked him
to withdraw his card, after noting his low position on the
seniority roster, and indicating that Michael might be
given diesel tractor work (which Michael admits he
desired) if the Union did not come into the garages. This
coercion was initally effective, since Michael sent his
withdrawal letter the day after the talk with Thomas Mac-
Namara. Finally, Russey was subjected to unlawful im-
plied and direct threats by Krepel that he might lose his
job at the garage, under the workstudy program, if he
joined the Union and did not withdraw from it.15 The
widespread unlawful interrogation, and the specific un-
lawful coercive pressure put on four of the mechanics to
induce them to withdraw their union authorizations
strongly negates the claim that Respondent had any bona
fide doubt about the Union's majority status on and after
January 3, and as strongly supports the conclusion that
Respondent acted promptly after the Union's demand to
dissipate the majority status indicated by its cards.
C. The Alleged Refusal to Bargain
1. The appropriate unit
The parties agree, and I find, that all mechanics and
garage employees at Respondent's Three River and
White Pigeon terminals, excluding office clerical em-
ployees, truckdrivers, guards and supervisors as defined
in the Act constitute a unit appropriate for collective-bar-
gaining purposes within the meaning of Section 9 of the
Act, and that on January 2, 1967, the following nine em-
ployees were in the unit: Anderson, Salisbury, Speese,
Marciniak, Donald Hartsox, Michael Hartsox, Russey,
Verland Spence, and Paul Hamlin.'6
2. The demand for recognition, and Respondent's reply
I find that the Union on January 3, 1967, made a
proper demand for recognition as bargaining agent for the
employees in the unit aforesaid, and that at that time it
showed Respondent signed cards from six employees in
the unit, which gave it pro forma majority status. I also
find that Respondent on the afternoon of that day refused
to execute a formal recognition agreement with the
Union, and to bargain with it as such agent. Respondent's
main justification for that refusal is that it had a bona fide
doubt of the Union's majority status. I have already con-
sidered testimony relating to the information Respondent
received right after the Union's demand on January 3,
and its ensuing unlawful conduct, from which I have con-
cluded that it acted promptly in efforts to dissipate the
Union's plainly indicated majority status. However,
Respondent's specific justification for its refusal to recog-
nize the Union is based on what it heard from Don Hart-
sox early on the 3rd, and its ensuing discussions with An-
derson and Salisbury on that morning which it claims led
its officers to believe in good faith that these two men had
been induced to sign cards by substantial misrepresenta-
tions of union agents, and this caused both to announce to
company officials that they intended to withdraw their
authorization cards, which they did shortly after, leaving
the Union with only four cards out of a unit of nine
workers.
I have already found that Anderson and Salisbury told
Respondent on January 3 that the union agents had told
them they were the last to sign cards, that every other
mechanic had signed, so they signed on this representa-
tion, and that when management showed them facts
secured from the Union indicating this was not true, both
men angrily indicated their desire to withdraw their cards
on the premise that they had been misled by the Union.
While this discussion was initiated by Respondent's un-
lawful inquiries about the reasons why they signed cards,
it is noteworthy that when both MacNamaras expressed
regrets that they had done so without advising Respond-
ent beforehand, and Glenn MacNamara reproached
Salisbury for acting thus in response to Glenn's specific
favors to him, this elicited Anderson's explanation of the
14 That the president's remarks were bound to carry great weight with
Don Hartsox is also indicated by the fact that an undefined portion of his
income came directly from Glenn MacNamara, when he worked
frequently for him at the MacNamara farm.
Is Russey testified without contradiction that continued work was es-
sential to credit toward his high school diploma, and that he would be una-
ble to graduate if his job was canceled.
16 I do not accept Respondent's claim that Charles Krepel is an em-
ployee to be included in the unit, for while it appears that Krepel regularly
performs repair work himself at Three Rivers on day shift and at times
into the night shift, it is clear from the record that after the death in
February 1966 of Richard Modert, foreman in charge of operations at
both terminals, Krepel was offered that job, but declined, and was then in-
formally assigned to handle Modert's duties at Three Rivers, with a notice
posted from March 1966 to at least May 29, 1967, that all employees
must call Krepel at his home telephone "for mechanical needs or
direction" during the early morning hours when Three Rivers was closed;
Respondent made no arrangement, and has no practice, which requires or
permits drivers or other employees to contact other officials of Respond-
ent, such as the MacNamaras or Jones, during these hours for any pur-
pose. In this period and up to the present time, Krepel has given orders
about repairs and other work to day and night mechanics at Three Rivers,
gives orders on the telephone to drivers about disposition of breakdown
problems on the road, and also has authority effectively to recommend
discharge of employees, which he exercised once in the fall of 1966, and
also in the case of Michael Hartsox considered herein. I find that Krepel
is a supervisor within the meaning of Sec. 2(11) of the Act.
336-845 0 - 70 - 55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representations on which both had signed the
cards, and it is significant that the two apparently decided
on their own to withdraw their cards after Respondent
had only shown them the true facts gleaned from the
Union itself; there were no threats or promises by
Respondent which would indicate that they were per-
suaded by coercive actions of Respondent to withdraw
their cards, and in this respect the withdrawal of their
cards stands on a different footing from similar actions of
other workers found above. Glenn MacNamara testified
that his expression to Brand of doubt about the Union's
majority status was based on the remarks and apparent
intentions of both men to withdraw their cards. In view of
their remarks found above, I credit his testimony, and
must conclude that Respondent was entitled to rely upon
their statements about the union representations and their
own voluntary decision to renounce the Union, whether
or not those representations were made or were in fact
false. However, in support of the reasons for signing they
gave to Respondent, Anderson testified, with general cor-
roboration by Salisbury, that at their December 31 meet-
ing with Union Agents Brand, Frain, and Schneider, the
latter told them they were the "last two to be signed up,"
and that all the Three Rivers mechanics were already
signed , so they both signed cards at the request of the
agents. 'While Frain and Schneider denied that this
specific representation was made, and claimed they told
the two mechanics they were the first to sign, and that all
other mechanics had contacted them and wanted or
promised to join the Union, Brand vacillated on the exact
representations, pleading lack of memory after a lapse of
5 months since the meeting, but finally admits he and
Schneider told the mechanics that "some cards had been
signed" by workers whom the agents "had seen," and
that all others had committed themselves to sign. Since
the record shows no mechanic had actually signed up be-
fore December 31, this admission indicates that the
Union made some misrepresentation about the number
who had signed, and tends to support the mechanics'
story that they were told they were the last to sign. Since
both were former union members and thus union
minded,17 I am sure that this representation was a critical
factor in their decision to sign up and thus "go along"
with the other mechanics, for it indicated to them that the
Union already had a majority of the men signed up, which
would convince them that the Union under the law was
17 Anderson had belonged to a union in California, where he had been
a union steward , and presently held a withdrawal card from it. Salisbury
had formerly been in this Union about 9 years, and in a Chicago local of
the Teamsters for 3 years.
I have also considered carefully uncontradicted testimony of Frain that
Salisbury , before signing his card, expressed dissatisfaction with some
discipline he had received from Respondent , and indicated he wanted to
sign up to avoid being "pushed around" further , but this only shows that
Salisbury was union minded , as found above , and does not detract from
the conclusion that the efficient cause of his execution of the card was the
flat misrepresentation that the Union already had majority status.
1s I am also satisfied that the union agents knew of the former union af-
filiation of both mechanics and therefore made the misrepresentation to
induce them to sign up first, so that they could cite their example to induce
others to sign; Frain testified at one point that he told Salisbury that his
card would be the "lead card that would take care of it ," hence I am con-
vinced they considered it important to get both signed up at the outset by
whatever means.
19 Anderson 's sincerity in withdrawal is also shown by his uncon-
tradicted and credited testimony that at some later date he justified his ac-
already entitled to act as the bargaining agent for all
mechanics.18 On these facts, I find that the union agents
in fact made the statement found above, that it was a sub-
stantial and critical misrepresentation, and that both
mechanics were induced thereby to sign their cards.19 On
all these facts and circumstances, I must conclude that
the Anderson and Salisbury cards were void ab initio,
independently of any contemporaneous coercive conduct
by Respondent, and are not reliable proof toward majori-
ty status, even though they were not actually repudiated
by the signers until after the Union made its demand.211
As the Union did not in fact have a majority of the
mechanics in the unit aforesaid signed up by legitimate
means on January 3, 1967, and this lack was not caused
by action of Respondent, it follows that it was not on that
date entitled to recognition as the statutory bargaining
agent of employees in said unit, and Respondent did not
violate the Act by its refusal to recognize it as such at that
time or later. I shall recommend that complaint be
dismissed insofar as it alleges an unlawful refusal to bar-
gain in violation of Section 8(a)(5) of the Act. Cf. A. W. C.
Inc., 162 NLRB 119.
D. The Discharge of Michael Hartsox
Michael Hartsox,2i a young man in his twenties, was
first hired by Respondent to work as a general main-
tenance man at Three Rivers Terminal in July 1965. He
quit in February 1966 to work elsewhere. He was rehired
in November 1966 in the same capacity at the same
garage, working on the 5 p.m. to 3 a.m. shift with Speese
and Marciniak until his discharge on February 10, 1967.
Michael intitiated the Union's organization of the
mechanics early in December 1966, in the manner found
above, and signed an authorization card for Agent Jack
Brand at his home, along with his father, Don, on January
2, 1967. I have found that Respondent violated the Act
by unlawful interrogation of Michael in the next 2 days,
coupled with coercive threats of reprisal and promises of
benefit to induce him to withdraw his union card, which
caused him to do so at the same time as Don withdrew his
card, but that he retracted this withdrawal by letter to the
Union dated January 7. On Saturday, January 14,
Michael attended a union meeting at which he discussed
this letter with Agent Brand, following which Brand
telephoned Mr. Cavanaugh, Respondent's attorney in
tion to a union driver at a meeting by explaining his prior union affiliations
and his determination to rejoin the union movement in the future when
"there would be a union all over the country." The impact of the union
misrepresentations on the two was also far greater where they were made
by two present officials and one former officer of the Union , whose word
the mechanics would undoubtedly accept as good union men . This, plus
the fact that the misrepresentation was no mere puffing statement giving
an estimate of progress or probability of achievement of majority status,
but a flat assertion of majority status at a time when in fact the Union had
no signed cards at all, shows that the misrepresentation was flagrant, seri-
ous, and deliberately designed to induce the card signing , and thus vitiates
these cards. N.L.R.B. v. H_ Rohtstezn & Co., 266 F.2d 407 (C.A. 1).
20 In view of these facts , I conclude that cases cited by General Coun-
sel such as E. H Sargent and Co., 99 NLRB 1318; Harold W. Koehler,
dlbla Koehler's Wholesale Restaurant Supply, 139 NLRB 945; N.L.R.B.
v. Harris Epstein, d/bla Top Mode Manufacturing Co., 203 F.2d 482
(C.A. 3), enfg 97 NLRB 1273; and N.L.R.B. v. Philamon Laboratories,
Inc., 298 F.2d 176 (C.A. 2), are not apposite on the facts, hence not con-
trolling.
Si I will refer to him as "Michael ," for brevity , to distinguish him from
his father, Don Hartsox, who will be called "Don."
G & A TRUCK LINE, INC.
Detroit, and read the whole of Michael's retraction letter
to him, advising that the Union had other such letters
from mechanics, and criticizing the "tactics" he claims
were used by Respondent to procure the withdrawals of
union cards. While there is a conflict between Brand and
Schneider on the one hand and Michael on the other as to
whether Brand read his name to the attorney, Thomas
MacNamara admits that, in discussing this conversation
with the attorney, he learned that one mechanic had
retracted his letter of withdrawal of his card, and it is a
fair inference that the attorney (who did not testify) must
have reported the contents of the letter, if not giving a
verbatim account, to MacNamara, and from that wording
of the letter which mentions the mechanic's father (it ap-
pearing that the Hartsoxes were the only father-son team
in Respondent's employ as mechanics) I also infer that
MacNamara could only have gathered that the signer of
that retraction was Michael.22
On the night of January 23-24, 1967, Michael was
working on repairs of tractors in preparation for their
trips later next morning. Tractor 45 had been brought in
the night before with the notation on the driver's daily re-
port that the emergency brake was bad and the fifth wheel
was "sloppy." Michael fixed the emergency brake with
some help from Speese, while Speese checked and
cleaned the fifth wheel, and Michael then certified to
completion of the repairs in the usual manner on the
driver's daily report 23 Driver Schneider was assigned to
take tractor 45 out that morning, but when he started up
the engine he discovered from its sound that the exhaust
manifold was leaking , so he inspected it and discovered
that the manifold was cracked. As this was a safety
hazard because it might allow deadly exhaust gases to
seep into the driver's cab, Schneider refused to drive the
tractor, as was his duty both under the contract and ICC
regulations, and reported the condition to Foreman
Krepel, making a pretrip inspection report on it. Krepel
examined the engine and gave him another tractor.
When Hartsox reported for work at 5 p.m. on the 24th,
Krepel told him about the cracked manifold, and said
Hartsox could work the rest of that week, but would be
terminated Saturday, because the Company could not
stand for "this sort of stuff," that it was "against company
policy." Hartsox did not reply, but became upset and
went home without permission . He returned about 9
p.m., and krepel put him to work, repeating that he would
work until the end of the week. He worked through Satur-
day, and received his final paycheck when he reported for
work Monday night , January 30.
Respondent's defense is that Hartsox was discharged
for general unsatisfactory performance and failure to im-
prove, culminating in the serious failure to find and
remedy a safety defect in truck 45. General Counsel's
rejoinder is that Respondent "over-reacted" to a mere
"oversight" in his work, and that the drastic penalty of
discharge of a known union adherent for such cause
shows that Respondent was seizing on a minor matter,
which normally did not result in discharge of workers, as
a pretext on which to discharge Michael, and that the true
motive lay in its general antiunion feelings and particu-
22I do not credit Thomas MacNamara 's formal denial of any
knowledge of the identity of the signer of this letter.
23 Under the drivers' contract and regulations of the Interstate Com-
merce Commission , drivers must note on the daily record of a trip any de-
fects which have shown up on tractor and trailer, and the night mechanic
crew is required to make these repairs, with the mechanic doing that work
certifying on the report the work that was done. At this time, the three
853
larly hostility to Michael for reasserting his union ad-
herence after withdrawing it at Respondent's behest.
Although the record shows that Respondent had been
dealing with a union covering its drivers for over 25
years, and with this Union since 1964, it also appears that
Respondent indicated present antiunion feeling by (1) its
interrogation and other coercive conduct toward em-
ployees immediately after the Union's demand for recog-
nition , and (2) the circumstances that when the Union de-
manded recognition, Glenn MacNamara was so exer-
cised that, when turning it down, he even threatened to
refuse to continue operations under the existing drivers'
contract or any new one negotiated.24 This attitude plus
Respondent's particular coercive attempts to cause
Michael to rescind his union authorization impels a care-
ful scrutiny of its handling of his discharge and requires
Respondent to come forward with cogent proof that his
alleged failure to repair the truck was the true motive for
discharge, and that discharge therefor in the circum-
stances was not an unusual penalty.
In support of Respondent's action, the record clearly
shows, and Michael himself admitted, that when working
on equipment repair it was his duty, not only to repair the
specific defects written on the driver report, but also to
check over the whole tractor or trailer, or both, and cor-
rect any other defects or malfunctions which he
discovers, in order to put the whole equipment in proper
and safe running order for its next trip. While Michael did
the specified work properly on truck 45, with the help
and oversight of Speese, he clearly did not catch the leak
in the exhaust manifold, which he admitted would be
noticeable from the sound of the motor exhaust when it
was started up and driven only a short distance. The
record shows that this type of defect is readily audible to
an experienced mechanic or driver, and was quickly
noticed by both Schneider and Foreman Krepel the
morning after Michael had worked on the tractor. The
failure to correct this defect was serious because the leak
would have permitted noxious fumes to seep into the trac-
tor cab, with possible harm to the driver and obviously
the whole equipment while on the road.
General Counsel intimates that the leak probably did
not exist when the day driver brought 45 in, because it
was not listed on his daily report as a defect, and even if
it existed, it was probably not readily noticeable either to
the driver at or before the time he brought the tractor in,
or to Michael when he worked on it, because neither of
the more experienced night mechanics appeared to notice
it when Michael moved the tractor around that night.
However, General Counsel did not produce the day
driver to testify in support of his daily report, and to show
the nonexistence of the leak, although he was a member
of the Union. Further, both older mechanics testified
credibly that unusual motor noise from such a leak would
not readily be apparent to them, while they were working
some distance away in the garage on other equipment, but
it should be immediately apparent to an alert mechanic
when he drove the tractor and sat over the running motor.
I find from credible testimony of Michael and Speese that
Michael had to start up the motor and move the tractor
night mechanics at Three Rivers Terminal were rotating alternate shifts
between lubrication and general inspection, and repair work , and on the
night shift of January 23-24 Michael had the repair detail.
24 These facts appear from credited testimony of Brand and admissions
of Glenn MacNamara It also appears that Respondent was at the time
having disputes over vacation pay with the drivers , which may also have
engendered Glenn MacNamara 's general resentment of the Union.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several times that night while working on it. Foreman
Krepel, with 21 years of truck maintenance experience,
testified credibly that the exhaust manifold on trailer 45
was leaking exhaust gas because it was burned out, and
that this type of defect does not develop quickly, as dur-
ing a short drive of the tractor in or around the garage, but
comes on gradually, which supports the inference and
testimony of the other mechanics that the noise from it
should have been readily audible to Michael when he
started up the cold motor within the few hours before
Krepel and Schneider heard it. I am satisfied from this
testimony, and find, that the leak existed when Michael
began work on trailer 45, and that the unusual noise from
the leak was readily noticeable to Michael if he had been
alert, though not to the other two mechanics. While
Michael admits that noise from the leaking manifold
would be readily noticeable, he asserted that he did not
notice any unusual sound when he ran the motor, but this
testimony is weakened by his admission that, after mak-
ing the specific repairs listed on the driver's report, he
made only a casual inspection of the tractor, limited to
lights and tires, but did not lift the engine hood and in-
spect the engine itself. As the exhaust manifold is con-
nected to the engine and located under the hood, and the
burnt condition of that component was readily noticeable
to the eye, it is a fair inference that a visual check of the
engine would have disclosed this condition, and the noise
from the leak would have been apparent to the mechanic
if he had the hood up and his head near the motor, while
this would not have been noticeable to mechanics work-
ing 10 feet or more away. Michael does not explain why
he did not raise the engine hood to check the motor while
shut off and while running;25 but as he admits he worked
on 45 near the end of his shift that night, it is inferable that
he may have been lax in his safety check due to fatigue or
the lateness of the hour. This inference is generally sup-
ported by Speese's uncontradicted testimony that, after
the first 2 or 3 weeks of his reemployment, Michael's
work became poor, because he began to leave repair work
unfinished, so that both Speese and Marciniak often had
to go over it, to tighten down bolts properly and do other
things left undone. All of this testimony presents cogent
proof that the manifold leak existed when Michael began
work on the tractor, and the defect was serious and so
noticeable that Michael should have caught and remedied
it in the normal course of his job, if properly and
completely performed.
Respondent's proof further tends to show that its reac-
tion to this oversight by discharge was reasonable and not
unusual , in light of Michael's past work performance.
Testimony of Krepel and Thomas MacNamara is to the
effect that: As soon as Krepel noticed and verified the de-
fect, he gave driver Schneider another truck. MacNamara
later that morning noticed Schneider's rejection of trailer
45 when checking over the drivers' reports in the usual
course, so asked Krepel about the manifold and why it
had not been repaired. Krepel replied that Michael should
25 Anyone with even slight familiarity with present day automobile en-
gines would know that operation of the fan, fan belt , and water pump on
the engine, as well as water and oil leaks , would be a vital point of casual
inspection , to see if the cooling and lubrication system was operating
properly.
have caught the defect and repaired it. MacNamara then
said Michael's poor work had been going on too long, and
told Krepel to discharge him at the end of the week, but
to let him do minor maintenance work on tires, etc., in the
meantime . MacNamara testified that Michael had long
been doing inferior work since his reemployment, without
improvement, and that this last omission was the "straw
that broke the camel's back," so he decided not to
tolerate it any longer, and discharged him. On his work
performance during his present employment, testimony
of Thomas MacNamara, Speese , and Krepel shows that:
When MacNamara rehired Michael, he told him that he
was doing so only because he had trouble finding
mechanics, and that he was giving Michael another
chance with Respondent, but he would have to improve
his work. Michael replied that he had learned much since
his prior work with Respondent, had matured a lot, and
would be a better mechanic. After he worked about 3
weeks, Speese reported to Thomas MacNamara that
Michael had started off well, but was beginning to lose in-
terest in his work, and was not completing it, so that
Speese and Marciniak had to check his work and at times
redo it, tightening bolts, etc., which delayed the work of
the night shift. MacNamara cautioned Michael about this.
When MacNamara asked Speese in December why the
night shift was slow in getting its work out, with three
men working, Speese reported that he and Marciniak
were slowed down when they had to check Michael's
work continually and at times complete it. Both Speese
and Krepel talked to Michael about getting his work out
properly and on time , and MacNamara again talked to
Michael about it early in January, suggesting that he
should ask the other mechanics for help if he had trouble
with his repair work. Despite this, Michael's work did not
improve and culminated in the incident on January 24,
which caused MacNamara to order his discharge. All of
this testimony presents a cogent picture of an employer
who, while clearly antiunion and knowing Michael was
still a union adherent, was nevertheless attempting to
bear with his deficiencies and help him to improve his
work,26 and finally discharged him only after his work did
not improve but culminated in the serious work oversight
found above which was the immediate and efficient cause
of his termination. I conclude that this proof is adequate
to rebut the prima facie case of discharge made by
General Counsel. It is well settled that known union ad-
herence and activity does not immunize an employee
from discharge for cause such as bad work, and while
Respondent may have welcomed this chance to get rid of
Michael , as an active union adherent, Respondent still
had the clear right to discharge him for cause, when
Michael did not perform his work properly; and the
evidence here strongly supports the conclusion that this
motivated the discharge, so as to balance and negate any
inference of discrimination from mere union membership
and even the agressive union hostility shown by other un-
fair labor practices. See Republic Cotton Mills, 101
NLRB 1475; Baltz Bros. Packing Co., 153 NLRB 1114,
26 This proof far overweighs pro forma general testimony of Michael
that in his second employment he was never criticized or reprimanded
about his work, nor warned he might be discharged for bad work, nor even
given suggestions about improving his performance.
G & A TRUCK LINE, INC.
1122; Fort Smith Broadcasting Company v. N.L.R.B.,
341 F.2d 874, 878 (C.A. 8).27
Considering all the circumstances pro and con, I con-
clude that while the issue is a close one on the facts,
General Counsel has not sustained the ultimate burden of
proving by a preponderance of substantial testimony in
the record as a whole that Respondent discharged
Michael I-Iartsox for his union adherence or activity. I
shall recommend dismissal of the complaint insofar as it
alleges that his discharge was unlawful.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that it be ordered to cease and de-
sist therefrom, and that it take certain affirmative action
designed to effectuate the policies of the Act. Since the
violations of Section 8(a)(1) included promises of benefits
27 General Counsel tries to impugn this cogent proof by the argument
that the proof of past unsatisfactory performance was vague, with no
specific instances of bad performance cited. While testimony of this type
is often a suspicious circumstance , it is not significant here. Although
Thomas MacNamara admitted that Respondent in the past has not fired
mechanics for one such mistake as charged to Michael , it is clear that
Respondent hired Michael the second time on a conditional basis, and that
it leaned over backward to try to help him improve his work, and
discharged him only when his failure to improve culminated in the failure
to repair the leaky manifold , which was far from an arbitrary or abrupt ac-
855
and threats of reprisal such as discharge or layoff, in cir-
cumstances indicating Respondent was motivated by a
desire to dissipate a claimed or suspected majority status,
I shall recommend a broad order.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and the Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. By interrogating employees regarding their union
membership, sentiments, and activities to the extent
found above, trying to persuade, and persuading, em-
ployees by promises of benefits and threats of reprisal to
withdraw their union authorization cards and applications
for membership in the above-named Union, and assisting
them to withdraw such cards in writing, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, and has thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
of the Act.
3. Respondent has not violated the Act by its refusal
to recognize the said Union as bargaining agent of its em-
ployees in the unit found above, or by its discharge and
failure to reinstate Michael Hartsox, or by any other con-
duct alleged in the complaint, except as found above.
[Recommended Order omitted from publication.]
hon. Its lenient and reasonable attitude is also shown by Speese's
testimony that while he reported to management several times on
Michael 's deficiencies, he made allowances for his age, admitting "most
of these young fellows don't get their work out right," which required
checking by the experienced mechanics , so Speese did not "bear down"
on Michael , but tried to help him and "bring him along. " However, even
a lenient and long-suffering employer is not required to put up with bad
work indefinitely, even from a known union adherent . See Fort Smith
Broadcasting Company v. N.L R.B., supra.