G. P. Trucking Co.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 931 (N.L.R.B. 1967)

G. P. TRUCKING CO.
George Pearce, d/b/a G . P. Trucking Company
and Chauffeurs , Teamsters & Helpers,
Local 431, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen &
Helpers of America . Cases 20-CA-3996 and
20-CA-4160.
June 23,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 22, 1967, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and brief in support thereof.
The General Counsel resubmitted his brief to the
Trial Examiner as an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, George Pearce,
d/b/a G.P. Trucking Company, Mendota, California,
his agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's
Recommended Order.2
' The Respondent's exceptions to the Trial Examiner's
Decision are in large part directed to the credibility resolutions of
the Trial Examiner. We will not overrule the Trial Examiner's
findings as to credibility unless a clear preponderance of all
relevant evidence convinces us that they were incorrect. Upon the
entire record, such conclusion is not warranted here Standard
Dry Wall Products, 91 NLRB 544, enfd 188 F.2d 362 (C A 3)
2 Sec. 2(c) is hereby amended by adding the following "Copies
of said notice, on forms to be provided by the Regional Director
for Region 20, after being signed by its representative, shall be
posted 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 to insure that said notices are not altered, defaced, or
covered by any other material "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
931
MAURICE ALEXANDRE, Trial Examiner: This matter was
heard at Fresno, California, on September 20, 21, and 22,
1966, upon consolidated complaints, issued on August 10
and September 2, 1966,' alleging that the Respondent,
George Pearce, had violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. In his answer,
the Respondent denied the commission of any unfair labor
practices. The issues presented are:
1. Whether or not the Respondent, personally and
through dispatcher Delbert Williams, violated Section
8(a)(1) by unlawfully interrogating and threatening his
employees, by unlawfully interrogating the wife of one of
them, by offering increased benefits to his employees if
they did not unionize, and by preparing and soliciting his
employees' signatures on a petition disavowing the Union.
2. Whether or not the Respondent violated Section
8(a)(3) and (1) by discharging employees Floyd Sims, Carl
Reagan, and William J. Crider.
Upon the entire record,2 my observation of the
witnesses, and consideration of the briefs filed by the
General Counsel and by the Respondent following an
extension of time, I make the following:
FINDINGS AND CONCLUSIONS:'
1. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
1. The evidence
The Respondent, George Pearce, is the owner of a
trucking business in Mendota, California, and Delbert
Williams is his dispa ';i.cr Respondent stipulated, and I
find, that Williams is a supervisor.
a. Interrogation and threats by dispatcher Williams
On January 31, 1966,4 employees Sims, Reagan,
Millican, and others went to the union hall, discussed
unionization of Respondent's drivers, and signed
authorization cards. On February 1 or 2, dispatcher
Williams admittedly telephoned Phyllis Sims, the wife of
employee Sims,s and asked her whether Sims was
circulating union cards among Respondent's other drivers.
Employees Sims, Reagan, Crider, Chronister, and Millican
testified that in early February, Williams questioned them,
individually or in groups, as to whether they and others
' Based on charges filed on March 18 and July 19, 1966, by
Chauffeurs, Teamsters & Helpers, Local 431, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America
Y The General Counsel's unopposed motion to correct the
transcript is granted, and it is ordered that the said motion be, and
it hereby is, made a part of the record herein and identified as TX
Exh 1
3 No issue of commerce is presented The complaint alleges,
the Respondent stipulated to facts which establish, and I find,
that the Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of the Act. I
further find that the Charging Party, hereafter called the Union, is
a labor organization within the meaning of Sec 2(5) of the Act
" All dates hereafter mentioned refer to 1966 unless otherwise
indicated
6 Mrs. Sims is also Williams' sister
165 NLRB No. 140
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had signed union cards. Williams testified that in early
February, he. had heard that some drivers had been
soliciting union card signatures and he "just naturally
asked three of them if they had;" and that he asked "a
couple" of the drivers whether Sims and Millican had
signed cards and were soliciting other drivers' signature S.6
When asked why he made these inquiries, Williams
testified:
Well, I wanted to find out if it was or not, I have
been working there for ten years; you think somebody
that is dissatisfied with their job, and you want to do
something about it or not, wouldn't you?
Employees Reagan , Sims, and Crider further testified
that at or about the time they were questioned by
dispatcher Williams, he told them that if they wanted a
union , they could not remain around the plant and could
get out and obtain a union job ; any driver who signed a
union authorization card would not have a job; and rather
than permit the Union to organize his drivers, Respondent
would "bring in a winery union" which would request
considerably lower wages. Williams denied telling any
drivers that they would not have a job if they signed up for
the Union, and denied telling Reagan , Sims, and Crider
that they would be out of jobs or could look for other jobs if
they voted for the Union. According to Williams, all he told
them regarding union activities was that he did not want
them to threaten other drivers to adhere to the Union or to
misrepresent that he wanted them to sign union cards.
Employee Crider testified that 2 or 3 weeks later,
dispatcher Williams asked him whether he knew who had
signed union cards and whether he would try to learn and
report to him who the signers were. Employee Millican
testified that about the same time, Williams, in the
presence of other drivers, asked him why he had lied about
signing a union authorization card, named the drivers who
to his knowledge had not signed cards, and again asked
him whether he had signed a card. Williams admitted that
when he heard that despite their denials, some of the
drivers had signed authorization cards, he was annoyed at
the thought that he had been lied to, and attempted to
ascertain the truth by questioning a few of them.
b. Promises of benefit and threats by Pearce
Pearce testified that he learned of the union movement
among his drivers from dispatcher Williams in the latter
part of February; and that when he was informed by a
Board agent 2 or 3 days later that there was a sufficient
showing of interest to permit an election, he requested a
hearing, which was scheduled for March 15. Employee
Millican testified that 2 or 3 days before a series of
employee meetings conducted by Pearce on March 5,
referred to below, Pearce told him that it appeared, after
some figuring, that the drivers would have a sizable
Christmas bonus if everything went right; and that if 10 of
the drivers so requested, he could obtain the best
6 Williams testified that he had made similar inquiries on
hearing about the Union in past years
r The record suggests that it would be necessary for Pearce to
own at least one truck to retain his business license
s Williams testified that 2 days earlier, employee Garcia had
complained to him that he had been threatened by Reagan and
Sims. Garcia did not confirm the threat in his testimony.
Employee Wallace Williams, Jr., testified that approximately 3
weeks before employee Crider was fired, i e , about April 5, he
discontinued the carpool arrangement which he had had for about
2 months with Crider and three other drivers (not including
insurance policy in the State for them. Millican further
testified that Pearce asked him whether he would be
willing to drop the union idea until March 1967, at which
time the men would have another opportunity to vote;
when he informed Pearce that he had signed a union
authorization card, the latter replied, "That's your
American right"; and Pearce asked him what he would be
willing to do about the situation.
c. The parking lot incident
Employee Sims testified that early in March during a
conversation at a parking lot, Pearce, in the presence of
dispatcher Williams and employees Millican and
Babshoff, stated that if the drivers did not unionize, it
appeared that they could have a yearend bonus of $500 or
$600, but that if the Union did come in, he would sell all
but one of his trucks and use subhaulers to pull his
trailers.' Sims further testified that when he told Pearce
that the drivers wanted a hospitalization and dental plan
which the Union would obtain for them, Pearce replied
that he would buy a hospitalization plan if the men wanted
it. In describing the conversation at the parking lot, the
only subject referred to by Pearce in his testimony was
Sims' announced plan to quit his job. When asked whether
he heard Pearce say anything about a bonus during the
conversation, Williams testified as follows:
Only that he said nothing at all about bonus. He
said in the past I gave a bonus.
If it is a good year- it looks like a pretty good one,
and then he said, "I could not make no provisions. It
all depends on what we do this year. Because you
can't get it if you don't have it."
d. Further threats by dispatcher Williams
Employee Reagan testified that on or about March 5, he
admitted to dispatcher Williams that he had signed a
union card, and that Williams repeated that if he wanted a
union, he could not remain, should get a union job, and
should "park" his truck at the end of the day. Employee
Sims testified that on the same day, Williams asked him
whether he had signed a union card; he answered in the
negative but stated that he would vote for the Union; and
Williams replied that if he felt that way, he could park his
truck at that time or finish out the day. Williams denied
telling Reagan and Sims on the said occasion that they
could park their trucks or that they were fired, but
admitted that he told them "that if they didn't stop
threatening drivers and circulating cards, then, they could
park their trucks. 118 Reagan and Sims apparently
construed Williams' statements to mean that they were
discharged, but later that day Pearce informed them that
they were not discharged.
Reagan ) because they threatened to inflict damage on his house
and his car if he refused to sign a union card He further testified
that 2 days before the Board election held on March 31 , Reagan,
Crider, and a number of other drivers (not including Sims) came
to his home , threatened to whip and wreck the truck of any driver
who failed to vote for the Union, and told him that he had better
vote for the Union if he wished to avoid having his home damaged
He testified, however, that he never reported the threats to
dispatcher Williams, Pearce , or to anyone else. Reagan and
Crider denied threatening him
G. P. TRUCKING CO.
e. The employee meetings
Following work hours on the same day, March 5, Pearce
spoke to groups of drivers at two or three meetings.
According to employee Reagan, Pearce told those present
that he opposed the Union and offered to sell his tractors
and lease his trailers to the drivers. Employees Chronister
and Sims corroborated Reagan's version, and Sims added
that Pearce also stated that he would sell the trucks before
permitting unionization, and that if there was no union, it
appeared that the drivers would have a Christmas bonus.
Employee Crider corroborated the foregoing testimony
and added that Pearce also agreed to pay for insurance for
the drivers if they would hold off voting for the Union for a
year. According to employee Millican, Pearce stated that
he could make just as much money leasing out his trailers;
unionization would cause him to "park" his trucks; he
desired the drivers to hold off voting for the Union until
March 1967, at which time they would have another
chance to vote; as his equipment was paid off, the drivers
would receive better bonuses and wages; if the drivers
agreed, he would sell his tractors and lease his trailers to
them; and if all went well, it appeared that the drivers
would receive bonuses ranging from $400 to $700.
Pearce testified that he held meetings with two groups
of drivers in order to ascertain the nature of their
dissatisfaction and to try to satisfy them if possible.
According to Pearce, he told the drivers that if they were
dissatisfied with working conditions, he was prepared to
sell them a part of his business; that upon being asked
whether there would be, and the amount of, a Christmas
bonus, he replied that there might be one, but that he
could not guarantee a bonus or state the amount.
f. The antiunion petition
On the day following the meetings, March 6, Pearce
prepared a petition reading as follows:9
I am now and have been since January 1, 1966
employed as a truck driver by G. P. Trucking Co. and
or George Pearce Trucking Co. and do here by state,
regardless of any statement written or otherwise that I
have made in the past, do not want the Teamsters
Union or any other Union to bargain with my employer
for me, or to represent me in any way what so ever.
Nor do I want to vote on this matter again before
March 15, 1967 and only then if I so request it.
Pearce testified that several drivers had asked him
whether there was any way to keep from voting in the
union election; he replied that he did not know, but if they
wished to sign a petition , he would present it at a
"meeting" with the Board-scheduled for March 15; and he
prepared the petition at their request. The petition was
presented to the drivers at the premises of Spreckles
Sugar Co. in Mendota by dispatcher Williams, who
requested each of the drivers to read the petition and to
sign it if he wished. Pearce testified that he told some of
the drivers that there would be no reprisals irrespective of
whether they signed the petition. Virtually all of them
did,10 and 85 to 95 percent signed in the presence of
Pearce. Pearce later presented the petition to a Board
e Although the petition is dated February 6, the parties
stipulated that it should have been dated March 6
10 Reagan refused to sign the petition Sims signed the petition,
but later scratched out his signature.
" I make no finding of unfair labor practices based on the
933
agent who refused to accept it. Pearce thereupon
withdrew his request for a preelection hearing, and an
election was held on March 31.
g. Further promises of benefit and threats by Pearce
Employee Reagan testified that later that day, Pearce
asked him whether he would like to have a $600 Christmas
bonus conditioned upon dropping the Union until March
1967, stated that Reagan could not depend upon the other
drivers, and urged him not to think about anyone except
himself and his family.
Employee Chronister testified that a week or two before
the election held March 31, Pearce told him: "We're still
going to have an election. If you want the Union, go hunt
yourself a job, and if you don't, go on and work here."
Pearce denied making these statements.
Employee Millican testified that a few days before the
election, Pearce told several drivers (the Cantrell brothers
and Houston) that if they desired group insurance, he
would pay for it after July 1. Pearce testified that his
employees had frequently asked him about insurance in
the past but could never agree upon a plan; that when the
Cantrells and Houston asked him to investigate possible
plans in March prior to the election, he obtained a
pamphlet setting forth the California Trucking Association
plan and left it at Mendota for the drivers to read.
2. Analysis and conclusions
I find that Respondent interfered with, restrained, and
coerced his employees in violation of Section 8(a)(1) by the
following conduct: (1) Williams' interrogation of Sims' wife
regarding Sims' union activities; (2) his interrogation of
and threats to discharge a number of drivers in connection
with their union activities; (3) Pearce's offer to Millican of
a Christmas bonus for the drivers if they postponed
unionization for a year; (4) Pearce's offer (during the
parking lot conversation early in March; i.e., after he had
admittedly learned of the filing of a petition for a Board
election) to give the drivers a large Christmas bonus and
pay for hospitalization insurance if they did not unionize,
and his concurrent threat to sell his trucks and use
subhaulers for his trailers if they did unionize; (5) Pearce's
offer, during the March 5 meetings, of various certain,
probable, or possible benefits, such as increased wages, a
large Christmas bonus, and paid insurance, if the drivers
would postpone unionization for a year, and his threat to
sell his trucks if the Union were voted in; (6) Pearce's
preparation of the March 6 petition disawoving the Union
and Williams' solicitation of employee signatures thereon
in Pearce's presence; (7) Pearce's attempt on March 6 to
induce Reagan to abandon the Union for a year by offering
a large Christmas bonus; (8) Pearce's subsequent threat to
discharge Chronister if he wanted a union; and
(9) Pearce's offer, shortly before the election, to pay for
group insurance after July 1. 11
Williams admitted the interrogation of Sims' wife and a
number of drivers. He did not deny stating that
Respondent would bring in a winery union rather than
permit the Union to organize the plant. It is admitted that
testimony relating to the threat to bring in a winery union, or on
Crider's testimony relating to Williams' request that he act as an
informer , since such unfair labor practices were not expressly
alleged in the complaint , and the General Counsel has made no
assertion that these matters were fully litigated at the hearing.
299-352 0-70-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pearce prepared the petition disavowing the Union and
that Williams solicited employee signatures thereon in
Pearce's presence. And Williams admitted threatening
Reagan and Sims with discharge on March 5 if they did not
stop circulating union cards.12 Although he denied
threatening other drivers, his denial was general and
nonspecific. Since the testimony of the threatened drivers
was detailed, and since the threats which they described
are consistent with the pattern of the admitted conduct, I
credit such testimony.
For similar reasons, I reject Pearce's general and
nonspecific denials, and I credit Sims' testimony that
during the parking lot conversation in early March, Pearce
offered a large Christmas bonus and paid insurance if the
drivers did not unionize, and threatened to sell his trucks
and use subhaulers if they did. In this connection, I note
that Pearce referred only to other matters when he
described his conversation with Sims, and that Williams
admitted Pearce's mention of a possible bonus.
I also reject Pearce's denial, and credit the testimony of
Reagan, Chronister, Sims, Crider, and Millican, that
during the employee meetings of March 5, Pearce offered
increased benefits in return for the drivers' rejection of the
Union for a year, and threatened to sell his trucks if the
plant was unionized. I accord greater weight to Millican's
testimony than to Pearce's denial since Millican was still
employed by Respondent at the time he testified, a fact
which suggests that he did not lightly furnish testimony
unfavorable to Respondent. In addition, Pearce admitted
that during the meetings, which took place after he had
been notified that a petition for a Board election had been
filed, he stated that he might give the drivers a Christmas
bonus and that he was prepared to sell them a part of his
business if they were dissatisfied with their jobs.
Moreover, in explaining his interrogation of drivers,
Williams similarly admitted that he wished to do
something about the drivers' dissatisfaction with their
jobs. In the context of the interrogation of and threats to
employees, it is reasonable to believe that such admitted
desire to remedy employee satisfaction took the form of
offers of increased benefits to induce abandonment of the
Union. Finally, in the context of the foregoing conduct, I
credit the testimony of Reagan, Chronister, and Millican
regarding Pearce's offers of benefits immediately after the
meetings of March 6 and a few days before the election on
March 31, and his threat a week or two before the election.
Respondent's brief does not seriously controvert the
above conduct, but rather seeks to justify it. Contrary to
Respondent's contention , in view of the widespread nature
of the interrogation, the offers of benefits and threats of
reprisals in relation to unionization of the drivers, the
interrogation can hardly be regarded as insignificant and
noncoercive, as an exercise of free speech, or as an
innocuous attempt to ascertain the employees' grievances
and reasons for desiring to unionize . In my opinion, such
interrogation far exceeded the permissible limits
described in such cases as Blue Flash Express, Inc., 109
12 I do not credit Williams' testimony that he simultaneously
referred to their threats against other drivers His testimony that
employee Garcia complained of threats by Reagan and Sims
constituted hearsay evidence which was not confirmed by Garcia
during his testimony. The only driver who testified to threats,
Wallace Williams, Jr, did not accuse Sims of threatening him
Although he did name both Reagan and Crider, they denied
making the alleged threats Moreover, it is apparent that it was
not until about April 5, i e , a month after Williams' threat to
Reagan and Sims, that Reagan and Crider allegedly threatened
NLRB 591, cited by the Respondent, and I so find. In
addition, the claim that Williams' interrogation was
prompted by his concern over threats and
misrepresentation of his position made by employees
promoting unionization is belied by the nature of the
questions which he asked, e.g., who had signed union
cards, and by his admission that he interrogated
employees because he wished to do something for those
who were dissatisfied with their jobs.
Equally without merit is Respondent's contention that
Pearce's statements regarding a bonus and paid
hospitalization were not unlawful because they were made
in response to employee inquiries and referred only to a
possible, and not to a guaranteed, bonus. It is no less
unlawful for an employer to inform employees that
rejection of a union could result in a bonus than it is to
promise that rejection would produce a bonus. Uniform
Rental Service, Inc., 161 NLRB 187. And the fact that
employees may have initiated discussion does not justify
otherwise unlawful conduct.
Similarly, Respondent's conduct relating to the petition
disawoving the Union was not excusable even if, as
asserted, it was requested by some of the employees and
none were threatened at the time their signatures were
solicited. In the light of Respondent's other antiunion
conduct, the activities relating to the petition, whether or
not requested by any employees and irrespective of any
expressed coercion, constituted unlawful interference,
restraint , and coercion. River Togs, Inc., 160 NLRB 58.13
B. The Three Discharges
1. Floyd Sims
a. The evidence
Sims was first employed by Respondent in late 1959. At
the end of January, he signed a union authorization card
and several days later accompanied employees Reagan,
Millican, and others to the union hall. He was one of those
interrogated and threatened by dispatcher Williams early
the following month, and he refused to sign the antiunion
petition.
Pearce and Williams both testified that on March 4,
during the parking lot conversation referred to above and
in the presence of employee Millican, Sims told them that
he intended to quit and accept another job. Millican was
unable to recall that Sims said anything about quitting.
Sims testified that in January or February, he had told
Pearce that he had a promise of a year-round job and
would take it when called, but he denied that he ever
stated that he was quitting.
Pearce further testified that on the afternoon of
March 6, after signing the antiunion petition at the
Spreckles premises, Sims returned and told him he had
another job and was quitting, he told Sims to take a couple
of days to think about it; when Sims failed to reply, he told
Wallace Williams , Jr. Finally , the latter admitted that he never
mentioned the threats to anyone It follows , and I find, that
Williams had no information regarding threats by Sims and
Reagan on March 5
13 1 grant the General Counsel 's motion , made at the hearing, to
strike Pearce's testimony that he thought, and could prove, that it
was common knowledge that there would be no reprisals against
those who refused to sign the petition . Such testimony is
immaterial in view of my finding
G. P. TRUCKING CO.
Sims to remove his signature from the petition, which by
that time was at Respondent's plant; and Sims then went
to unload his truck, parked it, and never came back
again.14 Sims testified that after he signed the petition and
left the Spreckles plant, he encountered employee Reagan
who stated that he had not signed; Sims returned to the
Spreckles plant and informed Pearce that he wished to
remove his name from the petition because he wanted no
part of keeping the Union out; Pearce informed him that
the petition was at the truck yard and he could remove his
signature there; he and Pearce engaged in a heated
exchange during which he challenged Pearce to a fight;15
when Pearce refused and told him to take a couple of days
off to cool off, he agreed because he needed a couple of
days of rest; after unloading the truck, he encountered
dispatcher Williams who stated that he had been
instructed by Pearce to give Sims a couple of days off; and
Williams agreed when Sims stated that he would call him
on the following Tuesday, March 8, to ascertain when he
was to return to work.
Sims further testified that on March 8, he telephoned
Williams at the latter's home, asked when and where he
was to resume work, and was told that he would not be
needed on Wednesday and should call again Wednesday
night; when he called back as instructed, Williams stated
that he would call Sims on Thursday morning to advise
whether or not he was needed; and receiving no call, he
and his wife went to Williams' home about 8 p.m.
Thursday night, March 10, and asked whether he would be
needed the following day. On direct examination, Sims
testified that Williams answered that "he didn't think so";
and that when he replied that he would then go out of town
for a day or two, Williams advised him to "wait a few days,
and see what comes out." On cross-examination, he
testified that Williams stated that he "would probably not
go back to work anymore for C.Y. Trucking." Williams did
not contradict Sims' testimony regarding the telephone
conversations on Tuesday and Wednesday. With respect
to the Thursday visit, Williams testified that when Sims,
after stating that he had been told by Pearce to take a
couple of days off, asked when he was to return to work,
Williams replied, "Well, I don't know what George
[Pearce] said, but as far as I know, you are not going back
to work any time."
On March 10, the same day that Sims visited Williams,
Pearce sent the following letter to Sims:
On the 14th of Aug. 1965 you totally wreaked [sic]
one of my trucks. The California Highway Patrol at
the time could see no reason for the accident other
than excessive speed. Approximately a month and a
half later, I put you back to work on a trial basis, but
quite frankly, I was elated on the afternoon of March
the 6th 1966 when you told me and my dispatcher that
you were leaving our employ to go to another job,
because for what it is worth to you, I think you are
going to have more accidents in the very near future
unless you start driving closer to the legal posted
speed limits.
14 Pearce testufed that while Sims was unloading his truck, he
went to the shop and scratched off Sims' signature, which was
then still untouched , with a pencil When asked on cross-
examination whether it did not appear that Sims ' name had been
scratched off with a pen, Pearce replied, "Ballpoint pen or pencil
You can have it either way you want I could have it with pen if I
want it that way?"
15 Sims testified that he told Pearce that he had a good job,
which he did not want to lose, he was upset , and he thought a fight
935
The envelope in which the letter was mailed is postmarked
March 13, and Sims testified that he received the letter on
March 14.
Pearce testified that after Sims told him on March 6 that
he had another job, he did not expect that Sims would
return to work; "a couple of days later," he acquired
definite knowledge that Sims was working for West Side
Trucking Co.; and he never heard from Sims again after
sending the letter of March 10. Sims denied that he
worked at West Side Trucking on March 8 and that he
ever apphed for any other job while employed by the
Respondent . The record contains an application for
employment, dated March 2, which Sims filed with
Metzler Trucking Co. Sims admitted that he had written
the date on the application, but testified that he had
backdated the application. Although he admitted that he
knew that March 2 was incorrect at the time he wrote it, he
was unable to give a reason for the backdating.16
According to Sims, he did not file the application prior to
the time Pearce told him to take leave; but when he was
not recalled to work, he began looking for a job and filed
the application. However, at one point he testified that he
"could have" filed it about March 10; at another point he
testified that he went to Metzler's on the same day that he
received Pearce's letter; i.e., on March 14. He further
testified that on the same day, he also sought employment
at Rabb Brothers Trucking and at West Side Trucking.17
Sims also gave conflicting testimony as to when he
began working at West Side Trucking, testifying variously
that he could not recall the date; he began on March 10,
13, 14, or 15; he began "on a Friday or a Saturday"; "it was
on the latter part of the week"; he was called by West Side
Trucking in the afternoon; and he began work that same
afternoon. He further testified that 2 or 3 days after he
began working at West Side Trucking, he "filled out the
papers for the job" but backdated them to his starting
date; and that he wrote the date June 14 which appeared
on an employee's withholding exemption certificate which
he furnished to West Side Trucking at the time he began
working there, but had postdated the form. Finally, he
testified that he does not consider dates to be important,
and that he sometimes backdates papers or uses two
different dates on the same day. His wife testified that he
has a poor memory for dates.
b. Analysis and conclusions
The General Counsel contends that Sims was unlawfully
discharged on March 6. Respondent insists that Sims
resigned from his job. I find that Sims was unlawfully
discharged on March 8.
Based on Sims' cavalier attitude towards dates, his
inability to explain why he knowingly backdated the
Metzler application, and his evasive and conflicting
testimony as to when he began working at West Side
Trucking, I find that he was not a reliable witness.
Accordingly, I do not credit his testimony that he filed the
Metzler application after he stopped working for
would help hun let off some steam and calm his nerves
IS Sims testified that he was working for Pearce on March 2,
and that several times a day while hauling the beets, he passed
within 200 yards of Metzler's Cafe, which adjoined Metzler's
trucking office
1' Sims' wife, Phyllis, testified that she was told by her husband
that he had sought employment at Rabb 's, Metzler 's, and West
Side Trucking on the Friday following March 6; i.e , on March 11
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, and find that he filed it oal March 2. At the
same time, I do not credit the testimony, of Pearce and
Williams that Sims told them on March 4 and 6 that he had
another job and was quitting. There is nothing to show that
he received any job offers bn or before March 6. Moreover,
such testimony is inconsistent with, and negated by, Sims'
three attempts on March 8, 9, and 10 to obtain Williams'
authorization to return to work, and by Williams'
responses on these occasions. If Sims had quit for another
job, it is unlikely that he would have sought for 3 days to
return to work for the Respondent; and it is even more
unlikely that when Sims called him, Williams would have
made no reference to a resignation, would twice tell him to
call back, and would finally state that Sims would not be
returned to work. Accordingly, despite his unreliability as
to other matters, I credit Sims' denial of Pearce's and
Williams' testimony, and find that he did not tell either
Pearce or Williams that he was quitting.
For somewhat similar reasons, I do not credit Pearce's
testimony that he acquired definite information on or
about March 8 that Sims was working at West Side
Trucking, and find that Sims applied for a job and began
working at West Side Trucking on March 11 or 12. It is not
unreasonable to believe that after being without work
since March 6, and after learning on March 10 that he
could not return to Respondent's employ, Sims would
promptly look for another job. In addition, although he
gave conflicting testimony as to the date he began working
at West Side, he testified that he began at the end of the
week on Friday or Saturday. I take official notice that
March 11 and 12, respectively, fell on a Friday and
Saturday.
Since Sims did not tell Pearce or Williams that he had
quit, and in view of Williams' conduct on March 8 and 9,
and his statement to Sims on the night of March 10, I am
constrained to find that on March 8, the March 6 layoff of
Sims18 was converted into a discharge, and that the letter
of March 10 was a pretext used by Pearce to make the
discharge appear to have been a resignation. This view is
buttressed by the very fact that the letter was sent, since it
was an unnecessary, and indeed somewhat unusual,
communication to an employee who had quit. In the
absence of an explanation for the discharge of Sims, a
union advocate who refused dispatcher Williams' request
to sign the antiunion petition, and considering
Respondent's violations of Section 8(a)(1), I find that the
discharge was motivated by antiunion considerations and
thus violated Section 8(a)(3) and (1) of the Act.
2. Carl Reagan
a. The evidence
Reagan worked for Respondent from July to December
1963 and again from July 1964 to March 10.19 On
January 31, he accompanied Sims, Millican, and other
employees to the union hall where he signed an
authorization card. As noted above, he was one of the
employees interrogated and threatened by Williams in
early February regarding adherence to the Union. At that
time, Reagan denied signing a card, but on further
interrogation by Williams on March 5, he admitted it and
was told by Williams that he would be fired if he did not
" I find that the 2-day layoff of Sims was caused by his heated
exchange with Pearce.
"The plant was not in operation on February 2 due to a
stop circulating cards. During one of the March 5
employee meetings referred to above, at which Pearce
offered to sell his trucks to the drivers, Reagan expressed
doubt as to whether he wished to purchase the truck
assigned to him, because he felt it was worn out. Pearce
was admittedly offended by the statement and denied that
his trucks were worn out. On the following day, March 6,
Reagan refused to sign the antiunion petition when
requested by Williams. Later that day, he heard that the
drivers had been informed that everybody had signed, and
he accordingly told Pearce that he wished to see the
petition to be sure that his signature had not been placed
on it.
Corbett Scott, an officer in the California Highway
Patrol, testified that about a year prior to the hearing, the
county had complained to his department that
Respondent' s trucks, including Reagan 's, were overloaded
and were speeding through a construction zone; sometime
in the spring , another truckdriver had complained to him
that Reagan was speeding and had passed him; and he
spoke to Pearce regarding the driving practices of several
drivers, including those of Reagan on two occasions.
During 1964 and 1965, both Pearce and Williams
cautioned Reagan a number of times about his driving
habits. During the first rain in the fall of 1965, Williams
warned Respondent's employees about driving at
excessive speed on the slippery roads. On the same day,
the trucks driven by Reagan and another employee both
"jack-knifed" and Pearce's truck was damaged. Employee
Garcia testified that on the same day, while traveling 35
miles per hour, he observed Reagan pass him. Reagan
admitted that by October or November 1965, he had
received a number of traffic citations for various offenses,
including speeding , going through a red light, and carrying
excess weight on his truck, but testified that he received
no citations after that date. Pearce testified that he knew
that Reagan had several citations on his record.
Pearce further testified that Spreckles Sugar Co.
threatened to cancel its contract with him if his drivers,
including Reagan who was mentioned specifically several
times, did not enter and leave its premises more slowly.
Employee Long, who had formerly worked for Spreckles
Sugar Co., testified that while he was in the latter's employ
in November or early December 1965, Reagan on one
occasion failed to follow his prescribed route, asked Long
why he had reported the matter to Williams, and then
stated that he could drive his truck any way he wished
because the insurance company was going to cancel him
anyway. Pearce testified that his insurance carrier had
excluded two of Respondent's employees from the policy,
one of them 2 years ago and the other in the fall of 1965,
and that in 1965, the carrier threatened to cancel his policy
unless he adhered to its instructions concerning his
drivers.
Williams testified that he spoke to Reagan several times
in 1966 concerning his speeding, but Reagan denied that
such conversations occurred after 1965. Pearce testified
that on several occasions, Jim Mueller ,20 manager of an
insurance agency, told him that he had observed improper
driving by Respondent's employees; on February 20 or 21,
he met with Mueller who informed him that he had
observed the driving habits of some of the drivers and was
putting Reagan and other drivers "on probation ," i.e.,
seasonal layoff, but resumed for the spring season about
February 20
20 Also referred to in the record as Muller
G. P. TRUCKING CO.
furnishing a warning that if the employee's driving habits
became worse, he might be excluded from the employer's
policy; the next day, Pearce informed Reagan and the
other drivers about their probationary status; and he
posted a probation list which included Reagan's name.
Reagan denied receiving such information, and Pearce
testified that he could not recall receiving any written
notice of Reagan's probation and could not locate the
probation list.21
Pearce testified that on March 8, he talked to Reagan
about speeding while entering and leaving the Spreckles
plant, but that Reagan ignored his instructions and used
excessive speed as he left the plant. Reagan testified that
Pearce never complained to him about his driving at any
time during 1966. Pearce further testified that on March 9,
he observed Reagan go through a stop sign; and that on the
same day, he instructed Williams to inform Reagan, when
he returned that evening, that he was discharged.
Williams did not carry out these instructions but instead,
at the end of the day on March 10, informed Reagan that
the truck assigned to him was to be sent to the shop for
repair of oil leaks. Although Reagan stated that the leaks
were not very bad, Williams replied that he nevertheless
wanted to send the truck to the shop, and instructed
Reagan to take leave the following day and call him.22
On March 11 and again on March 12, when Reagan
telephoned him to ask whether repair of the truck had
been completed, Williams replied that it had not yet been
sent to the shop because repairs to another truck were still
being made. On March 13, Reagan sought out Williams,
asked whether he was fired, and stated that he did not
wish to be given a "runaround." Williams answered that
he was not fired, stating: "You still got your vote with the
union when it come up for elections." Shortly thereafter,
seeing another employee drive the truck normally
assigned to him into the plant with a load of beets, Reagan
asked Williams about it, and the latter replied that he had
all the drivers he needed and did not need any drivers right
then.
On the following day, March 14, Reagan received a
letter, dated March 10 and signed by Pearce, reading as
follows:
As you know, I have warned you no less then [sic]
four or five times in the past six months about
excessive speed, over and above legal posted speed
limits. To say nothing about what excessive speed
costs in equipment wear and tear, the local police in
the communities where we operate are concerned
about your excessive speed. The California Highway
Patrol are concerned about your excessive speed. My
insurance company is more then [sic] concerned, it is
on the verge of endorseing [sic] you off of my policy
for excessive speed and they are on the verge of
cancelling my whole policy over excessive speed. So
for this reason, effective as of this date, I have no
choice but to terminate your service with my
company.
On direct examination, Pearce testified as follows:
... [Reagan] got so arrogant immediately before he
was fired that he was impossible to talk to about
anything.
21 Pearce also testified that he notified employee Crider and
other drivers of their probationary status on the day after learning
thereof from Mueller, and that this occurred after his February 20
meeting with Mueller and about "a month or so" before he
discharged Crider on April 28, 29, or 30
12 According to Pearce, Williams later told him that he feared
937
In fact, I think Mr. Reagan would still be working
there today if he hadn't taken the position
immediately before he was fired that he was going to
take over the company and run the company as he
saw fit. That was his general attitude.
On cross-examination, Pearce testified that one of the
many things which prompted his use of the word
"arrogant" was Reagan's remark, during one of the
March 5 meetings, that the truck assigned to him was
worn out. On further cross-examination, he testified as
follows:
Q. As I understand it, Mr. Reagan was fired
because he took the attitude that he was going to take
over the company as you have described it, is that
right?
A. Yes, and beyond that he was going to tear up my
truck if I didn't do something with him. He was
violating speed laws, and he was going to wreck my
equipment, and I don't like for my equipment to be
wrecked.
On April 15, Charles Chastain, casualty underwriter for
Respondent's insurance carrier, Cal-Farm Insurance Co.,
sent Pearce a letter stating that employee Wallace
Williams, Jr., was being excluded from Respondent's
policy and that employee Crider and five other drivers had
been put on probation. Chastain testified that prior to
sending the letter, he had reviewed the motor vehicle
record for Reagan and had not felt it necessary to place
him on probation.23
On April 21, Chastain informed Pearce by letter that
Reagan and Crider were being excluded from the policy.
Pearce testified that on April 28 or 29, in response to a
telephone call, he went to Mueller's office where, at
Mueller's request, he signed endorsements excluding
Reagan and Crider from his policy. At another point,
Pearce testified that Mueller was not present when he
signed the endorsements. When asked whether he
disclosed that Reagan was no longer in his employ at the
time he was requested to sign the endorsement, Pearce
testified as follows:
No, I didn't. I never said that this has anything to do
with the reason I fired Mr. Reagan.
I had never said that Mr. Reagan was fired because
of this endorsement. I don't say so now.
After refreshing his recollection by examining his
handwritten notes placed upon his office copy of the letter
of April 15, Chastain testified that he received a telephone
call on April 21 from Mueller, that Mueller told him that
Pearce was then in his office, that he received the
impression from Mueller that Pearce had advised
exclusion of Reagan and Crider from the policy, but that
he did not know when Pearce had so advised. Chastain
testified that the citations on Reagan's motor vehicle
record had a "bearing on [his] reason" for excluding
Reagan. He also testified that but for Mueller's call, he
would not have sent the letter of April 21 on the basis of
the information that he had. Pearce testified that he never
asked for exclusion of any employee, that he was not
present at the time of the call, and that he did not discuss
Reagan's driving with Mueller on April 21, but admitted
that on one or two occasions, he had expressed the opinion
that Reagan would "beat him up" if he told him he was fired
22 Respondent did not advise Cal-Farm each time a driver left
its employ, but merely submitted a list of the dnvers on his payroll
whenever Cal-Farm requested the list for review Accordingly,
Chastain was not aware that Reagan had been discharged.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Mueller that "it probably would be good" to place
drivers on probation. When asked whether he was in
Mueller's office on or about that date, Pearce testified that
he had been there once sometime between about
February 20 and April 28, 29, or 30, when he signed the
insurance endorsements.
b. Analysis and conclusions
I agree with the General Counsel' s contention that
Reagan was discharged on March 10 because of his union
activities.
In his discharge letter to Reagan , Pearce stated, as one
of his reasons for the discharge, that his insurance carrier
was on the verge of excluding Reagan from Respondent's
policy. It is clear , however, that Chastain, the underwriter
for Cal-Farm Insurance Co., had no intention of excluding
Reagan or even of placing him on probation prior to
April21, when he was informed by Respondent's
insurance agent, Mueller, that Pearce felt Reagan and
Crider to be unsafe drivers.
According to Pearce, Mueller had told him in February
that he was placing Reagan and Crider on probation.
However, I am of the opinion that his conversation with
Mueller took place sometime later. Pearce admitted that
he was in Mueller's office once between February 20 and
April 28, 29, or 30, and that he had once or twice expressed
his view to Mueller that it would be desirable to place
drivers on probation. In addition, Respondent's brief (p.
10) seeks to explain the April 21 telephone conversation
between Mueller and Chastain by indicating that Pearce
had told Mueller sometime before that date that Reagan
and Crider were not safe drivers, and by suggesting that
Mueller was late in transmitting such information to
Chastain. Finally, Pearce testified at one point that he
notified Reagan and other drivers of their probation on the
day after learning thereof from Mueller. At another point,
he testified that he notified Crider and other drivers of
their probation on the day after learning thereof from
Mueller, and that this took place after his February 20
meeting with Mueller and about " a month or so" before he
discharged Crider on April 28, 29, or 30. I find that Pearce
discussed both Reagan and Crider with Mueller on the
same day, that such discussion took place at the end of
March or beginning of April, that Pearce told Mueller
during their conversation that Reagan and Crider were not
safe drivers, that Mueller so informed Chastain on
April 21, and that the latter thereupon excluded Reagan
and Crider from Respondent's policy. It follows that
Pearce did not know, at the time he sent his discharge
letter of March 10 to Reagan, that Mueller intended to do
something about the insurance status of Reagan and
Crider, and hence that his reference in the letter to
Reagan's impending exclusion from his insurance policy
was a pretext. I note in this connection that the record
contains no explanation for Pearce's admitted signing of
the endorsement excluding Reagan from the policy long
after he was discharged.
In his answer, Respondent did not refer to the
imminence of Reagan's exclusion from his policy, but
alleged that "Reagan was discharged because of his rank
insubordination, refusal to obey reasonable requests of
respondent and particularly because of his traffic
24 Although Pearce later testified that Reagan was also
discharged for violating speed laws and endangering his
equipment , I accord greater probative weight to his earlier, more
spontaneous testimony that he discharged Reagan because of
violations, which ulimately resulted in respondent's
insurance carrier canceling coverage of said Carl
Reagan." Reagan's exclusion from the policy in April
admittedly played no part in his discharge the preceeding
month. As for Reagan's traffic citations, all of which were
issued prior to 1966, the evidence shows that despite his
knowledge thereof, Pearce permitted Reagan to continue
working after the season resumed on February 20. This
suggests that Respondent was not as concerned with
Reagan's driving record as his answer would imply.
In his brief, Respondent again refers to Reagan's poor
driving record, but goes on to describe him as an
intolerable threat to the driving public and to Respondent's
equipment and contract with Spreckles, and states that
Pearce's observation of Reagan going through a stop sign
on March 9 "was the straw that broke the camel's back."
However, Pearce testified that Reagan would not have
been discharged but for his arrogant attitude immediately
prior to discharge, which included his expressed doubt, at
one of the March 5 employee meetings, that he wished to
purchase the wornout truck assigned to him.24 Such
testimony fortifies my conclusion that Pearce was less
disturbed by Reagan's driving than he claims, and that
such driving did not become intolerable until unionization
of the drivers became a real possibility. The straw that
broke the camel's back appears to have been a very
slender reed.
Finally, Respondent contends in his brief (p. 2) that the
nondiscriminatory nature of the discharge is shown by two
circumstances: his failure to discharge "admitted leaders"
of the Union, such as Crider and Millican, either before or
simultaneously with Reagan's discharge; and by the fact
that although "Reagan's union activity was well known,"
Pearce did not grasp the opportunity to rid himself of
Reagan when the latter mistakenly thought that he had
been discharged by Williams just prior to one of the
March 5 employee meetings. These contentions are
without merit. Mere delay in discharging known union
adherents does not necessarily establish a lawful motive.
N.L.R.B. v. Browning etc., d/b/a Cottage Bakers, 268 F.2d
938 (C.A. 10). Moreover, the delay in discharging Reagan
and Crider is consistent with an earlier lack of knowledge
regarding the extent of their prounion views and
activities.25 The failure to discharge Millican is
insufficient to establish a lawful motive for Reagan's
discharge. Nachman Corp. v. N.L.R.B., 337 F.2d 421
(C.A. 7), where the court stated that "it is established that
a discriminatory motive, otherwise established, is not
disproved by an employer's proof that it did not weed out
all union adherents."
In view of the unlawful interrogation of, and threats to,
Reagan as well as other employees, the unlawful promises
of benefits, the admitted knowledge of his union activities,
the pretextual nature of some of the reasons asserted for
his discharge, the failure to furnish a convincing
alternative reason, the admission that one reason for the
discharge was his questioning the desirability of the offer
to sell his trucks to the drivers made by Pearce at an
employee meeting, and the timing of the discharge, I am
constrained to find that Reagan's discharge was
unlawfully motivated and violated Section 8(a)(3) and (1) of
the Act.
arrogance.
25 Pearce testified that he did not know of Crider's prounion
activity until after March 31
G. P. TRUCKING CO.
3. William J. Crider
a. The evidence
Crider worked for Respondent during 1965, resigned,
was later rehired, and worked until April 27. He signed a
union authorization card in early February at the request
of employees Sims and Millican, spoke in favor of the
Union to other employees, and was one of those
interrogated and threatened by dispatcher Williams about
that time. Initially, he refused to sign the antiunion
petition of March 6, but finally signed it after a number of
others added their signatures. On the same day, following
Sims' layoff desciibed above, Pearce informed Crider,
who then drove a six-cylinder truck, that he could drive
Sims' eight-cylinder truck. According to Crider, this
constituted a promotion. Crider testified that in response
to a reference by Pearce regarding the traffic violations of
other employees, he mentioned that he had two citations,
but was told by Pearce: "Jim, you done a good job. Keep
your nose clean. The truck is yours."
Crider further testified that following the March 5
employee meetings, he campaigned against the Union and
enjoyed a very cordial ielationship with Pearce;26 that a
few days later, he concluded that Pearce planned to sell
his trucks even if the plant was not unionized; and that he
then urged the drivers to vote in favor of the Union. Pearce
testified that Crider had frequently told him and
dispatcher Williams that he wanted no part of the Union,
and that Pearce did not know that Crider was participating
in union activities until after the Board election on
March 31.27
As already found, at the end of March or beginning of
April, Pearce told Insurance Agent Mueller that
Crider and Reagan were not safe drivers. On April 15,
Insurance Underwriter Chastain sent a letter
informing Pearce that Crider and several other
employees had been placed on probation. Crider
testified that he last worked on a Wednesday, which
he believed was April 26;28 and that inasmuch as his
name did not appear on the list of employees
scheduled to work on Thursday, he assumed that the
season had ended.
On April 21, Underwriter Chastain informed Pearce
that Crider and Reagan were being excluded from his
insurance policy. Pearce testified that he signed the
endorsement excluding Cridei from his insurance policy at
the same time that lie signed the endorsement for Reagan,
i.e., the day before the season ended, but was not certain
whether this occurred on April 28, 29, or 30,2" and that on
the same day, lie sent a cable to dispatcher Williams
instructing him to inform Crider that he was "discharged"
because lie had been excluded from the policy.30
Crider testified that about a week later, lie telephoned
dispatcher Williams to ask when the drivers were going
back to work and was told that lie was not returning; when
he asked for a reason, Williams replied, "Well, George
[Pearce] has a letter from the insurance company saying
to get rid of you. He has got the letter in his pocket for too
many traffic violations"; and when lie protested that he
26 Crider testified that such relationship existed for only a very
short time
2r Respondent's brief (p 3) refers to Crider as one of the
admitted union leaders
23 1 take official notice that April 26 fell on a Tuesday
21 No date appears opposite Pearce's signature on the Crider
endorsement The date opposite his signature on the Reagan
939
had only three traffic tickets, Williams replied, "George
got the letter. You have got to go to Sacramento and get it
straightened out with them, and see George about getting
your job back." Crider further testified that he then wrote
to Pearce but received no reply. Pearce testified that
Crider never talked to him after the discharge. According
to Crider, he applied for unemployment compensation
benefits, and the unemployment office felt, after
examining his official driving record, that it did not
warrant a discharge and accordingly approved payment of
benefits, but payment was stopped by Pearce. Pearce
testified that lie consideied Crider "good enough to keep"
and "Good enough to take back if the insurance company
will take him back."
b. Analysis and conclusions
Although Crider was placed on probation on April 15 by
Chastain, the record shows that lie would not have been
excluded from Respondent's insurance policy but for the
information given to Chastain by Mueller on April 21. As
already found, that information consisted of Pearce's
expression of opinion to Mueller, at the end of March or
beginning of April, that Crider and Reagan were not safe
drivers. Such expression of opinion appears very strange
when viewed against Crider's promotion by Pearce on
March 6 and Pearce's testimony that lie considered Crider
a good enough driver to retain and to take back if covered
by insurance. In these circumstances, absent a
satisfactory explanation for Pearce's complaint to Mueller
about Crider, it is reasonable to infer that the complaint
was made about the time that Pearce learned about
Crider's union activity,3' and that Pearce sought thereby
to create a justification for discharging him by arranging to
have him excluded from the insurance policy.
In its brief, Respondent attempts to place the onus for
termination of his employment status on Crider by
pointing out that lie testified, not that lie was discharged,
but that lie was told only that lie would not be rehired; lie
was advised but failed to have his traffic citation problem
straightened out; and other drivers had been restored to
their jobs after being recovered by insurance. The
difficulty with this argument is that Pearce admitted
instructing Williams to discharge Crider, and it is
undisputed that Williams told Crider lie would have to see
Pearce about "getting [his] job back."
Equally without merit is Respondent's contention that
there was no reason to instigate Crider's exclusion from
the policy and then to discharge him 1 day before the
season ended, since Respondent could have eliminated
Crider merely by failing to rehire him at the beginning of
the next season. In this connection, Respondent points out
that lie did not discharge other known union supporters,
and in fact rehired them when the new season began.
These arguments are unpersuasive. At the time Pearce
talked to Mueller about Crider, he could not anticipate
that his exclusion from the policy would be delayed so
long. And when it was finally issued, Pearce could not
assume the risk of permitting a driver to operate a truck
without insurance, and promptly cabled Williams to
endorsement is April 28
30 Pearce testified that Crider would have been able to haul
only one or two more loads if he had not been discharged the day
before the season's end and had been permitted to drive the
following day without insurance coverage
31 As noted, Pearce testified that he learned of Crider's union
activity after March 31
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge Crider. Respondent himself refers in his brief to
Crider's "forced discharge." In addition, if Crider had
been permitted to drive even for 1 day without insurance
coverage, it would have been difficult for Respondent to
rely upon the exclusion as justification for his failure to
recall Crider when the next season began. Thus, the
unlawful nature of the discharge is not disproved by the
fact that it occurred the day prior to the season's end. As
for Respondent's retention of other union adherents, a
discriminatory motive for a discharge, as already found, is
not disproved by the Employer's failure to weed out other
union adherents.
For these reasons, I find that Respondent decided to
discharge Crider because of his union activity, that his
exclusion from the policy was instigated by Respondent
and then utilized as the ostensible justification for his
discharge on or about April 29,32 and that such discharge
thereby violated Section 8(a)(3) and (1).
II. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that he cease and
desist therefrom and that he take certain affirmative
action which I find necessary to remedy and remove the
effects of the unfair labor practices and to effectuate the
policies of the Act.
Affirmatively, I shall recommend that Respondent offer
to Floyd Sims, Carl Reagan, and William J. Crider
immediate and full reinstatement to the respective
positions which they held at the time of their discharges,
or to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges,
dismissing if necessary employees hired subsequent to
such discharges. I shall further recommend that
Respondent make each of them whole for any loss of pay
suffered because of his discriminatory discharge by paying
to each a sum of money equal to that which he would have
been paid by Respondent from the date of his discharge to
the date on which Respondent offers reinstatement as
aforesaid, less his net earnings, if any, during the said
period. The loss of pay under the order recommended
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By unlawfully interrogating his employees and the
wife of one of them concerning their union activities, by
threatening to discharge them and/or to sell his trucks if
they unionized, by promising possible, probable, and
certain benefits to his employees, i.e., higher wages,
bonuses, and paid insurance, if they abandoned or
postponed unionization , and by preparing and soliciting
the signatures of his employees upon an antiunion petition,
the Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. By discharging Floyd Sims, Carl Reagan, and
William J. Crider because of their union activities, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
George Pearce, d/b/a G.P. Trucking Company, his
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees and their
families concerning their union activities, threatening to
discharge his employees and to sell his trucks if they
should unionize, promising possible, probable, or any
other benefits to employees to induce abandoment or
postponement of unionization, and preparing and soliciting
employee signatures upon antiunion petitions.
(b) Discouraging membership in any labor organization
by discriminating against any of his employees in regard to
their hire, tenure, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of any of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Floyd Sims, Carl Reagan, and William J.
Crider immediate and full reinstatement to their former or
substantially equivalent positions, and make them whole
for any loss of pay they may have suffered by reason of
Respondent's discrimination against them, in the manner
set forth in the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this
Recommended Order.
(c) Post at his office in Mendota, California, copies of
the attached notice marked "Appendix."33
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.34
32 Crider was inaccurate about the last day he worked for
Respondent Pearce was not sure whether he signed Cnder's
endorsement on April 28, 29 , or 30 However, he testified that he
signed that endorsement the same day that he signed Reagan's
endorsement, April 28 appears opposite his signature on the latter
endorsement, and Pearce instructed Williams to discharge Crider
on the same day that he signed the endorsements Accordingly, I
conclude that Crider last worked on April 28, and that Williams
carried out Pearce 's instructions by omitting Crider's name from
the list of assignments for April 29
33 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
34 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read . "Notify the
Regional Director for Region 20, in writing, within 10 days from
the date of this Order , what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 reinstate Floyd Sims, Carl Reagan, and
William J. Crider to their old jobs and pay them for all
G. P. TRUCKING CO. 941
back wages lost as a result of their unlawful
discharges.
WE WILL NOT unlawfully discharge or otherwise
discriminate against employees, or interfere with
them in any way in the exercise of their guaranteed
statutory rights.
All our employees are free to join or refrain from joining
any labor organization.
GEORGE PEARCE, D/B/A G.P.
TRUCKING COMPANY
(Employer)
Dated By
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive 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, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
(Representative) (Title) Francisco, California 94102, Telephone 556-0335.