Louis Page Contracting

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 629 (N.L.R.B. 1967)

LOUIS PAGE CONTRACTING 629
Louis Page d/b/a Louis Page Contracting and Local
Union No. 379, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
1-CA-5572
June 30, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 4. 1967, Trial Examiner C. W. Whit-
temore issued his Decision in the above-entitled
proceeding, finding that the Respondent, also
referred to herein as Page, had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the compllaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the
Trial Examiner's Decision and supporting briefs.
The Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegaged 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 this case, and finds
merit in certain exceptions. Accordingly. the Board
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
1. While we agree with the Trial Examiner that
Respondent did not discharge employees Reed,'
Peone, Manning. and Dooley for engaging in union
activities in violation of Section 8(a)(3). we do not
agree that their discharges Were not violative of
Section 8(a)(1). In our view, the evidence in the
record amply establishes that the above-named em-
ployees were discharged because of their protest of
a change of hours, which they believed would affect
their wages, and that they were thereby participat-
ing in a protected concerted activity within the
meaning of the Act.
The Respondent is a subcontractor in the busi-
ness of leasing trucks for the purpose of hauling dirt
from construction sites. He had seven men in his
employ and paid them an hourly wage. On Satur-
day, July 9, 1966, at 7 a.m., employees Reed,
Peone, Manning, and Dooley2 appeared at contrac-
tor Mancuso's jobsite for work, as instructed the
previous evening by Page, and immediately com-
menced work pursuant to Page's direction. At 7:20
a.m. Mancuso appeared and told employee Reed to
have the other drivers park their trucks until 8 a.m.,
since he was not paying for their services until then.
Reed refused to follow Mancuso's instruction, stat-
ing that they would leave the job rather than not get
paid for working time. The discussion continued
and Reed called the men off the job. Mancuso im-
mediately telephoned Page and explained to him
that the men had walked off because of a disagree-
ment over the starting hour.3 Page then left his of-
fice and drove to the jobsite. While in transit he met
Reed, Peone, Manning, and Dooley, who were on
their way back to Respondent' s garage. Page spoke
first and told them to go back to the jobsite. Reed
and the others refused, and Page then ordered them
to return to the garage. At the garage, Page renewed
his request that the employees return to the jobsite.
When they refused again, Page told them to turn in
their keys, that they were "through."
Respondent contends that the action of these em-
ployees was not protected under the Act, and that
he lawfully discharged them for insubordination
because they refused to obey his instructions. In
this connection Respondent alleges that when he
inquired of the employees why they walked off,
they replied only that they would not work on Man-
cuso's job, and that therefore he had no choice but
to fire them. However, as noted above, the record
reveals, and Respondent concedes, that before
Page met these employees, he knew that they
walked off because of a dispute over the hour they
were to start work. Thus, when Page confronted his
employees on the road. he was aware of the incident
at the jobsite and that the employees were per-
turbed over a change of a condition of employment
which seemed unjust to them. Although it is not
clear from the record that the employees walked off
the job in concert, their refusal to resume work,
upon meeting and being asked to do so by Page, was
I The Trial Examiner found that the Respondent had five employees,
excluding Goldsborough and Reed. whom he found to be supervisors.
While we affirm the Trial Examiner's finding that Goldsborough was a su-
pervisor. we do not agree that Reed had supervisory status It is clear
from the record that, as the General Counsel contends, Reed was given
the title of assistant truck foreman , but did not perform duties which
would qualify him as a supervisor within the meaning of the Act. Thus,
Reed did not , upon getting this title, receive higher wages than his fellow
drivers, and he did not have authority , normally enjoyed by a supervisor,
to hire or fire employees , to dispatch trucks, or to exercise discretion. The
166 NLRB No. 59
tasks Reed carried out independly - checking to see that the trucks were
fueled and covered , and checking daily time slips - were either main-
tenance or clerical in nature and not supervisory. Accordingly , we find
Reed was not a supervisor and include him in the unit The unit thus was
comprised of six employees - Reed, Peone, Dooley, Brooker, Fogg, and
Manning
2 Dooley had gone to the jobsite for the ride , he had not actually been
instructed by Respondent to work that day.
3 Respondent in his brief. as well as in Page 's own testimony . admits
knowing that the dispute was over the starting hour.
308-926 0-70-41
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly a concerted activity of which Page was fully
cognizant.
On these facts there is no doubt that Respond-
ent's employees were engaging together in an
economic strike over a condition of employment,
and they were thus participating in a concerted ac-
tivity protected by Section 7 of the Act Ac-
cordingly. the Respondent was at liberty to replace
them if he could find new employees. but he could
not discharge them solely because they took part in
such a strike. It is patent that here the Respondent's
only reason for terminating the four employees was
their participation in the strike and that the Respond-
ent thereby violated Section 8(a)(1) of the Act.4
Since the Respondent unlawfully discharged the
striking employees, the strike was prolonged by that
unfair labor practice and was converted from an
economic strike to an unfair labor practice strike.
Accordingly, the strikers are entitled to reinstate-
ment regardless of whether they were replaced sub-
sequent to July 9.
2. However, even if the strike had not been con-
verted by the Respondent's unfair labor practices,
it is clear that the Respondent unlawfully refused to
reinstate the strikers upon unconditional request
made prior to their replacement. We find, contrary
to the Trial Examiner, that by this conduct, the
Respondent further violated Section 8(a)(1) of the
Act.
We have found above that on the morning of July
9 the employees engaged in an economic strike. Im-
mediately upon returning to the Respondent's
garage that morning, the strikers telephoned Mc-
Morrow, the Union's president, who had been in
the process of organizing the Respondent's em-
ployees. McMorrow sought to see Respondent
Page and found him at the Mancuso jobsite. Mc-
Morrow thereupon requested that the discharged
employees be reinstated, but Page refused to
discuss the matter and walked away. It is un-
disputed that the Respondent had not at that time
employed other drivers to replace any of the
strikers.
Under these circumstances, it is well settled that
the striking employees were entitled to reinstate-
ment to their positions. The Respondent's refusal
to allow them to return to work was therefore inde-
pendently violative of Section 8(a)(1).''
3. The Trial Examiner, having found that the
discharged employees were not terminated unlaw-
fully, concluded that the Union did not represent a
majority of the employees at any time. He held
therefore that Respondent did not violate Section
" Makela Welding, Inc , 159 NLRB 964, 968 (Fallon and Kiskila) Cf
Hilton Mobile Homes, 155 NLRB 873, 875
5 The Respondent contends that McMorrow requested only that Page
talk with him about reinstatement and negotiations and that McMorrow
did not make an unconditional request for reinstatement of the strikers
However, it is clear from the record that this request to return to work was
8(a)(5) of the Act in refusing to bargain upon de-
mand by the Union . In light of our finding that Reed
was not a supervisor and that the Respondent un-
lawfully discharged Reed , Peone , Manning, and
Dooley in violation of Section 8(a)(1) of the Act,
we must reexamine the Trial Examiner's findings as
to the 8 (a)(5) allegation.
The Union made its first demand for recognition
and bargaining 7 during the morning of July 9, 1966.
At that time Reed , Peone, and Dooley were already
union members , having joined some time before.
The General Counsel alleges that in addition
Manning and Fogg had orally authorized McMor-
row to act for them as their collective -bargaining
representative at a union meeting on July 7 at
Peone's home. Although Fogg denied at the hearing
that he had given such authority on that date, it is
not disputed that later during the morning of July 9
Fogg, Brooker , and Manning joined the dischargees
on the picket line and each signed an authorization
card which he dated July 7. Therefore, it is not clear
whether the Union represented a majority of the
Respondent ' s employees at the time McMorrow
made the initial demand for recognition on July 9,
but there is no question as to the Union 's majority
status thereafter. In these circumstances , we do not
find that the Respondent unlawfully refused to bar-
gain on July 9, although we note that the Respond-
ent never questioned the Union ' s majority status
and flatly refused to bargain without giving any
reasons.
A different situation existed on July 12 , 1966. By
that time the Union , as indicated , had been
designated by the six employees in the unit. That
day the Respondent 's counsel , the Union's attor-
ney, and McMorrow met to discuss the matter, and
the Union renewed its demand for recognition.
Respondent ' s counsel admittedly refused to discuss
the matter and replied that the Respondent could
not sign a contract at that time but that the Union
should give the Respondent a chance to grow and
the attorney was sure the Respondent would even-
tually do the right thing.
There can be no doubt as to Respondent 's obliga-
tion to bargain with the Union on July 12, 1966, un-
less a good-faith doubt existed as to the Union's
majority status . In fact , the Respondent never
questioned the Union 's majority standing . Further-
more , the Respondent 's conduct herein in discharg-
ing the strikers for exercising their statutory rights,
unlawfully refusing to reinstate the strikers upon
request , and refusing even to discuss a contract
fully demonstrates the Respondent 's complete re-
not conditioned on the granting of recognition and that the two were
separate demands
a Makela Welding, Inc , supra, 967
There is no dispute that the appropriate unit consists of all
truckdrivers employed at the Respondent's Burlington location, exclusive
of office clerical employees, professional employees, guards and all super-
visors as defined by the Act
LOUIS PAGE CONTRACTING 631
jection of the collective-bargaining principle and
established that the Respondent acted in bad faith
in refusing to recognize and deal with the Union.
Accordingly, we find that the Respondent thereby
violated Section 8(a)(5) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent set forth above
have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several
States, and constitute unfair labor practices which
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices as set forth
above, we shall order that it cease and desist
therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
Having found that the Respondent has failed to
bargain with Local 379 as representative of its em-
ployees in an appropriate unit, we shall order that
the Respondent, upon request, bargain collectively
with Local 379 concerning rates of pay, wages,
hours of employment, or other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
Having found that Respondent's employees,
since July 9, 1966, have been engaged in an unfair
labor practice strike, or in any event were unlaw-
fully denied reinstatement upon unconditional ap-
plication, we shall order that Respondent offer to
reinstate Clarence Reed, Roy Peone, Joseph
Dooley, and John Manning to their former or sub-
stantially equivalent positions , without prejudice to
their seniority or other rights and privileges,
discharging, if necessary, others hired since that
date. Further, we shall order that Respondent make
them whole for any loss of pay they may have suf-
fered as a result of this discrimination against them
by payment to them of a sum of money equal to that
which they would have earned as wages from the
date of their offer to return to work to the date of
reinstatement, less net earnings during this period,
in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with
6 percent interest thereon, such interest to be com-
puted in accordance with the formula prescribed in
Isis Plumbing and Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 379, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. At all times since July 9, 1966, Local 379 has
been and is the collective-bargaining representative
of the employees of Respondent in the unit
described as follows:
All truckdrivers employed at Respondent's
Burlington location, exclusive of all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
4. Respondent discharged employees Reed,
Peone, Manning, and Dooley on July 9, 1966, for
engaging in protected concerted activities, thereby
violating Section 8(a)(1) of the Act.
5. By reason of Respondent's said unfair labor
practices, the strike of Respondent's employees
was converted on July 9, 1966, from an economic
strike to an unfair labor practice strike.
6. Respondent's refusal to reinstate the above-
named employees, after an unconditional request
was made, violated Section 8(a)(1) of the Act.
7. By its failure on July 12, 1966, to recognize
and confer in good faith with Local 379 with
respect to wages, hours, and other terms and condi-
tions of employment, Respondent has committed
and is committing an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
9. Respondent has not violated the Act in any
respect not herein found.
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, Louis Page d/b/a Louis Page Contracting,
Burlington, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or discriminating in
regard to their hire, tenure of employment, or condi-
tions of employment, because they have engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(b) Refusing to bargain with Local 379 as collec-
tive-bargaining representative of the employees in
a unit comprised of "all truckdrivers at Respond-
ent's Burlington location, exclusive of office cleri-
cal employees, professional employees, guards and
supervisors as defined in the Act" with respect to
rates of pay, hours, and other terms and conditions
of employment.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to engage in or to refrain from engaging
in any or all of the activities specified in Section 7
of the Act, except to the extent that such right may
be affected by an agreement requiring membership
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a labor organization as a condition of employ-
ment, as authorized by Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Upon request, bargain collectively with
Local 379 as the exclusive collective-bargaining
representative of the employees in the aforesaid
unit, with respect to wages, hours, and other terms
and conditions of employment, and, if an agreement
is reached, incorporate the same in a written con-
tract.
(b) Offer to employees Reed, Peone, Dooley,
and Manning immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed.
(c) Make the above-named employees whole for
any loss of pay they may have suffered by reason of
the discrimination against them, in the manner and
in accordance with the methods referred to in the
section above entitled "The Remedy."
(d) 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.
(e) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary or useful to
determine the amount of hackpay due under the
terms of this Order.
(f) Post at its garage in Burlington, Mas-
sachusetts, copies of the attached notice marked
"Appendix."s Copies of said notice, on forms pro-
vided by the Regional Director for Region 1, after
being duly signed by the Respondent's representa-
tive, shah be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 1,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
" [n the event that this Order is enforced by a decree of a United States
Court of Appeals, the words "a Decision and Order" shall be substituted
for the words "a Decree of the United States Court of Appeals Enforcing
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 all employees that:
WE WILL, upon request, meet, and confer in
good faith with representatives of Local Union
No. 379, affiliated with International Brother-
hood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America with
respect to wages, hours, and other conditions
of employment, of our employees in the unit
described as follows:
All truckdrivers at Respondent's Burling-
ton location, exclusive of office clerical
employees, professional employees,
guards and supervisors as defined in Sec-
tion 2(11) of the Act.
WE WILL offer employees Reed, Peone,
Dooley, and Manning immediate and full rein-
statement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make the above-named employees
whole for any loss of pay they may have suf-
fered by reason of the discrimination against
them.
WE WILL NOT discharge any of our em-
ployees or discriminate in regard to their hire,
tenure of employment, or any term or condition
of employment, because they have engaged in
concerted activities for the purpose of mutual
aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
Louis PAGE D/B/A Louis
PAGE CONTRACTING
Employer
Dated By
(Representative)
(Title)
NOTE: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of America of their right to full
LOUIS PAGE CONTRACTING
reinstatement upon application in accordance with
the Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
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, 20th Floor, John F. Kennedy Federal
Building, Cambridge and New Sudbury Streets,
Boston, Massachusetts 02203, Telephone
223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
C. W. WHITTEMORE, Trial Examiner: Upon charges
duly filed by the above-named labor organization,, the
General Counsel of the National Labor Relations Board
on September 28, 1966, issued a complaint and a notice
of hearing thereon, against the above-named Respondent.
An answer was duly filed by the Respondent. The Com-
plaint alleges and the answer denies that the Respondent
has engaged in and is engaging in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) -of the National
Labor Relations Act, as amended.
Pursuant to notice, a hearing opened on October 31,
1966, before Trial Examiner George Christensen, in
Boston, Massachusetts. After receiving in evidence the
formal documents, Trial Examiner Christensen granted
General Counsel's motion for an indefinite recess in
order to obtain compliance with a subpena previously
served on an official of the Respondent.
The hearing was resumed on November 29 and 30, be-
fore me. All parties appeared at the hearing sessions,
were represented by counsel, and were afforded full op-
portunity to introduce evidence pertinent to the issues.
Oral argument was waived. Briefs from all parties have
been received and considered.
Disposition of the Respondent's motion to dismiss the
complaint, upon which ruling was reserved at the hearing,
is made by the following findings, conclusions, and
recommendations.
Upon the entire record of the proceedings, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Louis Page is an individual doing business under the
trade name and style of Louis Page Contracting. He
maintains his principal office and place of business in
Burlington, Massachusetts, where he is engaged in the
business of renting heavy-duty equipment to contractors
for the hauling of sand, gravel, fill, and related material.
During the 12-month period ending August 31, 1966,
' The original charge was filed July 20, 1966. and an amended charge
was filed August 12, 1966.
2 His testimony is indisputed to the effect that he "put" Goldsborough
633
Page performed services valued at more than $50,000 in
connection with the building of Federal projects and
federally supported projects and with the maintenance of
both intrastate interstate highways , such services having
a substantial impact upon the national defense of the
United States.
The complaint alleges, the answer admits , and it is here
found that the Respondent is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local Union No. 379, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization admitting
to membership employees of the Respondent.
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Events and Issues
As noted above, Page "rents" hauling equipment to
contractors for the purpose of moving earth. During the
period material to the chief issues raised by the com-
plaint, he employed seven individuals who drove his
trucks. Of these seven there is a dispute as to the super-
visory status of two: Goldsborough and Reed. Facts and
conclusions as to their status will be set out below.
There is no evidence in the record to show that before
early July 1966, Local Union No. 379 by any of its
agents made any effort formally to organize Page's em-
ployees, although the Employer's own testimony war-
rants the inference that before July he had reason to be-
lieve that three of his force were members of this local:
Goldsborough, Reed, and Peone.2 That such knowledge
or belief was not shared by the Union's president and
business agent, Frank McMorrow, until the last of June
or first of July is indicated by his admission that not until
after talking with Peone, at such time, did he check office
records to see if others among Page's employees were
members.
Despite his lack of contact with the employees, how-
ever, it appears from McMorrow's testimony that in mid-
June he wrote a letter to a certain contractor who was
then using some of Page's trucks and drivers, protesting
that for these drivers the Union was not receiving "pen-
sion and welfare contributions." Also according to this
union official, shortly after sending this letter he had a
telephone call from Page, who said he had been instructed
by the contractor to "look into the matter." McMorrow
further testified that he then told Page he "had been in
touch" with "some" of his employees who "were.con-
cerned" about their wages and they "had instructed" him
to "discuss with him the possibilities of signing a con-
tract." Thereupon, according to McMorrow, Page
declined to meet with him "to discuss any of these
problems."
As a witness Page flatly denied communicating with
McMorrow in June.
This incident, even if it occurred, is not urged by
General Counsel in his compalint as "refusal to bargain";
July 9 being the first date claimed for this alleged viola-
tion. In denying a motion by counsel for the Respondent
and Reed "in" the Union by advancing to it their initiation fees, and that
sometime in May or June he discussed with Peone his membership card
634 DECISIONS Of- NATIONAL LABOR RELATIONS BOARD
to strike McMorrow's testimony on the point, I permitted
it to remain "as a preliminary matter " General Counsel
did not thereafter move to amend the complaint to allege
an earlier date of refusal to bargain and neither counsel
for the Respondent nor I was, so far as the record shows,
informed of such claim until receipt of General Counsel's
brief. In that brief, for the first time, General Counsel
contends that "on or soon after June 22, 1966," McMor-
row made his "initial demand for recognition" since he
believed that the Union represented a majority of
"Respondent 's employees" and that at this time "Page
unequivocally refused to talk further with McMorrow "
These contentions, when considered along with his claim
that at the time the Union in fact did represent a majority
of the employees, certainly spell out the factors, in my
opinion , ordinarily involved in a formal allegation of un-
lawful refusal to bargain
Since no alleged refusal to bargain "on or about June
22" was fully litigated or claimed, at the hearing, clearly
I cannot appropriately make a finding upon the belated
contention . Moreover, I find nothing in McMorrow's
testimony to support General Counsel's claim that the
union president "believed" the Union represented a
majority in June, or made any "demand for recognition"
on the basis of majority status. On the contrary, McMor-
row's own testimony, as noted above, is to the effect that
he merely told Page at this time that he had "been in
touch" with "some" of the drivers.
Finally, as to this incident of the Page-McMorrow
telephone conversation, I have genuine doubt that it ac-
tually occurred. If it did, then McMorrow misrepresented
to Page facts well known to himself For other portions of
his testimony, as well as that of employees, establish that
not until July 7 was he "in touch" with "some" of them.
It was on this later occasion, according to his own
testimony, that they discussed "what could be done about
getting the wages up to the level it should be.--'
On July 7 Mc Morrow did meet with several employees
at the home of Peone it is General Counsel's contention
that at this meeting a majority of those drivers "orally"
authorized the Union to represent them and McMorrow
to seek a contract with Page
Although, for reasons stated, I make no finding as to
any refusal to bargain in June, I have described, perhaps
at unnecessary length, McMorrow's claims as to his de-
mand upon Page in that month Such claims, lacking merit
as noted, are considered relevant to determination of the
union representative's credibility as to issues raised by
the complaint
Turning to the July events in issue, and the meeting on
July 7, according to McMorrow's testimony all em-
ployees there "agreed" that he should see Page and set a
"dead-line" for him to sign a contract or they would go on
strike. He obtained no signatures to union authorization
cards on this occasion, nor is there evidence that he
sought any
Before McMorrow got around to "seeing" Page, how-
ever, at least three of the drivers, Reed. Peone, and
Manning, were fired by the Employer There is dispute as
to whether a fourth employee, Dooley, was discharged at
the same time . General Counsel's chief and final claim is
that the four individuals were terminated because they
engaged in "protected concerted activities," in simpler
terms, a strike. The Respondent contends that the
discharges were the direct and only result of the em-
ployees' refusal to obey a proper order of their employer.
The circumstances will be described below.
Not until after McMorrow was informed of the
discharges did he go to see Page. According to his
testimony he told the employer that he wanted to talk to
him about putting the men back to work and "about a
contract." Page replied, also according to McMorrow,
that as far as he was concerned the men were fired and he
had no intention of talking about a contract.
The union president later the same day returned to
Page's garage in Burlington where drivers, mcludi,ig
those who had been fired, were congregated, and for the
first time asked the three who had not signed union cards
to do so, instructing them to date such cards back to July
7. They complied
Two or three days later Page's attorney met with Mc-
Morrow at a Boston hotel According to McMorrow this
attorney told him that Page would go out of business be-
fore he would sign a contract.
In his brief General Counsel fairly accurately states
that the issues are
(a) Did Respondent discharge Dooley, Manning,
Reed, and Peone because of their union activities and/or
concerted activities?
(b) Did Respondent act in bad faith when it refused
the Union's demands for recognition at a time when the
Union represented a majority in an appropriate unit9
(c) Did Respondent refuse to reinstate Dooley,
Manning, Reed. and Peone because of their union activi-
ties and/or concerted activities?
B. The Discharge Issue
I Relevant facts
In essential respects the testimony concerning events
leading to the discharges, from Reed and Dooley as wit-
nesses for General Counsel, and from Page, is in general
agreement
On Friday night, July 8, Page telephoned Reed (who,
as a witness, admitted that he was a foreman), told him to
get in touch with employees Peone and Manning, and
directed that all three should report at 7 o'clock the next
morning at a construction site in Andover. herein referred
to as the Mancuso job.
As instructed, the three drove separate trucks to this
location. Employee Dooley, who lived at Peone's house,
accompanied this driver, as he said, "just for the ride,"
since he was not scheduled to work on Saturday. They
began work on time. Some 15 or 20 minutes later Man-
cuso, the contractor, appeared He asked Reed who had
authorized him to start at that hour Reed said Page had.
Mancuso then declared that they were not supposed to
begin before 8 o'clock, and told Reed to park the trucks
until then Reed refused He and the other two drivers left
the job and headed back to Page's garage in Burlington
Page, having been notified by Mancuso of their action,
met them on the road before they reached Burlington. Ac-
cording to Reed's own testimony. (I) Page spoke first to
him and told him to go back to the Andover site, (2) he
refused and declared, "Those drivers are not going
back", (3) Page turned to the others and told them to go
back and they refused Reed admitted that he gave Page
' There is credible evidence that Mc Morrow did meet with a single em-
ployee. Reed, whose supervisory status is in question on June 28, when
wages were discussed This discussion with one individual not some
however, was several days a/re, his claimed talk with Page
LOUIS PAGE CONTRACTING 635
no reason for their refusing to follow instructions 4 The
Employer then ordered them back to the garage with the
trucks.
At the garage, Page testified, he again asked them to
return to work and they again refused, whereupon he told
them to turn in their keys and that they were "through."
He denied that he actually fired Dooley, although ad-
mitting that this employee was with the others whom he
did discharge. Under the circumstances described by
Page himself, I cannot credit his denial. Although he may
not have spoken directly to Dooley, and by name, this
employee was in the group which, individually, had
refused to obey his order, and it is his contention that he
took the disciplinary action because of such refusal. It is
clear that Dooley believed he was fired along with the
others, and that there was substantial foundation for this
belief. There is no evidence that Page thereafter made
any effort to disabuse Dooley of his understanding. He
admitted that after Saturday he made no "attempt to con-
tact" Dooley.
At this point it is found that Dooley, in effect and in
fact, was discharged along with Reed, Manning, and
Peone on July 9, as alleged in the complaint.
2. Conclusions
The complaint alleges alternative reasons for the four
discharges: (1) union activities ("joined or assisted the
Union") or (2) engaging in a lawful strike ("engaged in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection").
It is true, as noted above, that long before the
discharges on July 9 Page knew that some of his drivers
had joined the Union, since he had paid their initiation
fees. But there is not the slightest evidence that he fired
any one of the men on this date because of such joining.
Nor is there any evidence that before the terminations
Page knew of the meeting with McMorrow at Peone's
home on July 7- the single incident which might be
called union "assistance." In his brief General Counsel
does not urge that union membership or activities in any
way precipitated the discharges. In fact, early during the
hearing he apparently had abandoned the first element of
the complaint's alternative allegations. When I suggested
that he clarify seeming confusion, counsel said, in part:
what we're trying to show here is that a strike
began on July 9th, beginning at the Andover I.R.S.
construction site. Now, while the men were on
strike, they were discharged... .
His brief explains, at greater length, what he con-
sidered he had proven. In summary, he contends that: (1)
the four men "walked off the job in protest" because
"they believed that, since their trucks would be idle (until
8 o'clock) they would not be paid, and so informed Man-
cuso"; (2) Page knew, when meeting the men after they
left the site, "why the employees walked off the job from
his previous contact by `phone with Mancuso"; and (3)
when the four "refused to return to the construction site,
they were all fired." As I read the argument it is, in sub-
stance, that the employees were engaging in protected
concerted activities both when they walked off the site
and when they refused to return to it, that the "strike"
was protected and a "labor dispute" existed because they
believed they would not be paid, and that Page fired them
well knowing why they were "striking."
General Counsel's theory is a good one. It would be
better if facts supported, and, of course, if the record con-
tained credible evidence to establish the facts.5
In the first place, General Counsel's use of the plural
"they" in ascribing subjective reasons for the "walk off,"
or as to what reason was given Mancuso, must rest on in-
ference, not direct testimony. Only two drivers were
questioned about the event: Reed and Dooley. Dooley
obviously did not "walk off." He was neither working nor
due to work that day; he merely rode along with Peone
According to his testimony, on cross-examination, he was
in the truck cab when Mancuso approached and heard
neither what this contractor said to Reed nor what Reed
replied. Reed alone testified about the exchange between
himself and Mancuso. His testimony is that he told Man-
cuso "we weren't going to park the trucks because we
wouldn't get paid for that hour, and he said if I didn't like
it, I could take the trucks and go home, and this is what I
did."
Although Peone was called by General Counsel as a
rebuttal witness, he was not questioned about the "walk
off," or his discharge. Manning was not a witness.
Thus only from Reed's testimony would it be possible
to infer why Peone and Manning left the site. There is no
evidence that they heard what he told Mancuso, that they
agreed with what he said, or that they adopted as their
own the reason Reed says he gave Mancuso for refusing
to park until 8 o'clock. Indeed, it appears reasonable to
infer, from the only relevant testimony in the record,
Reed's, that Peone and Manning actually left the job
because Reed, their foreman, led them off. Reed testified
that while he could not recall whether he said to the two,
"Come on, let's go," he said, "I didn't demand anybody.
I just left and they followed."
Reed admitted that he did not call Page before leaving
the job, although customarily he did so when problems
arose. It follows that at the time Page met Reed and the
others on the road the Employer had not been informed
by any of the drivers as to why they left the site.
It appears that General Counsel would have it found by
inference that Page knew "they" left the site because
"they" wanted pay for waiting, and that this inference is
to be founded on another inference: that Mancuso must
have told Page what Reed had given him as his reason-
not for leaving- but for refusing to park until 8 o'clock.
Courts have frowned on resting a conclusion on in-
ferences piled one upon another. They would scowl in-
deed, I believe, if I yielded to the argument here. The
only direct testimony, concerning whatever Mancuso
may have told Page, was elicited by General Counsel
himself. He asked Page:
Isn't it also true that Mr. Mancuso told you that they
4 As to this incident, Page testified that after Reed refused, he turned to
Peone, Manning, and Dooley, told them to drive the three trucks back to
Andover and Reed would ride with him After all refused, he told them to
take the trucks back to the garage.
' while perhaps of only minor significance, I note that the Union itself,
which filed both charges, in neither one claimed that the employees were
fired because they were engaging in, or even while engaging in, a strike It
alleged only that the cause was their "activities on behalf of and/or their
membership" in the Union, which is consistent with McMorrow's accusa-
tion to Page, as described below, that he had fired them because they at-
tended a union meeting with him
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walked off the job because they believed they would
not be paid for that period of waiting?
Page replied: "No."
It thus appears that General Counsel developed direct
refutation of the important inference he seeks.
In short, I consider that General Counsel has not
established, by a preponderance of credible evidence:(1)
that Reed, Peone, Manning, and Dooley were engaged in
protected concerted activities when they left the con-
struction site, or (2) that Page knew or had been given
reason to believe at the time he met them on the road that
they were "striking" to obtain pay for the "waiting" time.
As to why Reed, Manning, Peone, and Dooley refused
to take the trucks back to the construction site, Reed
testified only that after Page ordered him back he told him
"we weren't going back up to the job," and that "those
drivers aren't going back." All Dooley said about this
critical incident was that when Page asked him to take
Reed's truck back to the site, "I refused." Page himself
testified that when he ordered Reed back, "Larry told me
he wouldn't go back. He wouldn't work for that guy
[Mancuso] anymore." He was given no reason by Reed
or any other employee to believe that they refused to go
back because they were "striking" for "waiting" pay.
In his brief General Counsel concedes that "no de-
mand had been presented to Respondent" concerning pay
while trucks were idle, "immediately prior to the walk-
off." There is no evidence in the record of any precedent
for the Mancuso incident, in precise or similar detail. And
a document placed in evidence by General Counsel, pur-
portedly taken from company payrolls, shows that all but
Dooley, who was not scheduled to work, were actually
paid for a full hour's work that day.
Under the circumstances, I conclude that General
Counsel has failed to sustain his burden of proving that
the four individuals were fired because they were engag-
ing in protected concerted activities, known or believed
to be such by the Employer.
In this type of an 8(a)(3) case, as in others, it is the mo-
tive precipitating the discharge (or other discrimination in
employment) which is determinative of its unlawful
character. Where the claim is that an employee has been
fired for his union membership or activity it is not enough
to prove only that such membership or activity existed.
There must be convincing evidence that the employer
knew of or at least had good reason to believe that they
existed, in order to support the inference that unlawful
discrimination was indeed intended. Criteria are no less
exacting, I believe, in cases of alleged discrimination
because of protected concerted activities. As noted at
length above, I fail to find persuasive evidence that Page
knew, was informed by anyone, or had any real reason to
believe that the men were striking to obtain waiting time
pay, on this job or any other. I credit Page's testimony to
the effect that he was told by Reed that the men would
not go back to work for Mancuso. Only in the broadest
sense may it be found that "a labor dispute" existed, or
that the men were engaging in "concerted activities."
Speculation only leads to the conclusion that such activi-
ties were protected. The more potent facts point to a sim-
ple refusal to carry out a reasonable order.
In my opinion the credible evidence supports the
reasonable conclusion that Reed resented Mancuso's ulti-
matum, although this contractor was not his employer,
led the others off the job, told Page that none of them
would go back "to work for that guy" again, and that the
others acquiesced in this refusal. As witness Reed readily
admitted, "I took the responsibility" for leaving the job.
In summary, I conclude that, in discharging Reed,
Peone, Manning, and Dooley, the Respondent did not en-
gage in unfair labor practices violative of the Acts
C. The Refusal-to-Reinstate Issue
Relevant Facts and Conclusions
As an extension of the allegations of unlawful
discharges on July 9, the complaint also alleges that
thereafter the Respondent has refused, for the same
reasons, to reinstate Dooley, Peone, and Reed and, until
on or about July 13, refused to reinstate Manning.
Having found, contrary to General Counsel's conten-
tions, that the four discharges were not violative of the
Act, it is believed that the reinstatement issue is irrele-
vant. So far as I am aware, the Act does not require an
employer to offer or grant "reinstatement" to a
discharged employee unless his employment has been un-
lawfully terminated.
Since the Board may disagree with the discharge
findings above, it may be well to describe briefly certain
events immediately following the discharges, events
material had the employees been fired because they en-
gaged in concerted activities.
It appears that promptly upon being discharged, Peone
telephoned Union President McMorrow, who had not, so
far as the record shows, made any attempt to see Page, as
he claimed he had been authorized to do on July 7. Mc-
Morrow testified that Peone informed him that "some of
the men had been fired"- not that they were striking.
Also according to the union representative, when he got
to Page's' location the discharged drivers were there. "It
seemed," McMorrow said, "that some of the people were
instructed to report to a job in Andover that morning."
Page was not at the garage when he arrived.
Being informed that Page had probably gone to An-
dover, McMorrow proceeded to this site, and there found
him. He introduced himself, and, he testified, "told him
that it was my opinion that he had fired the men because
of a meeting with them Thursday night and that I wanted
to talk to him about putting the men back to work and talk
to him about a contract." Page replied, he further
testified, that "he had no intention of talking about a con-
tract and that as far as he was concerned the men were
fired." A few minutes later, McMorrow said, a similar
discussion, with similar results, took place in Mancuso's
presence.7
Meanwhile the discharged employees remained in the
vicinity of Page's garage in Burlington, where they were
I In view of my ultimate conclusions as to all four discharges, I have not
believed it necessary to consider, in this section, the question of Reed's
supervisory capacity and the Respondent's contention that because he
was a supervisor he was not protected by Section 8(a)(3) of the Act:
Y McMorrow also testified that when, in Mancuso's presence, he again
accused Page of firing the men because of their previous meeting with
him, Mancuso said they had driven "off the job in a big huff" after he had
told them he would not pay them until 8 o'clock. This testimony I cannot
believe. Mancuso did not pay the drivers, Page did, and both Reed and
McMorrow admitted that they were aware of the fact. Nor did Reed testi-
fy that Mancuso had said anything about pay.
LOUIS PAGE CONTRACTING 637
later joined by two other drivers, Brooker and Fogg,
neither of whom was scheduled to work that day. During
Saturday afternoon, after he had already talked with
Page, McMorrow came back to the garage, and got signa-
tures to union authorization cards, under circumstances
described in another section.
Although McMorrow testified about a meeting on
Monday, July 11, with an attorney for Page, I find
nothing in his account which might be construed as an un-
conditional offer on behalf of the "strikers" to return to
work, or as a refusal to take them back.
As a matter of fact Manning did go back on July 13, as
the complaint alleges. Page credibly testified that on
Monday, July 11, Reed came to him, said he was sorry
for what had happened, and wanted his job back. Accord-
ing to the Employer he agreed, but advised Reed to go
home and rest (together with others, Reed had stayed at
the garage for the preceding 2 days and nights) and then
come back. Reed did not return.
In his brief General Counsel appears to argue that the
four individuals were refused reinstatement both as
dischargees and as strikers. Certainly nothing in McMor-
row's testimony reveals that "as their duly authorized
collective bargaining representative" McMorrow "made
to Page an unconditional offer to return to work." His
testimony throughout is consistent with his first accusa-
tion, uttered to Page, that the men were fired for attending
a meeting with him, and such testimony, moreover, is
consistent with the Union's charge.
D. The Refusal-to-Bargain Issue
I. The appropriate unit
The complaint alleges, at the hearing the Respondent
conceded, and it is here found that a unit of the Respond-
ent's employees appropriate for the purposes of collec-
tive bargaining consists of all truckdrivers employed at
his Burlington location, exclusive of office clerical em-
ployees, professional employees, guards and all super-
visors as defined by the Act.
2. Employees in the unit
At the hearing the parties stipulated that during the
material period- from July 8 through 13, 1966- the fol-
lowing seven individuals were on the employer's payroll:
Roger Goldsborough, Clarence Reed, Roy Peone, Joseph
Dooley, John Manning, Gerald Brooker, and Lester
Fogg. The stipulation, however, does not state that these
seven were the only employees on the payroll, a point the
significance of which will be noted below.
There is no dispute, in either the record or the briefs, as
to the employee status and therefore their eligibility to be
included within the appropriate unit, of all named above
except Goldsborough and Reed. As to these two there is
disagreement.
Concerning Goldsborough, although General Counsel
stated early during the hearing that he would not concede
his supervisory status, he proceeded to introduce
evidence leading to the reasonable conclusion that this in-
dividual was, at the material time, a supervisor within the
meaning of the Act. Yet in his brief he apparently aban-
dons his own evidence and claims that Goldsborough was
not a supervisor. He adduced evidence that: (1) Golds-
borough was a truck foreman, or truck supervisor, and
had been for a year or more; (2) he received about $3.67
per hour, considerably more than others on the payroll;8
(3) although, like Reed, Goldsborough had had his union
initiation fees paid by Page in March 1966,9 he was not
present at the July 7 meeting with McMorrow; (4) he did
not participate in what General Counsel termed a
"strike" after the four drivers were discharged; (5) Reed
knew Goldsborough to be the foreman at a time, some
weeks before July, when Goldsborough and Page came
to his home to ask him to be the former's assistant; (6)
when Dooley turned his keys over to Goldsborough,
several days after his discharge, the foreman told him
they "were crazy for going on strike because Louis Page
would never sign a contract"; and (7) Goldsborough did
not tell Dooley he was "still employed by Louis Page." 10
I conclude and find that Goldsborough was a super-
visor within the meaning of the Act and should be ex-
cluded from the appropriate unit.
Also contrary to contentions of both General Counsel
and the Union, it is concluded and found that Reed was
a supervisor and should be excluded. Credible and un-
disputed testimony established that Page had employed
two foremen, Goldsborough and another, until sometime
in the spring of 1966. When the other foreman left, ac-
cording to his own testimony, Page and Goldsborough
came to Reed's home and asked him to be the "second
foreman." He agreed and his hourly rate was increased
from $2.75 to $3. Thereafter his responsibilities included
not only driving a truck (as did Goldsborough) but also:
(1) making certain that trucks were in good shape and
fueled; (2) checking daily timeslips of drivers; (3) report-
ing absences; (4) testing driver applicants before their
hire; and (5) making sure that loads on the road were
properly covered by canvas. As a witness he admitted
that one employee was fired after he had recommended
to Page that he be "laid off." And, as noted above, Reed
admitted that it had been his "responsibility" for leaving
the Andover job and that he had informed Page that
"those drivers" were not going back to it. Clearly his con-
duct on July 9 was an exercise of "independent
judgment."
Considering the nature of Page's trucking services-
operating at two or more construction sites at the same
time- I am not as perturbed by the proportion of
generals to privates as General Counsel and counsel for
the Union appear to be. This is not a factory, or a store,
where varying numbers of employees are assembled
8 The hourly rate is from a document placed in evidence by General
Counsel, purportedly compiled from company records, the accuracy of
which he did not question Page's oral testimony, to the effect that this
foreman received $3 per hour, was given without the records before him,
and without them he said he could not quote accurately.
9 According to Reed's own testimony, he accused Page on July I I of
forcing them "to join the union so he could work his trucks on union
jobs "
11 These latter incidents apparently were brought out by General Coun-
sel to show that, as a supervisory agent, Goldsborough's statements, or
lack of them, were attributable to the Respondent Earlier, during
Dooley's testimony, he seemed to accept the testimony he had adduced
through both Page and Reed as establishing that Goldsborough was in-
deed a "foreman." When he started to query Dooley about Golds-
borough's status, I asked- "Is there any question about Goldsborough
being a foreman9" and General Counsel replied "Well, if you feel it's
redundant." He then turned to remarks made by Goldsborough, immateri-
al if he still considered him as a rank-and-file employee. Counsel for the
Respondent, it appears, also considered that General Counsel was
satisfied with his own evidence and made no effort to add further proof of
Goldsborough's position as foreman
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under one roof and where one overseer can supervise
many . It seems not unreasonable that there should be a
foreman on separated jobs to serve as the employer's
representative . Indeed , in this case it is plain that Man-
cuso, contractor on the Andover job, approached Reed,
not Page, with instructions to stop work.
In short, I conclude that under the described circum-
stances Reed should not be included in the appropriate
unit.
3. Majority status and demand to bargain
As described briefly above, McMorrow met with Reed
and four employees (all but Brooker) at Peone's home on
July 7. According to this union representative , " it was a
meeting to discuss the problems of their wages and what
could be done about getting the wages up to the level it
should be." Also according to him, the employees
"unanimously " agreed that he should "return to Mr. Page
and set a deadline of which he would have to talk about
signing a contract with us or that we would go on strike."
The substance of his account of this meeting is cor-
roborated by Reed and Dooley, but employee Fogg de-
nied that he authorized McMorrow to represent him in
any way, and employee Brooker was not there.
Even if General Counsel ' s claim be found to have
merit, that oral authorization is as valid as a signed union
card , I cannot conclude that on July 7 the Union acquired
majority status. It has been found that Goldsborough and
Reed were supervisors on this date. It has also been
noted that employees Dooley and Peone had previously
signed cards. Of the remaining three employees then in
the unit Brooker did not attend the meeting, Fogg flatly
denied that he authorized McMorrow to represent him on
July 7, and Manning was not a witness . Under the cir-
cumstances of this case , especially the lack of credence
which can be accorded to portions of McMorrow's
testimony, I believe that such oral "authorization" must
be affirmed , and thus validated , by the employee himself.
As found above , McMorrow did not go to see Page, for
any reason, until after employees Dooley, Peone, and
Manning had been discharged . Their discharges having
been found not unlawful , they ceased to be in the ap-
propriate unit. The appropriate unit thus was reduced to
two: Brooker and Fogg.
Accepting McMorrow 's testimony that he told Page, in
the presence of Mancuso , "these fellows here had
authorized us to negotiate a contract for them" as a claim
of majority status , it is plain that he did not, at the time,
represent a majority - even if it be believed that Fogg had
orally given authorization 2 days earlier . Brooker had not
attended the meeting , and there is no claim that until later
in the day on Saturday was he approached by McMorrow
to sign a card.' 1
Thus, at this point, it is concluded and found that the
Union , at the time McMorrow made his demand to Page
on July 9, in fact did not enjoy majority status. It follows
that there was no unlawful refusal to bargain on that date.
As to later events, Reed and the three discharged em-
ployees remained at or near the Respondent 's garage the
balance of the day Saturday. They were joined there by
the two other employees , Fogg and Brooker , who had not
been scheduled to work that day. Brooker testified that he
came there in response to a call from Page , about 10
o'clock, to come in to work , after the others had been
fired. Fogg testified that upon returning from a personal
trip he learned from his "girl " that there was some trouble
at the garage and he went there about noon.
Around midafternoon McMorrow came to this location
and this time obtained signatures upon union authoriza-
tion cards from Fogg , Brooker , and Manning , although
the last mentioned had been discharged that morning.
Upon his instructions they all dated their signatures back
to July 7. McMorrow testified that he told them to use
that date since they had authorized the Union on that
date . Both Fogg and Brooker , however , testified that Mc-
Morrow gave such instructions as protection against their
being fired, as had been the others . I credit the em-
ployees, not McMorrow . Brooker obviously had not
"authorized" McMorrow , on July 7, since he had not at-
tended the meeting. And it is clear from McMorrow's
own testimony that at this time he considered that Reed
and the three other employees were discharged , and not
"on strike."
The next working day, Monday , July 11, the
discharged employees remained at the Respondent's lo-
cation, for the apparent purpose of protesting their
discharge and to presuade new employees , hired that day,
from taking out trucks. For 2 days Fogg joined them, but
went back to work on Wednesday, July 13, as did
Manning, who had been discharged July 9. Brooker
worked that Monday , and continued thereafter.
The Respondent hired four new employees on Mon-
day, July 11, and on Tuesday a fifth. General Counsel
makes no claim that any or all of these five employees had
authorized the Union to represent them.
It follows that : ( 1) even if the authorization cards of
Brooker and Fogg, signed on July 9, were to be con-
sidered valid , the Union clearly did not represent a
majority on July 11 or thereafter, and (2) there was no
unlawful refusal to bargain on that date or thereafter.
It will therefore be recommended that the complaint be
dismissed in its entirety.
Upon the foregoing findings of fact, I make the follow-
ing:
CONCLUSION OF LAW
The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
The complaint herein should be and hereby is
dismissed.
11 t note that there is no evidence that McMorrow at any time offered
to prove any claim of majority