RSR Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 30, 1976223 N.L.R.B. 470 (N.L.R.B. 1976) Copy Citation 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quemetco, Inc., a subsidiary of RSR Corporation and Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Jerald L. Moore. Cases 25-CA-6599 and 25-CA-6780 March 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 16, 1975, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel's exceptions. The General Counsel also filed a brief in support of the Adminis- trative Law Judge'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 delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. We agree with the Administrative Law Judge for the reasons set forth in his Decision that the sus- pension of Mack Dixon for I week from October 13 to 20, 1974,' during the height of the union cam- paign, was a clear warning to the other employees as to what could happen to them if they continued to support the Union, and that by this conduct the Re- spondent violated Section 8(a)(3) and (1) of the Act. 2. We find merit in the General Counsel's excep- tions to the Administrative Law Judge's finding that the Respondent did not violate Section 8(a)(1) by Shipping Manager Day's inquiry of Dixon, over a "friendly" beer in a tavern, what Dixon thought of the Union, and what the drivers thought of Day. Day is the supervisor whose duties brought him into clos- est contact with the drivers. The inquiry plainly in- vaded Dixon's Section 7 rights to support or not sup- port the Union, to keep his views to himself if he chose, and to refrain from indicating his fellow em- ployees' views. The Administrative Law Judge con- cluded that this invasion was excused by (1) the friendship theretofore existing between Day and Dix- on, (2) the beer, and (3) the tavern ambience. None ' All dates are 1974 unless otherwise noted. of these prevented Day from threatening Dixon, in the same conversation, with possible loss of employ- ment if the Union were successful in organizing the employees-a threat which we also find violates Sec- tion 8(a)(1). Nor did friendship and beer insulate Dixon from further threats to his employment from Day, nor from the eventual fulfillment of those threats by Dixon's discriminatory layoff, all of which we also find violate the Act. In the light of these facts establishing Day's and Respondent's initial, sharp, and unrelenting hostility to the Union, it is plain that friendship and beer provided no effective barrier to the interference and coercion inherent in Day's inter- rogation of Dixon. A more serious error lies in the premise that a "friendly" interrogation does not interfere with an employee's Section 7 rights. An employee is entitled to keep from his employer his views concerning unions, so that the employee may exercise a full and free choice on the point, uninfluenced by the employer's knowledge or suspicion about those views and the possible reaction toward the employee that his views may stimulate in the employer. That the interrogation may be suave, courteous, and low- keyed instead of boisterous, rude, and profane does not alter the case. It is the effort to ascertain the individual employee's sympathies by the employer, who wields economic power over that individual, which necessarily interferes with or inhibits the ex- pression by the individual of the free choice guaran- teed him by the Act. Accordingly, we find this interrogation of Dixon by Day to be a violation of Section 8(a)(1). 3. We also find merit in the General Counsel's ex- ceptions to the Administrative Law Judge's finding that the General Counsel has not proven by a pre- ponderance of the evidence that the Respondent dis- criminated against Henry S. (Bob) Jones, Jr. Jones was first hired as a truckdriver on April 18, and quit his employment on August 30 to take another job. On September 23, Tom Day, the Respondent's ship- ping and receiving manager, was notified by a regu- lar driver, Jerald Moore, that he was unable to take his scheduled trip to Kansas. Day was unable to lo- cate a replacement, so he called Jones 2 at or about 1 a.m. on September 24, informed him that he had a "hot load that had to go," and asked Jones, who was admittedly a good driver and an experienced one, if he would accompany Day on a trip to Kansas. Jones tried to bargain for a full-time job but Day told him that he did not have any openings at that time but that he would try to work something out. Jones ac- cepted the assignment. Delivery was made to the cus- 2 Day knew that Jones, having become dissatisfied with his other job. was looking for work. 223 NLRB No. 53 QUEMETCO, INC. 471 tomer in Kansas by both Day and Jones. Upon re- turning from Kansas, Jones asked Day if he would get a truck so that he could reinstall his Citizens Band radio equipment in it, to which Day replied that he would probably have a truck, and for Jones to call him the next morning. On September 26, Day asked Jones to take another trip, this time to Dallas, because the regular driver was ill. Jones did so and returned to the plant on September 29 with material which. he delivered to Muncie, Indiana, on September 30. Between Jones' trips to Kansas and to Da Day introduced Jones to driver Frentz as "a part-time. employee." Also dur- ing that same week Day told Dale Stairs, another driver, that he was going to use Jones in "a part-time position, in case one of [the other drivers] was sick ... [or] wanted a day off, [the Respondent] was going to use [Jones] in that utility position" Moore testified that Day told him that he (Day) had put Jones back to work. On or about September 26, Jones filled out an au- thorization card for the Union? Several days after the Dallas trip, driver Jerald Moore asked Day if Jones was working. Day replied that he found out that Jones and Mack Dixon were two of the main instigators in getting the union cards signed, called them obscene names, and stated that as far as Day was concerned Jones "no longer worked there." Jones called the Respondent's dispatch office several times following the Dallas trip but the Respondent did not assign him to drive. Jones was told that "it was slow," but was never told that he was. dis- charged. The Administrative Law Judge found, and we agree, that Jones was a part-time employee of the Respondent while operating the tractor-trailer to and from Kansas and Dallas. Contrary to the Adminis- trative Law Judge, however, we find that the reason assigned by the Respondent for the discharge of Jones was a pretext. Admittedly Jones was a good and experienced driver, but the uncontradicted evi- dence proves that the Respondent knew and resented that Jones, along with Mack Dixon, another discri- minatee , was one of the main instigators of the Union. His discharge came at or about the same time that the Union filed a petition for an election on Oc- tober 2. In these circumstances we do not credit the Respondent's contention that Jones' services were simply not needed to take care of emergency trips 7 The Administrative Law Judge apparently relied in part on the fact that Jones showed that he had "grave doubts about . [his] status of employment on September 25" because he "didn 't know whether he was still employed or not" and therefore did not sign a union card for Dixon on that day. However , any doubts he had about his status on the 25th were removed on the 26th when he was called by Day to take another trip for the Respondent, and consequently he executed an authorization card. following the Respondent's discovery of Jones' union activity. Accordingly, in view of the fact that the Re- spondent believed that Jones was one of the main instigators in getting the union cards signed, and the clear hostility to that activity demonstrated by the credited evidence, we find that the Respondent dis- charged Jones for his union activities. We conclude, therefore, on the basis of all the evidence in the rec- ord, that the discharge of Jones was in violation of Section 8(a)(3) and (1) of the Act. 4. We also agree with the Administrative Law Judge that, in the 3 months following the beginning of the Union's campaign in September, the Respon- dent did not discriminatorily reduce the drivers' wag- es. Contrary to the Administrative Law Judge, how- ever, we also find no merit in the allegation that the Respondent discriminatorily reduced the mileage of the "prounion" drivers Moore, Dixon, Stairs, Gib- son, and Frentz. The Administrative Law Judge based his finding on a summary of mileage data which purportedly es- tablished, inter alia, that the number of miles driven by the prounion drivers during the fourth quarter of 1974 was less than the average of all nine drivers, while on the other hand the antiunion drivers were assigned more mileage than the average. For several reasons, that analysis is too simplistic. Our analysis of these figures shows that six of the nine drivers on the payroll4 were over the average and the remaining three drivers were under that aver- age. Frentz, who was hired in September, was 149 miles under the average. Dixon, a driver who we have found was discriminatorily suspended for 1 week, and whom our Remedy and Order make whole, was 1,409 miles under the average. His mile- age may well have been up to the average but for the 1-week suspension. The only remaining driver whose mileage was under the average is Jerald Moore, who had 3,412 miles under the average. However, Moore's own testimony reveals. that at his own re- quest, for personal reasons, the Respondent did not give him long trips for a period which extended into the first week of November. Thus, for at least 5 weeks of that quarter, Moore was not assigned the Dallas run, an 1,800-mile trip. Thus, leaving aside the mileage records of Moore and Dixon for the reasons stated, the only other so-called prounion driver who drove less than the average mileage was Frentz, who drove only 149 miles less than the average. -Consider- ing the large numbers involved, that deficiency is in- significant. Furthermore, the other three "prounion" drivers all drove considerably more mileage than the average-Stairs by 1,652, Gibson by 2,502, and Bell by 2,226. 4 Lawson, Fleming, Demaree , Stairs, Gibson, and Bell. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In any event, the record shows that mileage varia- tions 3 were a common occurrence for any week, month, or even quarter. Moreover, the Respondent used a 6-month period to attain its goal of mileage equalization .6 Thus, it is apparent that the Adminis- trative Law Judge failed to consider that the Respon- dent, in order to equalize mileage for all drivers, used a 6-month period or two quarters, rather than the 3-month period relied on by the Administrative Law Judge. For all of the foregoing reasons, we find that the General Counsel has failed to establish by a prepon- derance of the evidence that the Respondent discrim- inatorily reduced the mileage of the drivers. Accord- ingly, we shall dismiss this portion of the complaint. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 4 and 5, and delete Conclusion of Law 6: "4. By discriminatorily laying off Mack Dixon on October 13, and discharging Henry S. (Bob) Jones, Jr., on September 30, thereby discouraging employ- ees in their exercise of Section 7 rights, the Respon- dent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. "5. The General Counsel has failed to prove by a preponderance of the evidence that the Respondent unlawfully promised economic benefits including the promise to make loans of money to its employees, or' that the Respondent unlawfully reduced the amount of work by reducing the average mileage of its driv- ers as alleged in the complaint, and the allegations of the complaint in those respects shall be dismissed." ORDER The Respondent, Quemetco, Inc., a subsidiary of RSR Corporation, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively threatening employees with eco- nomic reprisals or discharge for their union activities. (b) Coercively criticizing or interrogating employ- ees with respect to their union support or union ac- tivity. (c) Discouraging membership in or activities on behalf of Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by laying off, suspending, discharging, or in any like or related manner discriminating in re- gard to hire or tenure of employment or any term or condition of employment of its employees. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Mack Dixon for the loss of wages and benefits suffered by him by reason of his dis- criminatory layoff in accordance with the formula set forth in "The Remedy." (b) Offer to reinstate Henry S. (Bob) Jones, Jr., to his former position or, if that position is no longer available, to a substantially equivalent one, together with whatever seniority rights or privileges he may have had, and make him whole for any and all losses of wages and benefits resulting from his discrimina- tory discharge, in accordance with the formula set forth in "The Remedy." (c) 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 under the terms of this Order. (d) Post at its facility in Indianapolis, Indiana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 25, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifi- cally found. S The weekly mileage figures in the record show extreme variations for the first week of September 1974, before the advent of the Union, from 1,015 miles by Dixon to 2,577 miles by Stairs . Another typical example shows that Dixon drove 2,310 miles while Stairs recorded only 970 miles during the third week of November. Similar extremes for other drivers are also evident. 6The testimony of witnesses for the General Counsel establishes that one of the duties of the Respondent's dispatcher is to equalize the mileage over a 6-month period. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." QUEMETCO , INC. 473 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing , that we violated Federal law by lay- ing off and discharging employees for supporting a union, and by otherwise interfering with our employ- ees' right to join and support a union , we have been ordered to post this notice: WE WILL make whole Mack Dixon together with 6-percent interest for all losses of pay and benefits suffered by him by reason of our dis- criminatory layoff of him. WE WILL offer to Henry S . (Bob) Jones, Jr., reinstatement to his former position or, if that position no longer exists , to a substantially equivalent one, and WE WILL make him whole for any and all losses of wages and benefits suffered by him by reason of our discriminatorily dis- charging him. WE WILL NOT lay off or discharge any of you for supporting Local 135 , International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , or any other union. WE WILL NOT coercively threaten you with economic reprisals or discharge or question you about your union activities. WE WILL NOT in any other manner interfere with , restrain, or coerce you in the exercise of your rights under Section 7 of the National La- bor Relations Act. QUEMETCO , INC., A SUBSIDIARY OF RSR COR- PORATION DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN , Administrative Law Judge: This case was heard at Indianapolis, Indiana, on April 16, 17, 18, and 19, 1975.1 A charge was filed by the Union on October 15, 1974, and a complaint was issued on Novem- ber 29. On December 27, a charge was filed by Jerald L. Moore, and on January 23, 1975, the two cases were con- solidated and an additional complaint was issued on Janu- ary 23, 1975. The primary issues are whether the Company, the Respondent, (a) unlawfully interrogated and threat- ened employees during the Union's organizing drive; (b) discriminatorily discharged one active union supporter, and laid off another; (c) unlawfully promised economic 1 All dates are in 1974 unless otherwise stated. benefits to employees in the nature of loans ; (d) discrimi- nated against five employees by reducing the amount of work available to such employees ; all in violation of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act. Upon the entire record ,2 including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent , a Delaware corporation , is engaged in the manufacture , sale, and distribution of lead products in plants located in five states of the United States including the subject facility at Indianapolis , Indiana . During the past 12 months it shipped goods valued in excess of $50,000 from its Indianapolis facility directly to customers located outside the State, and in the same period received goods valued in excess of $50 ,000 at its Indianapolis facili- ty directly from customers located outside the State. The Respondent admits , and I find , that it is an employer en- gaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Business of Respondent The Respondent , Quemetco , Inc., operates a smelting and refining plant in Indianapolis , Indiana, and is a sub- sidiary of the RSR Corporation , with the RSR principal office and plant located in Dallas, Texas . Albert P. Lospi- nozo is the executive vice president of RSR , and the key home office official in dealing with the Respondent. In addition to the Indianapolis and Dallas plants , RSR oper- ates plants in Middletown , New York, Los Angeles, Cali- fornia, and Seattle, Washington. RSR and its subsidiary plants are engaged in the business of recycling scrap lead, and producing therefrom lead ingots , both in pure form and in various alloys, as well as producing oxide powders. The Indianapolis plant was acquired by RSR in Novem- ber 1972 , and has been in operation since the summer of 1973. The Indianapolis plant can produce six lead alloys, out of the total of 26 alloys that the parent corporation offers its customers. The Indianapolis plant also manufac- tures three oxide powders . The main plant in Dallas has been operating for 40 years and can produce all 26 lead alloys, but not the oxide powders produced at the India- napolis, New York, and California plants. The basic material for the manufacture of RSR's fin- 2 Errors in the transcript have been noted and corrected. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ished products is derived from used whole batteries. These batteries are crushed so that the lead may be extracted, and such lead is then recycled for sale to customers who manu- facture electrical batteries, paints, and glass. The Indianap- olis plant, unlike the Dallas and New York plants, is not equipped to crush whole batteries so as to extract the lead. The Indianapolis plant does process battery scrap which consists of plates that had been separated from the whole battery. The Dallas headquarters of RSR handles all customer contacts and sales , as well as the purchasing of used batter- ies or battery scrap. The Dallas sales department issues a weekly shipping schedule to each of the other plants, in- cluding Indianapolis , listing the customers , the items to be shipped, and the deadline for delivery. It then becomes the function of each plant to make the specified deliveries us- ing the trucks and drivers based at that plant. 2. Trucking operation Each of the RSR divisions located in the five above- named cities has its own trucking operation , whose prima- ry responsibility is the delivery of purchased manufactured products to its customers , and secondarily to pick up used batteries for delivery to its various plants for the recycling process. The delivering of the customer's order is called by the Company the direct shipment , as it is the main reason for the overall vehicle operation. The hauling of used bat- teries or battery scrap is termed by the Company the back- haul, as it is secondary to the operation of the business. This terminology results in Respondent 's drivers being dis- patched out of Indianapolis with a load of used batteries for delivery to Dallas being referred to by Respondent as backhaul, whereas the load of manufactured lead alloy picked up in Dallas by the same driver for delivery to a customer is referred to by the Respondent as the direct shipment. The Respondent's drivers refer to the initial trip as the direct shipment , and the return trip as the backhaul, regardless of what is hauled in their trailers. Since July 1974, the Indianapolis plant has been author- ized by the Dallas headquarters to employ nine drivers, and to have fleet equipment consisting of 10 leased Hertz tractors, 6 leased vans , and 8 flatbed trailers owned by RSR. The Indianapolis plant uses its own truck fleet not only for the delivery of finished products to customers and pick up of used batteries , but also for interplant shipments to the Dallas and New York facilities. For shipments to RSR's Seattle or Los Angeles plants , it uses commercial carriers . Rail services are occasionally specified by a cus- tomer, but the Company prefers to ship by its own trucks. Respondent's truckdrivers perform their duties under the direction of the shipping and receiving manager or, in his absence , under the direction of the dispatcher who assumes the duties of the department head. The shipping and re- ceiving manager reports to the plant manager . Shipping instructions are released weekly by Dallas to the Indianap- olis plant . When this weekly shipping release is received from Dallas , the shipping and receiving manager, on Fri- day, makes out a work schedule for the following week, assigning each driver to a designated run. Drivers are paid on a mileage basis, receiving 13-1/2 cents a mile for pulling loaded trailers, and 11-1/2 cents a mile for pulling empty trailers. The shipping and receiving manager keeps exten- sive records of the mileage driven by each driver. It is the Respondent's avowed policy to equalize the mileage as- signed to each driver over monthly periods, so that the income of the drivers would be equal. B. The Union Organization Campaign On or about September 24, Mack Dixon and Jerald Moore, both road drivers for the Respondent, went to the union office and secured about seven or eight union au- thorization cards from Union Agent Schmidt.3 In the next several days, Dixon visited the homes of various drivers and left cards with fellow drivers Jude Frentz, Dale Stairs, Henry S. (Bob) Jones, Jr., and Bill Bell . Frentz, Jones, and Stairs signed and returned their cards to Dixon. Moore completed his authorization card on September 29 and on September 30 Moore, together with Dixon, returned to the union office, turning the completed authorization cards over to Schmidt. On October 2, the Union filed a represen- tation petition on behalf of the Respondent's drivers. After an active campaign to defeat the Union was waged by the Respondent, an election was conducted for the drivers on December 13. The final tally of ballots was six votes cast for the Petitioner Union, four votes against, and on April 3, 1975, the Union was certified as the collective-bargaining representative of the driver employees of the Respondent at the Indianapolis plant. C. Respondent's Supervisors Roy Gelpke has been the plant manager of the Respon- dent since July 15, and was its first full-time manager. Los- pinozo had served as acting plant manager for a period of 8 months after its acquisition by RSR and, upon the hiring of Gelpke, returned to his duties as executive vice president of the parent corporation in Dallas. Susan Smith has been the personnel and safety manager since August 4, 1973. Tom Day was employed as the shipping and receiving manager on January 15, and remained as such until Octo- ber 21. It was stipulated that Gelpke, Smith, and Day were supervisors within the meaning of the Act. The complaint alleged that Richard Veers was a statuto- ry supervisor, and General Counsel elicited many pages of testimony thereon and devoted a substantial portion of his brief in support thereof. The Respondent in his brief would dispose of the issue by a footnote, and, although denying that Veers was a supervisor, stated "since Veers was not implicated by evidence in any of the allegedly unlawful conduct of Respondent, the issue need not be resolved." It is true that Veers was not named in the complaint as parti- cipating in any of the alleged independent violations of Section 8(a)(1), and no testimony was presented that he participated in any such violations, nor was any effort made by General Counsel to link him with the alleged dis- 7 At this time the Respondent 's drivers were the only RSR production employees throughout its five plants not represented by a labor union. All other plant and driver employees were organized , including the plant em- ployees at Indianapolis. QUEMETCO, INC. charge of Jones or the layoff of Mack Dixon. However, the General Counsel in section 6 of the consolidated complaint does charge the Respondent with a Section 8(a)(3) viola- tion in that: (b) The Respondent has reduced and is reducing the amount of work made available to the following employees: Dale Stairs, Mack Dixon, Jerry Gibson, Jude Frentz and Jerald L. Moore. It is therefore necessary to determine the status of Veers, as the record is clear that he played a substantial role in the matter of the amount of work made available to the five above-named drivers. Veers went to work for the Respondent on January 23, and described his job title as shipping and receiving clerk. From the time of his hire until Day's cessation of employ- ment on October 21, Veers' duties were admittedly clerical, chiefly performing paperwork for Day , and he was referred to by the drivers as "assistant dispatcher ." After Day's ter- mination , Veers was referred to as the "dispatcher" by the drivers and plant manager , and he assumed many duties of the shipping and receiving manager. For a portion of the months of December and January 1975, the Respondent employed Cedric Denny as the shipping and receiving manager , and Veers reverted to the job relationship he had had with Day. Clearly, when Day and Denny were serving as the shipping and receiving manager , Veers was a clerical employee, and was not a supervisor within the meaning of Section 2( 11) of the Act. We then examine his duties for that period after October 21 when he served as the dis- patcher . Veers described his functions as follows : "Since the departure of Mr . Day, my duties have increased drasti- cally. I am responsible for all the paper work connected with shipping and receiving and I have gotten into dis- patcher and driver pay rolls." As dispatcher, Veers was in close contact with the RSR sales department in Dallas about the shipping schedule and deliveries to customers . On Friday afternoons he made up a schedule of runs listing the drivers , and the runs to be made for the following week , so as to make ontime delivery of the product to the customers . He determined the amount of expense money to be advanced to the driver and secured all necessary permits . When the driver was out on the road, Veers had the authority, on a call from a driver, to issue purchase orders , to have necessary repairs made to company tractor-trailers . Drivers were in repeated tele- phone contact with the dispatcher, as they were required to call and report to him upon the making of their delivery; when they encountered route problems or difficulties which prevented them from making deliveries at the sched- uled time ; and, at least once each day that the driver was on the road. When the driver returns, Veers reviews the driver's records and checks for correct mileage, road ex- penses , and general accuracy. It. was Veers' responsibility to see that drivers were dispatched so as to equalize the mileage for the runs assigned to the drivers , as the drivers were paid on the mileage between cities as listed in the Oil Haulers Guide . Veers was a salaried employee, but was required to punch a clock; and he received overtime pay. Day and the other supervisory employees did not punch a clock , received no overtime pay, and received greater 475 fringe benefits than Veers. Unlike Day, the evidence produced clearly shows that Veers had no authority to hire, fire, transfer, suspend, lay- off, discharge, or discipline employees, or effectively to rec-, ommend such action. The question that remains is whether the facts in this case are such , nevertheless, as to meet the "responsbility to direct" criterion for supervisor status as set forth in Section 2(11) of the Act. I find that they do. Veers, as the dispatcher, was solely responsible for assign- ing the nine truckdrivers to the particular runs they would operate tractor-trailers over each week. He could direct a driver to take a 1,900-mile trip to Dallas, or take a 20-mile trip across the city. While those drivers were out on the road, he was their primary source of direction and authori- ty. He could change their destination and daily work as- signment at- any time that in his judgment he thought it necessary to do so. He used independent judgment all day long in making decisions which affected the wages, hours, and working conditions of these road drivers. To hold that Veers was not a supervisor would mean that nine over-the- road truckdrivers were driving thousands of miles per week, from points between Indianapolis and Dallas, and Indianapolis and New York without a supervisor directing them what to do. I am persuaded that Veers was a statuto- ry supervisor when he was the dispatcher after Day's de- parture. However, assuming that Veers was not a supervisor, he was an express agent of the Respondent acting on its be- half. The principal scope of his employment related to-the assignment of the drivers to their daily and weekly runs. He regularly. gave to Plant Manager Gelpke for review a sheet showing the month-to-date mileage and the year-to- date mileage of all the drivers. Veers worked under the control and direction of Gelpke, and his acts came to the attention of Gelpke. Veers was clearly an agent of the Re- spondent. D. Alleged Discharge of Jones Henry S. Jones, Jr., referred to generally as Bob Jones throughout the hearing, first applied for a job with the Re- spondent in December 1973, in response to a newspaper advertisement. He filled out an application for employ- ment at the plant, but was advised the position had been filled. In April, the Respondent ran another advertisement and Jones again went to the Company seeking employ- ment, testifying this date to. be a day or two before his hiring date of August 18. Jones testified that he was only interviewed by Day, who inquired as to his driving record, type of equipment he had operated, accidents, and traffic tickets. Day asked Jones what his feelings were toward a non- union shop, and Jones advised that it-"didn't make any difference to me , as long as I made a decent living." Jones stated that a day or two later, Day received his driving record from the Indiana State Police, and Day then sent him out on a student trip to Logansport, Indiana, with Dixon as observer. When Jones returned, Dixon discussed Jones' driving ability with Day, and Jones stated that he was then hired on April 18. Jones stated only then he was interviewed by Personnel Manager Smith, who just took 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his picture , explained company insurance benefits , and had him fill out tax withholding forms . Smith testified that she interviewed Jones on April 10, before Jones talked to Day, and after her interview, took him to Day and "He was given a driver's test also had a road test." After completion of these tests, Smith stated that she ran a check on his license , found there were no points against him, and Jones was hired on April 18 . 1 credit Smith 's version of the hiring of Jones, as she testified while holding his employment ap- plication in her hand , and referred to it for dates . It is also more probable that a time period of 8 days elapsed in se- curing the driving record of Jones from the Indiana State Police, rather than a time period of I or 2 days. Smith described a very detailed , structured personnel department hiring procedure for new employees , that was equally ap- plicable to exemployees who would apply for rehire. Day assigned Jones to truck number 39 , and Jones in- stalled his own CB radio equipment and bedding in his assigned truck . In late June or early July, Day was hospi- talized, and was temporarily replaced by Winston Coffey, the traffic manager from Dallas . Coffey assigned a run to Jones that was not to Jones' liking and he refused the as- signment, telling Coffey to stick the job. Jones called Day in the hospital telling him of the situation , and Day asked him to "hang loose," until he could handle the problem. Day candidly described Jones as a good driver, one of his better drivers, better than a fair driver, and proceeded to intercede with company officials and saved Jones' job. Jones was off work 2 to 3 weeks during this period. On August 19, Jones was given a written warning for making a late delivery to a customer in Muncie, Indiana . On August 30 Jones formally quit the job , removing his equipment and telling Day that "I didn't like the way they were cut- ting my miles and my hours on my lay-overs." On cross- examination Jones reluctantly admitted that another rea- son for his quitting was that he wanted less overnight trav- el. On the termination notice filled in by Day, Day wrote as the reason for termination "Another job less travel." Day also marked "No" to the question "Would you recommend rehire?" When asked by the Administrative Law Judge what was his reason for not recommending the rehiring of Jones, Day responded "For the verbal abuse primarily that he gave to Elton Jones , Dick Veers and Winston Coffey, plus the fact that he had stated to me that on one time in particular that he thought we were screwing him out of his wages and everything and he was very dissatisfied with our mileage system and the way we paid the hourly rates, and the overtime." Jones proceeded to work as a city truckdriver for a local company for several days, but found that work not to his liking and quit, stating "it wasn't the job that I thought it would be." Sometime around September 21, Jones went out to the Respondent 's plant to see if Dixon or Moore was in. While in the dispatch office he talked to Day and Veers, and in response to a question from Day asking him what he was doing, Jones responded "I told him nothing." Jones testi- fied that he made no application for work, and no offer of reemployment was made by Day. Day testified that Jones asked if there was any chance of getting back on, to which Day replied "I said at the present time, no because we have a full complement of drivers." Late in the evening of September 23, Moore notified Day that he would be unable to make his scheduled run to Olathe, Kansas, because his wife was sick. Day was unable to locate a replacement driver from company personnel and recalled Jones' recent visit to the plant. Jones was home asleep, when around 1 a.m. on September 24, he was awakened by a phone call from Day, at which time Jones testified on direct examination that the following conversa- tion took place: A. (Jones) And said he [Day] needed an experi- enced driver, a good driver, that he had a hot load that had to go. Q. (General Counsel) And what response, if any, did you make to him? A. I told him, if I was going back to work, that it would be on a fulltime basis, or I wouldn't come. Q. What, if anything, did he say to you? A. He told me to come on, that he was intending to hire me back as a permanent employee. On cross-examination Day admitted that Jones said something about getting back on full time to which Day replied . . . "I don't have any openings now but I said I'll try to work something out and he finally agreed to come in and go to Olathe, Kansas, with me." Jones came into the plant at or about 2 or 2:15 a.m., was not required to fill out any employment papers, and at 2:30 a.m. Day and Jones pulled out of the Respondent's yard. Delivery was made to the Kansas customer, and Day and Jones turned around at Olathe and drove back to Indianapolis, arriving between 10 p.m. and midnight. Jones testified that during the 19-21 hour period of travel he did not discuss with Day the basis in which he would be scheduled out, or the trips he would receive. On September 25 Dixon, without notice, dropped by Jones' house with a union authorization card. Jones did not complete his card as he had some doubts as to his employment status with the Respondent. Dixon testified as to Jones' cards as follows: "They were all completed except one-Mr. Bob Jones. And there was something in there. He didn't know whether he was still employed or not at the Company. They hadn't never called him back or some- thing." Jones did complete the card on September 26. On September 26, Jones called Day about another trip. Stairs, the assigned driver, was sick, Dixon was off ill, and Moore did not want long trips because of his wife's condi- tion, so Day asked Jones to take the load to Dallas and he did so. Jones returned from Dallas on Sunday evening, September 29, and made delivery to Muncie, Indiana, Monday morning, September 30. Stairs, the driver whom Jones had replaced on the Sep- tember 26 trip to Olathe, testified that on September 25 he had a conversation with Day about the status of Jones' return to work, which he described as follows: "I asked Tom if Bob was back to work and he made the statement that he was going to utilize him in a part-time position, in case one of us was sick, we wanted a day off, he was going to use Bob in that utility position." While Jones was driving back from his September 26 trip QUEMETCO, INC. to Dallas, Moore was in the dispatch office and was told by Day that he put Bob Jones back to work. At that time Moore had the union authorization cards in his possession, but to the best of Moore's belief, Day had no knowledge of this fact. Several days after the Dallas trip, Moore was in Day's office and asked him if Bob was working. Day re- plied "that he found out that Bob Jones and Mack Dixon were two of the main instigators in getting the union cards signed," called them some obscene names , and stated "as far as he was concerned, Bob Jones no longer worked there." Frentz went to work for the Respondent in the week commencing September 23 as their eighth driver. He testi- fied on direct examination that, shortly after he was hired, Day introduced him to Jones and referred to Jones as "a part-time employee." General Counsel on redirect exam- ined Frentz closely on the use of the term "extra board" in the trucking industry. Frentz testified that he had been a truckdriver for 15-20 years and that extra board was com- mon terminology in the industry, and was a matter of crit- ical importance to drivers. Frentz then went on to state that "in the trucking industry, casual, extra board, or part- time all three would mean the same thing." 4 Jones returned from Muncie to the plant in Indianapolis at 10:30 or 11 a.m., on September 30, and asked Day when he would be going out again, and Day told him to call the next morning. While there, Jones testified that he learned for the first time of the hiring of two new drivers, Jude Frentz and Oren Demeree, when he saw their names on the dispatch board. The dispatch board is located just outside of the dispatcher's office, and lists the drivers' names, truck numbers, and destinations. Jones admitted that he did not see his name on the board. Jones called Day or Veers every couple of days for 2 or 3 weeks thereafter, and each time was told "they didn't have anything, it was slow." Jones received his final pay- check for making the runs to Olathe and Dallas under the same payroll number that he had been assigned during his previous period of employment that had ended on August 30. Smith testified that the former payroll number was uti- lized so as not to have to set up a new computer number for that one check. In March 1975, Jones left the Indianap- olis office to accept employment in Texas. Veers testified that, subsequent to the time that Jones completed his Dallas trip, there had been no occasion to use an extra driver, or to use a plant employee, to make a trip that normally would be made by a full-time driver. No evidence was offered to rebut this testimony. E. The Layoff of Mack Dixon; the Loan of Money Dixon 5 had been hired by the Respondent on January 7 as an over-the-road driver, at the bottom of the seniority list. Turnover of drivers was frequent and by September he had risen to be the third senior driver out of a complement Oren Demeree was not called as a witness , but G.C. Exh. 12 lists him as the Company's ninth driver , who first drove for the Respondent in the week commencing September 30. 5 From his demeanor on the stand, Dixon impressed me as basically an honest witness, trying to tell the truth as best his memory would allow him. 477 of nine. Dixon and Manager Day, who was hired within a few days of Dixon, became close personal friends on and off the job, frequently visiting together in taverns and at their homes. Dixon testified that sometime in September 6 after work, he and Day were having a beer at Norris' Tav- ern, when Day said "he thought we was trying to get the Union in there and he asked me what I thought about the Union and what the men thought about him ...." Dixon replied that he "didn't know whether it was going union or not," and Day stated that if this Company did not want a union, "they could run their loads LTL." Dixon testified that he did not know what LTL meant, but believed it to indicate that the Company would ship by other freight lines. On September 25, in the period during which Dixon was soliciting union cards from his fellow drivers, Dixon testi- fied that Day telephoned him "-madder than hell and said I was going out and badgering, trying to force the guys to sign union cards." Day testified that he had called Dix- on and "I said, I don't know what you think you are doing but I don't enjoy getting these phone calls from some of the drivers telling me that you are trying to force them to sign Union authorization cards." Dixon had had medical problems with his kidneys for some time, and, during the week ending September 29, he had been absent from work for 3 or 4 days. He returned to work on September 30 with a note from his family doctor reporting that he was able to work. On October 1, Day was dispatched on a run to make a delivery in Olathe, Kansas, and a pick up in Wichita, Kansas, for delivery to Dallas. En route to Dallas in Oklahoma, Dixon became ill with his recurring kidney problem and reported this condition by phone to Day. Upon arrival in Dallas, Dixon was taken to a clinic by the RSR dispatcher, Roy Dancer. However, after waiting several hours for a doctor, Dixon decided to leave, and returned to the RSR plant. He slept 6-7 hours in the cab of his truck, and then drove north with a load of new lead for the Western Electric Company in Cierco, Illi- nois, for delivery on Friday, October 4. Around Benton , Arkansas, Dixon's kidney problem flared up again and upon seeing a sign on the road marked "Clinic," he stopped. No medical treatment was available at the Clinic, and he was directed to "a little hospital or whatever they call it across the street," where he received some sulfur pills. Dixon phoned Day and told him of his illness and Day advised him if he was that sick to bring the load home, to Indianapolis. Dixon drove north, laid over for 8 hours in West Memphis and then proceeded again. The following day, October 4, in Effingham, Illinois, the tractor's right front tire blew out, knocking out the head- light and damaging the fender. Dixon called the plant around noontime, and upon receiving authorization had the tire replaced at a truck stop. Shortly after getting back on. the road, a trailer tire went flat. Dixon phoned Veers at his home around 6:30 p.m., and received a purchase -order number to cover the tire repair. Veers told Dixon that he had him scheduled off for a week because of his sickness, as Day had called from Dallas and had instructed Veers 6 In the complaint the date was set forth as in May. In any event the matter was fully litigated by all parties. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about noon "to leave the schedule open as far as Mack was concerned until we found out definitely what was wrong with him." Dixon drove the loaded tractor-trailer into the Indianap- olis yard about 5:20 a.m., Saturday, October 5. About 9 a.m. Dixon spoke briefly to Plant Manager Gelpke, who knew that Dixon had been ill out on the road and was long overdue. On Monday the load of lead was delivered to Western Electric in Illinois. Day testified that on Thursday, October 3, he became concerned about Dixon 's health , and since the Respondent had a load to go to Dallas , he decided to make the run with driver Bill Bell "to look for Mack on the road in case he needed assistance ." Day arrived in Dallas on Friday morn- ing at 10:30 a .m., and left at 6 p.m. to return to Indianapo- lis. Day's search for Dixon along the route was futile, and Day arrived back at Indianapolis on Saturday morning at 11:30 a.m., to find Dixon's tractor-trailer parked in the yard. Day observed that there was some damage to the right front of the tractor, and that there were two torn up tires behind the cab and one more torn up tire in the trail- er. Gelpke was present at the time and he and Day dis- cussed the condition of the unit . Day was skeptical as to the blowout of a tire causing such damage to the tractor. On Monday afternoon , October 7, Dixon telephoned Day and told him that his kidney infection was flaring up again and that his doctor had advised him to take a few days off. On Thursday morning, October 10, Dixon phoned Day and asked if he "was going to have a run out," and Day said "Yeah, we have you scheduled for Olathe, Kansas , to leave out on Sunday morning." Day told Dixon that he would have to have a statement from his doctor authorizing his return to work. That evening between 9 and 9:30 p.m. Day phoned Dix- on and asked him to come out and look at his new house. Dixon, his wife , and children proceeded to meet Day, who guided them to the new house. After talking about Dixon's scheduled run to Kansas on Sunday , Dixon testified that Day said he had brought him out there "to talk to you about the union," and Day proceeded to ask Dixon why he felt the drivers needed a union ; and said the Company could benefit Dixon better without a union. Day also said that, if the drivers voted the Union in, that the Company would ship some of the merchandise by other means. After further discussion Dixon stated that all the cards were signed "and if you want to fire me , you can," and that Day responded "No, I'm not going to do nothing like that, but you are skating on thin ice." Mrs. Dixon was a completely forthright and credible witness. She corroborated her husband 's testimony and had a much more detailed re- membrance of that evening 's family visit . She stated that Day said he had been to Dallas, "and they left it in his hands to persuade the drivers to vote against the Union; and he told Mack if they went ahead and voted it in, that he was going to lose his job, and he told Mack that he, also, was walking on very thin ice as far as his job was con- cerned." On cross-examination , Day was questioned by the Gen- eral Counsel about Mrs. Dixon's testimony that Day stated he would lose his job if the Union was voted in.7 Q. Isn't it a fact that you told the Dixons if they got a union in you would lose your job? A. No, I don't think so; I don't recall it. Day did admit that "there was some talk about thin ice because of the Dallas trip with all the blown tires and ev- erything and the shaky explanation he gave us." On the morning of October 11, Dixon secured a written release from his doctor, went to the Respondent's dispatch office and gave Dr. Walter McMannis' report to Veers, which stated "Mr. Dixon. can return to work on 10-13-74." On Saturday, October 12, Gelpke advised Day that Dal- las had requested that they not send Dixon out until he had completed an accident report, brought his logs up to date, and given a detailed report about the Dallas trip. Vice President Lospinozo wanted this information because of the failure to make the delivery to Western Electric on October 4. Dixon was out of town on Saturday,' and on Sunday evening, October 13, he went to the plant to get his unit to begin his assigned trip to Olathe. The plant guard had been instructed by Day not to let Dixon take his unit out, and Dixon was so notified by the guard. The next morning Dixon went to the plant and met with Gelpke, Smith, Day, and Veers. Dixon did not want to fill out an accident report as, in his opinion, the blowout of the right front tractor tire did not constitute an accident. Dix- on was told that he would not be permitted to run until he submitted an accident report, completed his logs for the Dallas trip, and submitted a report from the clinic at which he had stopped in Benton, Arkansas. Dixon filled out an accident report, brought his logs up to date, and on Friday, October 18, submitted a report from the Saline County Health Clinic showing that he had in fact been at that clinic in Benton . He was thereupon scheduled for the next available run, Tuesday, October 22, the drivers being scheduled for a safety meeting on Octo- ber 21. Dixon testified that "around May, June" prior to the union campaign he had gone to Day three or four times to try to borrow some money from the Company, one time for $400, and a couple of times for $200. Each time Day would call back and refuse the loan. In mid-November, several weeks before the scheduled election, Stairs went to Personnel Manager Smith and asked for an advance of $200 to pay bills and to buy Christmas presents. Smith told him that, because the elec- tion was coming up, she wanted to talk to the Respondent's counsel to see what to do, as she remembered that in the past the Company had advanced money to Moore during his wife's pregnancy, and had advanced over $100 to a driver named Goodman for bail money. Dallas, after re- viewing past practice with legal counsel, authorized the ad- vance to Stairs of $200. About I week later, Dixon went to see Gelpke about getting a loan. Dixon did not recall how he began this conversation with Gelpke but, during its course, he stated he was "considering dropping this labor thing" and re- 7 This was one of the very few times that Day equivocated in answering any question , either on direct or cross-examination . Normally, Day testified with directness and bluntness in rapid fire order. I credit Mrs. Dixon's testimony. QUEMETCO, INC. 479 ferred "to his labor charge against the Company." B There was discussion about Day's leaving the Company, on Dix- on being third on the seniority list of drivers, and finally Gelpke referred Dixon to Smith for this handling of the load. On November 27, Dixon received from Veers $200 in the form of four $50 checks. Shortly thereafter, upon requests by drivers Moore and Bill Bell, the Company made similar advances in the range of $150 or $200 to Moore and Bell. F. Gelpke-Gibson Conversation Gibson, who had been hired in the middle of July, was outside the dispatch office late in October or early Novem- ber, when he engaged in a brief conversation with Gelpke. On direct examination General Counsel asked Gibson: Q. Now during your employment at Quemetco, have you had any conversations with anyone other than the drivers, about the Union? A. One incident . . . in front of Dick's office. I was talking to Roy [Gelpke], and he asked me if I had been affiliated with the Union before, and I said "yes." On cross-examination, Gibson amplified the actual conver- sation that took place in that hallway conversation. Q. You were talking about the Union? A. No, we were not. We were talking about how things were; he had talked to me before. It is nothing, but generally ..., how our equipment was, if we were having any difficulty, that sort of thing. Q. Then, out of the clear blue sky he said, "You have been with the Union a while, haven't you?" A. This is the way it was. Something to that effect. Gibson then testified that the question was dropped and not pressed any further. Gelpke testified that he knew Gib- son had formerly worked for Kroger and McLean, two large unionized companies, and he assumed Gibson be- longed to the Union. G. The Reduction of Work and Wages for Moore, Dixon, Frentz, Stairs, and Gibson On December 27, Moore filed a charge with the Board, alleging that the Respondent had refused to provide Stairs, Dixon, Gibson, Frentz, and himself 9 with the number of miles of driving that had been assigned to them in the past. Since the Company paid the drivers at 13-1/2 cents per loaded trailer mile and 11-1/2 cents per unloaded trailer mile, the number of miles a driver drove per week was the primary basis of his weekly wage. It was also a. firm rule of the Respondent, as contained in the drivers' handbook, that the miles driven by the driv- ers be equalized. Not only was this contained in the driv- ers' handbook, but Gelpke, Smith, Day, and Veers all testi- fied as to their support of this principle of equalization of B Dixon had not filed the charge, as the charge was actually filed by the Union on his and Jones' behalf. 9 Moore, Stairs, Gibson, and Frentz were responsive, credible witnesses. Also, all four drivers testified against the Respondent while still in its em- ploy, further supporting their credibility. mileage. Gelpke succinctly stated his position: "I felt very strongly that we have to keep all our drivers on an equal mileage basis." Prior to February 1975, Veers equalized the mileage of the drivers by considering the previous week, the previous month, and the previous quarter, bringing the mileage up to "fair" equality at the end of the quarter. After February 1975, Veers still equalized the mileage but did it over the prior 6-month period. Shipping and Receiving Manager Day testified that on various occasions he was asked by his drivers what could happen to them if the Union won the election. His typical answer was: I had my own tractors one time and I know of a com- pany called Peterson Manufacturing Company in Los Angeles, that at one time they had six drivers and six road rigs. Their drivers decided to go Teamsters, at which time, this was an individually owned company, Peterson Manufacturing Company, at which time he had all leased equipment and when they went Team- sters he turned his equipment back in, fired all the drivers, and went to common carriers. Gibson testified that on two occasions Day talked to him about the Union. The first time, early in October while standing outside of Day's office, Day said to him, "He told me that the Company frowned upon the Teamsters, there was a great possibility that, if they did get in that there was nothing to keep the Company from turning the trucks back into Hertz, and sending their freight by common carrier." Several weeks later, while out on the company lot, Day again talked to Gibson stating that the Company did not have to have Indianapolis drivers, that the Company could ship by Dallas drivers or New York drivers or common carriers. Drivers Dixon, Moore, Stairs, Gibson, and Frentz all testified that the drivers talked freely about the Union in the presence of Day on. any number of occasions. They were not ashamed of their union support, and it was not something they tried to hide. Day, in turn, admitted that he had many discussions with the men about the Union and told them that he did not like the Union. Day knew that Dixon, Moore, Stairs, Gibson, and Frentz supported the Union. He also knew, by their own statements, that Law- son and Fleming were strongly antiunion, and that Demer- ee had not signed a union authorization card. General Counsel in his brief states: "Beginning with Oc- tober Respondent's drivers lost most of the work hauling batteries to Dallas and returning metals manufactured at Dallas which had been previously assigned to them. Partic- ularly dramatic was the loss of work delivering lead from Dallas to the Delco Renny plant in Muncie, Indiana." The Indianapolis to Dallas return ,trip was by far the favorite run of the great majority of the drivers for many reasons. It provided the most money in the shortest period of time, as a driver could run to Dallas in 2 or 3 days, and make more money than running to Muncie for 5 days. Also, he only had to get up three mornings instead of five. It was snow free. It was flat without the mountains and curves of the eastern runs. It had higher speed limits. It was, as all drivers testified, an easy run. Veers testified that Day at times consulted with low 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mileage drivers as to which trips they would like to make the next week . As of October 22, when Veers took over as dispatcher, he made no attempt to let drivers select pre- ferred trips. Veers stated that "We tried to dispatch the men so that things would come out even-, so I dispatched strictly on a mileage basis." The equalization of mileage required that if a driver ran 2,000 miles I week he would probably make short runs the next week . Seniority played no basis in earning opportuni- ty. Lospinozo testified credibly and knowledgeably on the manufacturing and distribution system of the parent cor- poration and its four subsidiaries, including the Respon- dent. He stated that there was a corporation purpose in placing plants in five sections of the country because of the substantial freight charges per mile involved in hauling lead. The object was to cut down on shipping expenses by having plants service customers within 300 to 400 miles of each plant. The 40-year-old Dallas plant had the capacity to pro- duce 50 percent of the total tonnage of new lead that could be produced by all five RSR plants. The Indianapolis plant was having start-up problems in the summer of 1974, and the Dallas plant had the manufactured alloys ready for the midwestern customers. The vice president further stated that, after Gelpke's hir- ing in July as the first full-time plant manager, the India- napolis plant boosted its production of alloys 30 percent, and it no longer became necessary for Indianapolis trucks to go to Dallas to pick up the same alloy as they were making in their own Indianapolis plant. Conversely, the Indianapolis drivers no longer handled used batteries to Dallas. Lospinozo testified that the Indianapolis plant could not produce high antimony alloys required by Delco in Mun- cie, and that the Dallas plant therefore manufactured it, and Dallas drivers delivered it to Delco. Dallas had a com- plement of 35 drivers. Under the corporation's plantwide system, the drivers employed at the manufacturing plant had the primary responsibility to deliver the plant's own products so as to best ensure the delivery on schedule. Lospinozo also testified that most of their alloys are for new car electrical batteries or replacement batteries, and with the national decline of the sale of automobiles, the sale of batteries had correspondingly gone down. As fur- ther causes of a decline in driver's mileage , he stated that Delco in Muncie has requested that at least half of their shipments be by rail, and that DuPont in New Jersey has requested the same shipping arrangement. General Counsel introduced into evidence voluminous records of the Respondent , General Counsel Exhibit 13 through 31, pertaining to trips made and mileage driven by Indianapolis drivers. General Counsel's Exhibit 12 was a compilation of miles driven by Respondent's drivers from July 8, 1973, to February 23, 1975. From General Counsel's Exhibit 12, General Counsel compiled a summa- ry of miles driven and wages earned for the months of July, August, and September as well as for the months of Octo- ber, November, and December. The summary for these two quarters as presented in the General Counsel's brief, are set forth below: JULY-SEPTII BER 1974 Miles Wages Moore 22706 $3775.69 Lawson 22650 $3534.14 Dixon 21826 $3619.22 Fleming 23276 $3716.37 Stairs 22015 $3456.85 Gibson 18875 $2985.10 Bell 14172 $2307.83 Frentz 1915 $288.53 OCTOBER-DECEMBER 1974 Moore 12862 $2211.51 Lawson 19708 $3390.82 Dixon 14865 $2627.32 Fleming 19199 $3289.74 Stairs 17926 $2978.71 Gibson 18776 $2919.36 Bell 18500 $3133.24 Frentz 16125 $2676.78 Demeree 18502 $2870.01 H. Analysis and Conclusions 1. Interference, restraint, and coercion The complaint alleges eight specific incidents of viola- tion of Section 8(a)(1). The evidence in the incidents in- volving Dixon has been set forth hereinbefore, and conclu- sions for such incidents will be now considered. The evidence and conclusions with respect to the remaining allegations of 8(a)(1) violations will be discussed below in the same order in which they are pleaded in paragraphs 5 and 6 of the complaint. In the Norris Tavern incident, while Day and Dixon were having a friendly beer after work, Day did inquire briefly of Dixon what he thought about the Union and what the men thought about him. Under the strong friend- ship between the two, in the neutral atmosphere of the neighborhood tavern, I find nothing coercive in Day's in- quiry. Day further stated that the Company "could run their loads LTL" if the Company did not want a Union. Dixon did understand this to mean that if the Union got in, the Company would get rid of its own trucks and drivers, and ship its merchandise by common carrier freight lines. Dixon understood Day's statement as an implied threat of economic reprisal. Accordingly, the threat described above QUEMETCO, INC. 481 was coercive and the Respondent violated Section 8(a)(1) of the Act. The next incident relates to Day's telephoning Dixon and angrily accusing him of badgering employees to sign union authorization cards. This call by Day was an unlaw- ful infringement on Dixon's statutory rights . Day's angry criticism was a restraint on Dixon, and interfered with the employees' rights to engage in lawful union activity. I find that the incident violated Section 8(a)(1). The next incident involved the evening of October 10, when Day invited Dixon and his family late in the evening to come out and look at his new house. After they arrived Day candidly laid it on the line, that he brought Dixon out to talk to him about the Union, and interrogated him about why he felt the drivers needed a union. Day again told Dixon that, if the drivers voted for the Union, the Company would ship by other means . Day admitted that he had mentioned that Dixon was on thin ice, but stated his use of that term was because of Dixon's Dallas trip with its attendant problems. However, this was clearly a threat by Day to Dixon to divorce himself from his union activi- ties or he could be fired, using the Dallas trip as the excuse for the firing. Day's interrogation and threats were coercive and constituted a violation of Section 8(a)(1) of the Act. As Day testified, he told the drivers several times about the owner of the Peterson Company who employed six drivers and leased six rigs , and when "they went Teamster, he turned his equipment back in, fired all the drivers, and went to common carriers." [Emphasis supplied.] There is no doubt but that Day's listeners could infer or deduce from Day's remarks that their employment would be im- periled by a union victory. Day was in fact telling the driv- ers that the Respondent could fire them just like Peterson "fired all the drivers," simply because "they went Team- ster," and that they would be replaced by common carriers transporting the Respondent merchandise, Accordingly, I find that Day's threat described above is clearly coercive and a violation of Section 8(a)(1) of the Act. The incidents of Gibson's conversation with Day outside of Day's office and his conversation with Day out on the lot several weeks later largely coincide with the language that Day regularly used; that, if the Teamsters got in, the Company could turn the trucks back to Hertz and ship by common carrier. In the second conversation, Day pro- posed another way that the Company could get rid of its Indianapolis drivers, and that was by using the New York drivers and Dallas drivers to haul in and out of the India- napolis plant. I find that Day's threats described above are clearly coercive and a violation of Section 8(a)(1) of the Act. I turn now to Gelpke's conversation with Gibson while standing outside the dispatch office. Gibson's testimony shows that he and Gelpke were involved in informal shop talk, about trucks and trailers and general transportation matters. In the context of that conversation, I can find nothing coercive in Gelpke's brief, ambiguous comment, "You have been with the Union a while, haven't you." Gibson had been a member of the Teamsters union for 10 years, and openly proclaimed such membership. Accord- ingly, I shall recommend that this allegation of the com- plaint be dismissed. 2. The alleged discharge of Jones There is no question but that Jones Ill was a regular, full- time employee of the Respondent from April 18 to August 30, when he quit. The instant issue is whether he again became an employee, and what kind of an employee, com- mencing September 24. Jones buttresses his entire case on the brief telephone conversation he had with Day shortly after midnight on September 24. Jones claims that when Day called to tell him he needed "a good driver, that he had a hot load that had to go," that he wrung from Day an agreement that he would come back "on a full-time basis." Day agreed that Jones did raise the question of getting back on full time , but claimed he only told Jones that "I'll try to work something out." I credit Day in this instance. tl At the last minute , Day had found himself without a driver to pull the load to the Olathe customer, when Moore had notified him that he would be unable to make the run. In Day's past 9 months with the Company, he had occa- sionally used Willie Campbell, the shipping supervisor, and Kato Sanford, a plant leadman, as an emergency substi- tute, but this time they were not available. Day, who had had years of experience in the motor freight transportation field, was desperate for a driver to pull that "hot load that had to go," and at 1 a.m. he was not going to argue with Jones. Instead he equivocated with Jones, gave him an am- biguous answer, and got him to come in to move that load. Clearly, Jones was an employee of the Respondent while operating that tractor-trailer to and from Kansas. If he had had a collision with another vehicle, the Respondent would have been just as liable for his negligence as if the unit had been operated by its most senior driver. Jones himself showed that he had grave doubts about the status of his employment on September 25 when Dixon dropped around with a union authorization card. Jones had just completed his 1-day trip to Kansas and yet, when asked by Dixon to fill out the authorization card he did not do so, as Dixon testified "He didn't know whether he was still employed or not at the company." On September 26, when Stairs was sick and no other driver available, Day asked Jones to take the load to Dal- las. Jones once again made a trip and once again was an employee of the Respondent during that trip, that lasted until Monday morning, September 30. The possibility of the Respondent setting up an extra board of casual or part-time employees was a matter of vital concern to the regular drivers because of its known danger of taking work away from full-time drivers and thereby diluting their income. Stairs and Frentz, both low seniority men, were each told by Day that Jones was going to work as a part-time man in case of an emergency. Jones was present when Day informed Frentz of this status, yet he made no comment or objection. Jones admitted that he saw Frentz' and Demeree's name 10 Jones was not an impressive witness. His testimony was evasive and shifting. 11 It is beyond question that as Administrative Law Judge , I am not re- quired to discredit all of Day's testimony because I have discredited some of it. See N. L. R. B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2, 1950), vacated and remanded on other grounds, 340 U.S. 474 (1951). 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the dispatch board on September 30, with their destina- tions set forth , and that he did not see his name. Jones made no protest about his name being omitted. Although it was his position that he had been hired by Day on Tues- day, September 24, as a regular full-time employee, Jones well knew that the schedule had been made up on the pre- vious Friday, September 27, and if he had been a regular employee, he would have been scheduled out on the Sep- tember 30 schedule. The General Counsel in his brief infers that Demeree was hired after Jones ' September 24 trip to Kansas. While the record does not supply Demeree's date of hire, his name was listed on the September 30 dispatch board, which had been taken from the schedule made up on Sep- tember 27. The record does show that the Respondent had a very long and detailed procedure for checking out driv- ers, traffic records, and work records, and it may be fairly inferred that Demeree was hired prior to September 24. I find that the Respondent did hire Jones as an irregular part-time employee for individual trip assignments to be used to take care of emergency trips when a regular driver was not available. No evidence was presented by the Gen- eral Counsel that any emergency trips were required or made after September 30. Accordingly, I find that based on the record as a whole the General Counsel has not proven by a preponderance of the evidence that the Respondent discriminated against Jones. 3. The layoff of Dixon There is no need to recount in detail the events that happened to Dixon on his long trip to Dallas . He was sick along the way , he did have a substantial amount of tire trouble with five tires being replaced . There was damage to the tractor , and the load was not delivered to Western Electric on schedule . However, all of this was known to Day and Gelpke on Saturday , October 5, after Dixon parked his unit in the plant yard . On October 7, Dixon telephoned Day and told him that his kidney infection was flaring up again , and that his doctor had told him to take a few days off. From that Monday to Thursday, Dixon heard nothing from Day, Gelpke, Smith , Veers, or any rep- resentative of the Respondent. Dixon himself called Day on October 10 to inquire if he was going to have a run out and he was told he was sched- uled for a Sunday run to Kansas . Day then made the rea- sonable request that Dixon bring a statement from his doc- tor authorizing him to return to work, and in fact his family doctor did authorize him to return to work on Oc- tober 13. It is thus clear that Dixon's lack of work for the week of October 6 through 12 was due to his bona fide medical problem , and was not due to any discrimination by the Respondent. It was not until late Thursday evening, October 10, that Dixon next heard from any representative of the Respon- dent . The initial invitation from Day was ostensibly from a friend to come out for a social visit and see his new home. However, shortly after Dixon 's arrival, the real purpose of Day's invitation became apparent when Day informed him he had brought him out there "to talk to you about the Union." And Day did proceed to express his union hostili- ty, and to plead for help from Dixon telling him that, if the Union got in, he would lose his job. Day, who most of the time testified rapidly, forcefully, and directly, when asked if he had not told the Dixons that he would lose his job if the Union got in, did not deny that he had done so, but hesitated and equivocated, stating, "No, I don't think so. I don't recall it." It was obvious that he did recall it. Day well knew that Dixon was the spearhead of the union cam- paign, and he proceeded to illegally interrogate Dixon about the Union, and to threaten him with fear of dis- charge by telling him he was "skating on thin ice." The next morning Dixon took his medical authorization into the dispatch office and gave it to Veers. Nothing was said to Dixon about filling out an accident report, or secur- ing a report from the clinic in Arkansas, or on bringing his logs up to date. Finally, on Sunday when he went to the yard to pick up his tractor-trailer to start his already sched- uled run, he was turned away from the plant by the Re- spondent guard. On the following Monday, 9 days after he talked with Day and Gelpke on the company parking lot standing near his tractor-trailer, he met with the top executives of the Respondent, Gelpke, Smith, and Day, and was told cere- moniously that, before he could go out with a run, he had to submit an accident report, complete his logs for the Dal- las trip, and submit a report from the Arkansas clinic. Both Day and Smith testified that the reason for the demand for these documents was because the Dallas sales office was saying they had to give Western Electric a rea- sonable excuse why the load was not delivered on October 4, because the failure to deliver "caused the plant to be shut down." As a matter of fact, Dallas officials well knew that Dixon had been sick on the entire trip. On Wednesday morning, October 2, Day had received a telephone call from Dixon in Dallas, telling him he was sick. Day told Dixon to see Coffey, the Dallas traffic manager, to see if Coffey could get him to a doctor. Ray Dancer, the Dallas dispatcher, took Dixon to a clinic that day. Day himself was in Dallas all day Friday, October 4, for the dual rea- sons of concern over Dixon's sickness, and to take a load to the Dallas plant. It is certainly reasonable to infer that Day discussed Dixon's sickness with Dallas officials during the course of that day, as Day well knew of Dixon's long history of kidney trouble. The reasonable excuse for the failure to deliver the load to Western Electric on October 4 was that the driver Dixon was delayed by sickness throughout his trip. There is no evidence that Western Electric called on RSR to produce a medical report that Dixon had been sick during the trip. The driver's logs and an accident report from Dixon were clearly internal affairs of the Respondent, and of no value to Western Electric.12 Day's invitation to Dixon to come to his house on the evening of October 10 was the high water mark for the 12 The failure of the load to be delivered to Western Electric did not "cause the plant to be shut down ," as claimed by Day and Smith . Lospinozo testified that the failure to deliver only caused a department to shut down, not the plant . Since the load was delivered the following Monday morning, the department was closed down for a weekend, at most. QUEMETCO, INC. 483 Respondent to secure Dixon 's cooperation against the Union . When being nice did not cause Dixon to turn against the Union, the Respondent turned to the harsher method of putting obstacles in Dixon 's return to work. The suspension of the union leader was a clear warning to the other employees as to what could happen to their jobs if they continued to support the Union. The reason advanced by the Respondent for Dixon's layoff is unbelievable in the light of the entire record, and does not withstand scrutiny . He filled out the accident re- port , brought his logs up to date , and secured a statement from the Saline County Health Unit, all by Friday, Octo- ber 18, all things that he could and would have done in the previous week if the Respondent had so requested. The inference of discriminatory motivation "is sustained and buttressed by the fact that the [explanation offered by the employer] failed to stand under scrutiny." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A.: 5, 1962); Stairs' loan as a precedent, authorized the loan to Dixon of $200. It was the Respondent's duty in the situation in which it found itself to determine the question of making the loan to Dixon, precisely as if a union were not in the picture. McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242 (1966); Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975). Smith realized that the Company had made similar loans before the Union had entered the picture, and Stairs' and Dixon's loans were, thereby authorized. I find that the General Counsel has not shown that Respondent violated the Act by making the loan to Dixon. 5. The reduction of work and wages The record is clear that, on numerous occasions during the union campaign, Day threatened that the Respondent would reduce or eliminate the drivers' work in some man- N.L.R.B. v. Thomas W. Dant, et al., d/b/a Dant & Russell, ner, such as by turning the leased trucks back to Hertz, or Ltd., 207 F.2d 165 , 167 (C.A. 9, 1953 ). The timing of the by shipping common carrier , or by using other subsidiaries' layoff , upon the genesis of the union organizational move- ment, strengthens this inference and strongly supports the conclusion that the real motive of the Respondent was un- lawful and discriminatory. As was stated in L.J. "Lee" Folkens, d/b/a Standard Oil Distributors v. N.L.R.B., 500 F.2d 52 (C.A. 9, 1974): "Circumstantial evidence, includ- ing the timing of [the] discharge , coupled with [the employ- er's] apparently fabricated business justifications , is suffi- cient to support the . . . findings" of discriminatory motivation . Timing, knowledge , and unusual action of the Respondent support this conclusion. "Illegal motive has been held supported by a combina- tion of factors, such as `coincidence in union activity and discharge' . . . `general bias hostility toward the union' ... variance from the employer's `normal employment routine' . . . and 'an implausible explanation by the em- ployer for its action ..."' McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All of these fac- tors are present in the instant case. Accordingly, it is found that the layoff of Mack Dixon on October 13, 1974, was in violation of Section 8(a)(3) and (1) of the Act. 4. The loan of money to Dixon The evidence is uncontradicted that Day refused to make loans to Dixon on several occasions prior to the union campaign . However , when Stairs at a later point went to Personnel Manager Smith for a loan , she handled the request in a professional , business-like way. She knew the election was approaching, she knew that the Respon- dent had lent money previously to two other employees, Moore and Goodman , and she intelligently sought legal advice from company counsel. Acting in good faith on le- gal advice, she arranged for the loan to Stairs. One week later, Dixon went to see Gelpke and engaged in a rambling conversation about "his labor charge against the company," about Day leaving the Company, about his seniority status, and also about a loan of $200. Gelpke re- ferred him to Personnel Manager Smith , and she, with the trucks, if the drivers persisted in their desire to be repre- sented by the Union. General Counsel charges in his brief that the Respon- dent carried out this threat in two ways, the first of which we will examine at this time : In the 3 months following the beginning of the Union's organizational efforts the drivers suffered a substantial reduction in their wages from the previous 3 months. Since the driver's wages are determined by the mileage they drive, I will .review the salient facts as they apply to mileage. The summary contained in General Counsel's brief, tak- en from mileage and wage data that was supplied by the Respondent, shows, among other things, the miles and wages for eight drivers who worked during the July, Au- gust, and September quarter, with their total mileage being 147,135 miles. The total mileage of the nine drivers listed in General Counsel's summary who drove in the October, November, and December quarter is 146,463 miles. How- ever, Bob Jones, who drove during the months of July and August, is not listed on the summary. His mileage, taken from General Counsel's Exhibit 12, shows that he drove 10,628 miles for these 2 months. Jones' 10,628 miles, added to the other eight drivers 147,135 miles, makes a total of 157,963 miles driven by the Respondent's drivers in the July-September quarter, compared to 146,463 miles in the October-December quarter, a difference of 11,500 miles or a 7.3 percent reduction in mileage. Lospinozo admitted that there had been a diminishing of mileage, but he attributed it to many factors: RSR's-plan to have customers served by subsidiary plants within 300 to 400 miles of the customer; that Gelpke had increased Respondent's ability to produce additional types of alloys that formerly had to come from Dallas, particularly a high antimony alloy used by Delco in Muncie; that there had been an economic recession in the manufacture of automo- biles in 1974-75, which caused a reduction in the purchase of Respondent's alloys and oxides for new and replace- ment batteries; and that two major customers, Delco Remy in Muncie and DuPont in New Jersey, had requested that 50 percent of their shipments be by rail. Although Lospino- 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zo submitted no records to support his testimony, he was a persuasive witness and the reasons he submitted were both logical business reasons and commonsense factors that caused the reduction in mileage of 7.3 percent. I am there- fore unable to find that the Respondent discriminated against all of the drivers by reducing their work. General Counsel's brief sets forth the second claim of work reduction discrimination as follows: In the 3 months following the beginning of the Union's efforts among Respondent's drivers the drivers who the Respondent knew or suspected were antiunion fared better in wages than the prounion drivers. As the evidence shows, Day knew that Moore, Dixon, Stairs, Gibson, and Frentz were prounion, and that Law- son, Fleming, and Demeree were antiunion. The record is crystal clear that the Respondent, as testi- fied to by Gelpke, Smith, Day, and Veers, was dedicated to equalizing the mileage of their drivers, so that their wages would be reasonably equal. An examination of General Counsel's summary above shows that in the July-Septem- ber quarter, the drivers who worked the full 3 months, Moore, Lawson, Dixon, Fleming, and Stairs, were dis- patched so that their mileage came out reasonably equal.13 By adding together the mileage of Moore, Lawson, Dixon, Fleming, and Stairs we have total mileage of 112,473 miles; divided by 5, we have 22,495 miles as the average mileage for these five drivers. I then compared the mileage actually driven by each of these five drivers with this average mile- age figure , and it is readily apparent that the Respondent did fairly equalize the mileage of its drivers in July through September. NAME MILES DRIVEN OVER AV. UNDER AV. OVER UNDER Moore 22706 211 00.9 Lawson 22650 155 00.6 Dixon 21826 669 02.9 Fleming 23276 761 03.4 Stairs 22015 481 02.1 No one could reasonably complain that the Respondent did not live up to its avowed policy of equalizing the mile- age during the July-September quarter. The five drivers were each within a few hundred miles of the average mile- age, and all were within a few percentage points of the average mileage of the group who drove for the full 3 months. However, an examination of the same summary for the months of October, November, and December shows a startling difference in the average miles driven by the driv- ers during that quarter. All nine drivers drove the full 3 months. Their total mileage was 146,463 miles, making an average mileage of 17,274 miles for each of the nine driv- ers. On comparing this average mileage with the miles actu- ally driven by each of the nine drivers, it is readily appar- ent that the Respondent did not equalize the mileage of its drivers during that quarter. Whereas in the previous quarter, all 3-month drivers ran virtually the same mileage, separated from each other by only a few hundred miles, and small fractions of percent- age points, in the October-December quarter there is a tremendous difference in mileage, with the drivers being separated by thousands of miles, and up to 21.1 percentage points over the average. In actual mileage, Lawson and Fleming, both known by Respondent to be openly antiun- ion, drove the most mileage, with Lawson running 6,846 miles more than Moore, and 4,843 miles more than Dixon, both prounion drivers. Demeree, believed by the Respon- dent to be antiunion, drove 5,640 more miles than Moore, although a newly hired driver with the least experience in operating the Company's trucks and following company routes. All three of the antiunion drivers drove more mile- age than four of the five prounion drivers. MILES OVER UNDER % /. NAME DRIVEN AV. AV. OVER UNDER Moore 12862 3412 20.9 Lawson 19708 3434 21.1 Dixon 14865 1409 08.6 Fleming 19199 2925 17.9 Stairs 17926 1652 10.1 Gibson 18776 2502 15.3 Bell 18500 2226 13.7 Frentz 16125 149 00.9 Demeree 18502 2228 13.7 13 The three drivers who did not work the full quarter were Gibson. who started to work the week ending 7-22-74 : Bell started to work the week ending 8-18-74; and Frentz the week ending 9-29-74. QUEMETCO, INC. 485 The Respondent 's avowed policy to equalize mileage was clearly and fairly shown by the mileage driven by its drivers in the July-September quarter . However , this poli- cy was shattered in the October-December quarter (when the union campaign took place ), as amply shown by the summaries above . I find that Respondent intentionally ma- nipulated and reduced the mileage of the union supporters, Moore , Dixon , Stairs , Gibson, and Frentz , thereby reduc- ing their wages , because of their assistance and support of the Union , in violation of Section 8(a)(3) and ( 1) of the Act. Standard Beverage, Inc., 216 NLRB 283 (1975). Upon the foregoing findings of fact , and upon the entire record in this case , I make the following: assisted and supported the Union , Respondent discrimi- nated against each of them in regard to his hire and tenure of employment and the terms and conditions thereof, to discourage membership in the Union , and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and ( 1) of the Act. 6. The General Counsel has failed to prove by a prepon- derance of the evidence that Respondent promised to make loans , as alleged in paragraph 5(a) of the complaint, and that the discharge of Henry S . (Bob) Jones was dis- criminatorily motivated , and therefore the allegations of the complaint in those respects should be dismissed. THE REMEDY CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section III,H , I, hereof, Respondent interfered with , restrained , and coerced its em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act, and thereby engaged in , and is engaging in, unfair labor practices proscribed by. Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. By discriminatorily laying off Mack Dixon on Octo- ber 13, thereby discouraging membership in the Union, Respondent has engaged in, and is engaging in, unfair la- bor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By reducing the amount of work in the number of miles assigned to be driven by Jerald Moore, Mack Dixon, Dale Stairs , Jerry Gibson, and Jude Frentz, because they Having found that the Respondent has engaged in cer- tain unfair labor practices , I find it necessary to order the Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily laid off Mack Dixon for the period of October 13 through 21, 1975, I find it necessary to order the Respondent to make whole Dixon for the earnings lost by reason of his discriminatory layoff, with backpay computed on a quarterly basis, plus interest at 6 percent per annum , as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962), for the period of time set forth above. The Respondent discriminatorily reduced the amount of work and manipulated the driving assignments of Moore, Dixon , Stairs, Gibson, and Frentz . I find it necessary to order the Respondent to make them whole for the income they lost, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation