Sam Tanksley Trucking, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1972

198 N.L.R.B. 312 (N.L.R.B. 1972)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sam Tanksley Trucking, Inc. and District No. 9,
International Association of Machinists and Aeros-
pace Workers , AFL-CIO, and Teamsters , Chauf-
feurs, Warehousemen and Helpers Local Union
No. 574, Jointly. Case 14-CA-6324
July 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 7, 1972, Trial Examiner Henry L.
Jalette issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, except as modified herein.
We do not adopt the Trial Examiner's 8(a)(1)
findings of threats to and interrogation of Looney
based on Looney's pretrial affidavit. Looney could
not remember anything about the facts set forth in
his affidavit after reading it at the hearing. Nor could
he recall on the witness stand in detail what had
occurred at his home the evening before he testified.
Because of Looney's thus demonstrated unreliability
as a witness, we do not credit Looney's testimonial
assertion that the affidavit was nonetheless accurate
when he gave it.'
Accordingly, we shall so modify the Trial Examin-
er's Conclusions of Law and recommended Order.
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 7 from the Trial Examiner's
Conclusions of Law and substitute therefor the
following:
1',7. By creating the impression of surveillance of its
employees' union activities, Respondent engaged in
and is engaging in unfair labor practices within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that Respondent, Sam Tanksley
Trucking, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Order, as so modified:
1. Delete subparagraphs (a), (b), and (c) from
paragraph 1 of the Trial Examiner's recommended
Order and reletter the succeeding subparagraphs
accordingly.
2. Substitute the attached notice for the Trial
Examiner's notice.
I Members Fanning and Jenkins do not , however, find the affidavit
inadmissiblePer se. Looney was available for cross -examination , and the
affidavit, at the time it was made, constituted a recording of Looney's
recollection of events at that time only 16 days old and considerably fresher
than his recollection at the hearing In these circumstances , Members
Fanning and Jenkins think the Trial Examiner was correct in receiving the
affidavit in evidence, for what it was worth.
In the circumstances here presented , Chairman Miller believes the use of
such an affidavit is an impermissible use of hearsay evidence
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence , the National Labor
Relations Board has found that we have violated the
law and has ordered us to post this notice.
WE WILL bargain collectively , upon request,
with District No. 9, International Association of
Machinists and Aerospace Workers , AFL-CIO,
as the exclusive representative of all our employ-
ees in bargaining unit A with respect to rates of
pay, wages , hours of employment , and other
terms and conditions of employment and, if an
understanding is reached , embody such under-
standing in a signed agreement . Bargaining unit A
is:
All mechanics employed by Sam Tanksley
Trucking, Inc., at its Cape Girardeau facili-
ty, excluding office clerical employees, pro-
fessional employees, guards, and supervisors
as defined in the Act, and all other employ-
ees.
WE WILL bargain collectively, upon request,
with Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 574 as the exclusive
representative of all our employees in bargaining
unit B with respect to rates of pay, wages, hours
of employment, and other terms and conditions
of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. Bargaining unit B is:
All washers, greasers, and tiremen employed
by Sam Tanksley Trucking, Inc., at its Cape
Girardeau facility, excluding office clerical
198 NLRB No. 45
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sam Tanksley Trucking, Inc. and District No. 9,
International Association of Machinists and Aeros-
pace Workers, AFL-CIO, and Teamsters, Chauf-
feurs, Warehousemen and Helpers Local Union
No. 574, Jointly. Case 14-CA-6324
July 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 7, 1972, Trial Examiner Henry L.
Jalette issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, except as modified herein.
We do not adopt the Trial Examiner's 8(a)(1)
findings of threats to and interrogation of Looney
based on Looney's pretrial affidavit. Looney could
not remember anything about the facts set forth in
his affidavit after reading it at the hearing. Nor could
he recall on the witness stand in detail what had
occurred at his home the evening before he testified.
Because of Looney's thus demonstrated unreliability
as a witness, we do not credit Looney's testimonial
assertion that the affidavit was nonetheless accurate
when he gave it.'
Accordingly, we shall so modify the Trial Examin-
er's Conclusions of Law and recommended Order.
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 7 from the Trial Examiner's
Conclusions of Law and substitute therefor the
following:
117. By creating the impression of surveillance of its
employees' union activities, Respondent engaged in
and is engaging in unfair labor practices within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that Respondent, Sam Tanksley
198 NLRB No. 45
Trucking, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Order, as so modified:
1. Delete subparagraphs (a), (b), and (c) from
paragraph 1 of the Trial Examiner's recommended
Order and reletter the succeeding subparagraphs
accordingly.
2. Substitute the attached notice for the Trial
Examiner's notice.
1 Members Fanning and Jenkins do not , however, find the affidavit
madmissibfeper se. Looney was available for cross-examination , and the
affidavit, at the time it was made , constituted a recording of Looney's
recollection of events at that time only 16 days old and considerably fresher
than his recollection at the hearing. In these circumstances , Members
Fanning and Jenkins think the Trial Examiner was correct in receiving the
affidavit in evidence, for what it was worth.
In the circumstances here presented , Chairman Miller believes the use of
such an affidavit is an impermissible use of hearsay evidence.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we have violated the
law and has ordered us to post this notice.
WE WILL bargain collectively, upon request,
with District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO,
as the exclusive representative of all our employ-
ees in bargaining unit A with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement. Bargaining unit A
is:
All mechanics employed by Sam Tanksley
Trucking, Inc., at its Cape Girardeau facili-
ty, excluding office clerical employees, pro-
fessional employees, guards, and supervisors
as defined in the Act, and all other employ-
ees.
WE WILL bargain collectively, upon request,
with Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 574 as the exclusive
representative of all our employees in bargaining
unit B with respect to rates of pay, wages, hours
of employment, and other terms and conditions
of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. Bargaining unit B is:
All washers, greasers, and tiremen employed
by Sam Tanksley Trucking, Inc., at its Cape
Girardeau facility, excluding office clerical
SAM TANKSLEY TRUCKING 313
employees, professional employees, guards,
and supervisors as defined in the Act, and all
other employees.
WE WILL NOT tell employees we know who is
attending union meetings.
WE WILL NOT discharge employees because of
their activities on behalf of District No. 9,
International Association of Machinists and
Aerospace Workers, AFL-CIO; Teamsters,
Chauffeurs, Warehousemen and Helpers Local
Union No. 574; or any other labor organization.
Since the Board found that we violated the law
when we fired Arthur Terry, Eric Robinson,
Robert York, Robert Proffer, and J. R. Bradshaw,
WE WILL offer them their jobs back (except for
Eric Robinson and Robert Proffer who already
have their jobs back) or, if such jobs no longer
exist, WE WILL offer them substantially equivalent
employment, and WE WILL pay them for any loss
of pay they may have suffered because we fired
them.
You are free to become and remain members of the
District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO; Teamsters,
Chauffeurs, Warehousemen and Helpers Local
Union No. 574, or any other labor organization.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This proceeding was
initiated by a charge filed by District No. 9, International
Association of Machinists and Aerospace Workers,
AFL-CIO, and Teamsters, Chauffeurs, Warehousemen
and Helpers Local Union No. 574, Jointly (hereinafter
referred to jointly as the Unions; separately, as Machinists
Union or Teamsters Union), on June 28, 1971,1 and
amended on August 4. Pursuant to the charge, as amended,
complaint issued on August 13 alleging that Respondent
had engaged in conduct independently violative of Section
8(a)(1) of the Act and had discharged six employees in
violation of Section 8(a)(1) and (3) of the Act. The
complaint, as amended at the hearing, further alleged that
the Unions were each the exclusive representative of
Respondent's employees in separate appropriate units, and
that a bargaining order was necessary to remedy the 8(a)(1)
and (3) violations.
On October 13 and 14, a hearing was held at Cape
Girardeau, Missouri.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by
General Counsel and Respondent, I make the following
findings of fact, conclusions of law and recommendations:
FINDINGS OF FACT
1. INTRODUCTION
SAM TANKSLEY
TRUCKING, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above -named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced-
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Room 448 , 210 North 12th Boule-
vard , St. Louis , Missouri 63101, Telephone
314-622-4167.
i Unless otherwise noted all dates are 1971
2 Commerce is not in issue The complaint alleges , the answer admits,
Respondent is a Missouri corporation with its principal
office and place of business at Cape Girardeau, Missouri.
Respondent is engaged in the furnishing of interstate
trucking services from terminals in various States of the
United States, including a terminal at Cape Girardeau, the
only terminal involved in this proceeding.2 There are three
buildings at the terminal. One is an office building, another
is a repair shop, and the other is a service building.
Although incorporated, Respondent is more like a
partnership, with Sam Tanksley as owner of half of its
shares, and another individual owning the other half.
Charles Harris, who owns and operates several businesses
in Cape Girardeau, is manager of Respondent' s business.
On June 22, several employees met with representatives
of the Unions to discuss organization of the employees of
Respondent, and eight employees signed cards applying
for membership in either the Machinists Union or the
Teamsters Union. The following morning, representatives
of the Unions sought out Hams and they were informed,
by an associate of his in one of his other enterprises, that
Harris was away on a fishing trip.
On Thursday, June 24, after finishing work, five
employees were told by Foreman John Mosier that they
were being laid off: Arthur Terry, Eric Robinson, Bobby
Proffer, J. R. Bradshaw, and Robert York. All but
Bradshaw had signed cards on June 22. Bradshaw had
signed a card on the morning of the 24th.
and I find that Respondent meets the Board 's gross revenue standard of
$50,000 for the interstate transportation of freight.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 15, Michael Sprenger, who had attended the
meeting of June 22 and had signed a card, was discharged.
General Counsel contends that the six discharges were
attributable to the union activities of the employees. He
also alleges that in the period following the discharges
Respondent engaged in certain acts of interference,
restraint , and coercion.
ii. THE ALLEGED INTERFERENCE, RESTRAINT, AND
COERCION
A. The Testimony of Robert Proffer
Proffer was one of the five employees terminated on
June 24 . About a week later , he went to see Harris about
vacation pay due him from another company owned or
managed by Harris, by which he had been employed
before going to work for Respondent . In the course of this
conversation , Harris is said to have made the following
statements:
(a) He said something about, one time he said it wasn't
going to win , or something.
That there is no way in the world it can win it.
That it wasn't going to win the case or win it. That's
about what he said.
(b) He told me once he knew everything that went on in
the room when everybody was there.
The statements under (a), which Harris did not deny
making, are alleged to be violative of the Act in that they
are said to have suggested to an employee the futility of
designating or selecting the Union as bargaining agent.
It is clear to me that Proffer did not recall Harris'
remarks. What he did remember , as recited above, is so
ambiguous that it cannot support a finding of an unfair
labor practice . Accordingly, I shall recommend dismissal
of paragraph 5(f) of the complaint.
The complaint alleges that Harris created the impression
of surveillance "by telling an employee that Harris knew
about the Union and which employees started and
supported the Union ." The testimony of Proffer quoted in
(b) above is the sum total of General Counsel 's proof of
this allegation . General Counsel states in his brief that
Harris told Proffer that he knew everything that had gone
on in the room "at the Holiday Inn," thus embellishing the
testimony beyond what the witness said.
However , the embellishment appears to reflect accurate-
ly the understanding of both Proffer and Harris about
what room Harris was referring . Harris admitted telling
Proffer that someone had told him who was in the room,
but denied saying he knew everything that went on in the
room. Proffer 's testimony was so sketchy that I cannot give
it any weight where it differs from the testimony given by
Harris. On Harris ' own testimony , however, a finding is
warranted that he created the impression of surveillance
when he told Proffer that someone had told him who was
in the room . Such a remark has a tendency to coerce
employees in the exercise of their Section 7 rights because
it might well instill in them a fear of reprisal . N.L.R.B. v.
Terry Industries of Virginia, 403 F.2d 633 (C.A. 4, 1968).
Respondent 's principal contention with regard to this
allegation is that at the time Harris made the remark,
Proffer was not an employee . He had been discharged on
June 24 and had approached Hams not as an applicant for
employment but about vacation pay from another employ-
er.
However, as will appear below , I find that Proffer was
discriminatonly discharged as alleged by General Counsel.
Accordingly, he was still an employee within the meaning
of Section 2(3) of the Act at the time of Harris ' statements.
But even if Proffer had been lawfully discharged , I would
find that he was an employee within the meaning of
Section 2(3) of the Act when he had his conversation with
Harris. The Board has long held that the term "employee"
in Section 2(3) of the Act includes "any employee and shall
not be limited to the employees of a particular employer"
and includes "any member of the working class ." E.g.,
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177; Briggs
Manufacturing Company, 75 NLRB 569. In this case, not
only was Proffer a member of the working class , but even
more, despite the fact he was not literally an applicant for
employment when he had this conversation with Hams, he
was a prospective applicant and, in fact , was recalled to
work shortly after this conversation . On the facts herein,
assuming Proffer had been lawfully discharged on June 24,
I find Proffer was an employee at the time of Harris'
statement to him conveying the impression of surveillance
and that Respondent thereby violated Section 8(a)(1) of
the Act.
B. The Testimony of Paul Mirly
The complaint alleges that on or about July 1, Harris
interrogated an employee by asking him if he had sent in a
card to the Union . The allegation is based on the testimony
of employee Paul Mirly that about a week to 10 days after
the termination of five employees on June 24, he had a
conversation with Harris about purchasing an automobile
during which Harris said he would like to talk to him about
the Umon. Harris said he understood Mirly had not signed
a card . Mirly replied , "I'm afraid I have ." Hams said he
thought that Mirly would have been the last one to sign
and was so evidently disappointed that Mirly told him that
it looked like he was going to have to hunt for another job.
Harris told him no, that he had a job for him, and if he had
no work with Respondent, there would be work for him at
some other place operated by Hams . In view of this
express assurance against reprisal , I see no basis for
holding that the interrogation was coercive and I shall
recommend dismissal of the allegation. Ben Duthler, Inc.,
157 NLRB 69 (interrogation of Pierce).
C. The Testimony of Harold Looney
Paragraphs 5a through 5b of the complaint contain
allegations of independent 8(a)(l) conduct on the part of
Harris directed to an employee. In support of these
allegations , General Counsel called as a witness Harold
Looney, an employee of Respondent. Upon examination
by General Counsel, Looney admitted to a conversation
with Harris, but he could not recall anything about the
conversation. However , he identified a prehearing state-
ment he had given to a Board investigator and acknowl-
edged that the statements he had made therein were true.
The statement was offered into evidence as the past
SAM TANKSLEY TRUCKING 315
recollection recorded of the witness and it was received
into evidence over objection as General Counsel's Exhibit
4.3 On the basis of statements contained therein, General
Counsel contends that a finding is warranted that
Respondent violated Section 8(a)(1) of the Act as alleged
in paragraphs 5a through 5d of the complaint.
According to Looney, on June 29 he approached Harris
about ordering some tires. After this matter was disposed
of, Harris remarked there was something he wanted to talk
to him about. He said there was a rumor about a union
going around and he asked Looney if he had been
approached. Looney said he had heard about it, but he
said that he had not been approached. (This was untrue.
Looney had signed a union card on June 24.) Harris said,
"Well, I want you and Micke [Sprenger] to stay out of it."
Looney replied that he didn't know about that, if Hams
was fair with them, they would be fair with him. Hams
pointed out that he had given Looney a job, and Looney
countered that he could get a job anywhere. Harris then
said, "If the union does get in, I'll close the place down,
move it out of the state, and lay everybody off." Looney
repeated that he'd be fair with Harris if Harris was fair
with him. Harris said it would be hard to get another tire
man and another man on the grease rack, but he still
expected Looney and Mike to stay out of the union deal.
Harris denied telling Looney that if the Union got in he
would close the place and move it out of State. He
corroborated the fact of a conversation with Looney and
that he remarked he had "heard there were some union
negotiators going [around]." Looney confirmed the fact
and said he wanted no part of it, that he didn't like unions,
and they could do nothing for him. Harris remarked that
he had unions in some of his other companies that he could
live with, but it would be hard on Respondent to have a
union because of the truckdrivers (Respondent employs
over 300 truckdnvers) and he didn't think that Respondent
could live with a union.
The issue presented by the foregoing is the usual one in
Board cases: who told the truth. Normally, however, the
conflict in testimony arises from the testimony of the
witnesses given at the hearing. Here, the conflict is between
Harris' sworn testimony before me and Looney's prehear-
ing statement which he swore before me was true at the
time he gave it. In my judgment, this circumstance does
not alter the nature of the credibility issue : rather it is one
of the circumstances that I have been forced to weigh in
.deciding credibility. It is a nettlesome circumstance. In the
first place, I cannot believe that Looney could not
remember any part of his conversation with Harris. Surely,
upon his reading of the prehearing statement, he must have
remembered more than he would admit to. In my
judgment, he was not truthful when he claimed to be
unable to recall what it was Harris said to him about the
Union. I believe he was afraid of losing his job and this was
why he professed a lack of recollection. In my judgment,
his preheanng statement contained a true account of his
3 In its brief, Respondent has renewed its objection to the receipt into
evidence of Looney's affidavit I adhere to the ruling I made at the hearing
In my judgment, Looney's affidavit fulfills the requirements for receipt into
evidence of a preheanng written statement as past recollection recorded
Looney verified the correctness of the contents of the statement and the
prehearing statement was prepared on July 15, only 16 days after the
conversation with Harris and I credit it. This conclusion is
based on the absence of any showing that Looney had any
motive to lie when he gave his prehearing statement and
the fact that despite his fear of testifying Looney confirmed
the truth of his prehearing statement. Moreover, Harris'
own testimony is generally confirmatory of Looney's. The
only significant difference is his denial of a threat to close
the place down; yet, even there, Harris' testimony that he
didn't think Respondent could live with a union is
suggestive of a threat to shut down. For these reasons, and
because I have concluded that Harris could not be credited
in several other matters, I do not credit this denial and find
that he made the statements attributed to him by Looney.
These statements consisted of interrogation, accompanied
by an express threat to close the place down, an implied
threat that Looney and Sprenger could be replaced, and a
direction that they stay out of the Union. Those statements
were all violative of Section 8(a)(1) of the Act as alleged in
paragraphs 5a through 5d of the complaint.
III. THE ALLEGED DISCRIMINATORY DISCHARGES
A. The Discharges of June 24
As previously described, a group of 10 or 11 of
Respondent's employees met with union representatives at
a local motel on June 22 and 8 of them signed applications
for umon membership either in the Teamsters Union or the
Machinists Union. Two days later, four of these employ-
ees, plus an employee who signed a membership applica-
tion card on June 24, were discharged. These discharges
and a later discharge are alleged to have been motivated by
these union activities and therefore violative of Section
8(a)(3) and (1) of the Act.
At the outset then, it is seen that the Trial Examiner has
the difficult task of determining Respondent's motive in
discharging six employees.
... These discharge issues are difficult and sensi-
tive when termination coincides with union activity.
The employee and the Board present plausible cause
for continued employment-a good record, superior
comparative production, recent change in assignment,
lack of individual warning, and the like-and would tie
his discharge solely to union sympathy or activity
known to the employer. Management in turn presents
equally plausible cause for the discharge-under
production, production not in line with ability, trouble-
making, attitude, undesirable effect on fellow employ-
ees, similar contemporaneous discharges on non-umon
employees, and the like,-and would tie the discharge
to time-honored and accepted management preroga-
tives wholly unrelated to union activity or sympathy
The trier of fact must choose between these two. N.L.R.B.
v. Byrds Manufacturing Corporation, 324 F.2d 329, 332-333
(C.A. 8).
conversation with Harris described therein In my judgment, this was
sufficiently close in point of time to the date of the conversation to meet the
test that a past recollection must have been recorded at or near the time of
the events 3 Wigmore, Evidence, Sec 734, et seq (Chadbourn rev 1970), cf
Airfan Radio Corporation, Lid, d/b/a KFSD-TV, I I I NLRB 566, 571
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In making his choice, the Trial Examiner must nearly
always rely on circumstantial evidence. "Actual motive, a
state of mind, being the question, it is seldom that direct
evidence will be available that is not also self-serving. In
such cases, the self-serving declaration is not conclusive;
the trier of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful motive
could be brought to book. Nor is the trier of fact-here the
trial examiner-required to be more naif than a judge."
Shattuck Denn Mining Corp. v. N. L. R. B., 362 F.2d 466, 470,
(C.A. 9).
The task of determining Respondent's motive in this case
is rendered doubly difficult by the circumstance that there
is no direct evidence of company knowledge of the
employees' union activities before the discharges of June
24. Thus, Harris testified that he made the decision and
issued instructions to discharge the alleged discriininatees 1
week before the discharges were effected, and that he had
no knowledge of any union activity among Respondent's
employees at the time he made the decision. (There is no
evidence there was any union activity at the time he
assertedly made the decision.) On the date of the
discharges, Harris was in Canada having left Cape
Girardeau either the morning of the discharges or the day
before.4
But just as the self-serving declaration of lawful motive is
not conclusive, the declaration of lack of knowledge is not
conclusive. It is settled law that proof of knowledge of
union activity, like proof of motive, may be established by
circumstantial as well as by direct evidence.5 Moreover, the
same circumstances may support both an inference of
company knowledge and actual motive. That is the
situation in this case. Several circumstances support both
an inference of company knowledge and a finding of
unlawful motivation. These circumstances refute the
testimonial assertions of Harris and compel me to discredit
not only his denial of knowledge of the union activities of
the employees but also his asserted reasons for the June 24
discharges. I cannot fault Harris' demeanor on the witness
stand; he appeared to be honest and candid. However,
upon review of his testimony, I find that it was far from
precise; rather, contrary to impressions I formed at the
hearing, I find his testimony vague and significantly
lacking in details. But the point at which my credulity was
4 The date of Harris' departure for Canada is uncertain At one point he
said he left for Canada on Friday, the same day as the discharges. When it
was suggested to him that the employees were discharged on Thursday, he
said then he must have left for Canada on Thursday At another point, he
admitted he might have left on Wednesday The question with which his
date of departure was interrelated, namely, the date of the discharges, was
also left in an indeterminate state The discharged employees testified they
were discharged on Thursday, June 24, whereas Foreman Mosier testified
he discharged them on Friday Thus, as to two questions that seemingly
could have been resolved with certitude by either party, the record was left
in an indeterminate state Apparently neither party regarded the exact dates
as critical While they are not critical to a decision, analysis of the case
could have been simplified by fixing both the date of Harris' departure for
Canada and the date of the discharges Certitude on these points would
have helped in assessing the question of company knowledge and the motive
for the discharges (Thursday marked the end of the workweek, and whether
the discharges occurred then or a day later could have been a factor in my
decision) In any event, since Respondent did not contest the date of the
discharges, I accept the testimony of the employees as more reliable than
that of Mosier and throughout my decision use June 24 as the date of the
strained beyond the breaking point was where Hams
testified how it happened that five employees were
discharged at the same time.
Each of the five alleged discnminatees discharged on
June 24 were discharged for a different reason. Thus,
Proffer was assertedly discharged because a new wash rack
had arrived for installation; Bradshaw because work had
been completed on a new office building; York because he
was a careless employee; Terry and Robinson because they
were not satisfactory employees. In other words, each
discharge represents a separate case. A logical question is
why was there a collective discharge. What single incident
or common factor led to the decision to fire all five at the
same time? Harris' only explanation was that "I don't
consider myself vicious but I always try to group a few
people together if there is anybody to be let go and let
them go at one time so as they can go home and say, well,
we or some of us got laid off instead of just I did, and it
makes it easier as far as home is concerned." On cross-
examination, Harris gave one example of the past exercise
of his considerate policy, but one could not tell from the
example given whether it presented a similar situation.
More importantly, Harris contradicted his own policy
when he discharged Michael Sprenger 3 weeks later.
Moreover, his conduct in this matter contrasted sharply
with the treatment he generally accords employees under
his management. As previously indicated, Harris owns
several businesses in Cape Girardeau, and he frequently
refers an employee about to be laid off by one of his
businesses to employment with another. Several of Res-
pondent's employees, including Sprenger, Proffer, and
Bradshaw, were sent to Respondent from one of Hams'
other businesses. In this case, he not only did not offer the
discharged employees other employment, or, if he had
none, explain that he had none, he caused them to be
discharged summarily; 6 so summarily, in fact, that the
foreman who was instructed to notify the dischargees did
not receive notice of the contemplated action until a few
hours before the discharges, and was left so shorthanded
by the discharge of Terry and Robinson that it was
necessary to contract out work previously performed on
Respondent's premises.7 "The abruptness of a discharge
and its timing are persuasive evidence as to motivation."
N L.R.B. v. Sutherland Lumber Co., 452 F.2d 67 (C.A. 7,
1971). It is noteworthy that Harris' testimony that he
discharges
5 Wiese Plow Welding Co, Inc, 123 NLRB 618, Piezo Manufacturing
Corp, 125 NLRB 686, enfd 290 F 2d 455 (C A 2); N L R B v Tru-Line
Metal Products Company, 324 F 2d 614 (C A 6), cert denied 377 U.S 906
6 Harris did assist Proffer in obtaining other employment, but this was
some time after he had been discharged.
r The foreman in question is John Mosier Respondent contends he is
not a supervisor within the meaning of Section 2(11) of the Act The
evidence indicates otherwise Every employee referred to Mosier as his
supervisor Several reported to him when first hired and he is the only
supervisor who is always on the premises Because Harris manages several
companies besides Respondent, he is frequently absent, and Sam Tanksley
did not have an office on the premises at the time of the events and is not
shown to have played any part in supervision of the shop employees All the
evidence indicates that it is Mosier who assigns work to employees and is
responsible for the day-to-day operation of the shop and garage While he
has no authority to hire or fire , it is clear that his direction of employees
requires the use of independent judgment and it is a responsible direction of
employees within the meaning of Section 2(11) of the Act.
SAM TANKSLEY TRUCKING 317
instructed Sam Tanksley to discharge the five employees 1
week before the discharges were effected was not corrobo-
rated by Sam Tanksley who for some unexplained reason
was not called as a witness.
When one couples the fact that the discharges occurred
48 hours after the union meeting and the signing of union
membership application cards with the facts that all the
employees discharged were card signers, that the discharg-
es came without advance warning, that the reasons
asserted for their discharges were supported only by vague
and generalized accusations of unsatisfactonness, and the
lack of any credible explanation for the tinung of the
discharges, the only plausible inference that can be drawn
is that Respondent learned of the employees' union
activities and that the discharges of June 24 were
motivated by such activities.8
The foregoing are general considerations which apply
with equal force to all the discharges of June 24. However,
there are some factual differences in the case of each which
require presentation for a better understanding of my
reasons for concluding that the discharges were unlawfully
motivated.
Arthur Terry had worked for Respondent since April
1970. He worked as a truckdnver until October 1970, when
he was transferred to the shop as a mechanic at his request.
He worked as a mechanic until his discharge on June 24.
Terry testified that about 6:30 p.m. on the 24th, in the
presence of Eric Robinson, Roy Bolick, and Jerry Henly,
Mosier told him he was laid off. When Terry asked why,
Mosier replied the only reason he could give was that he
had been told the office force was being moved from its old
location to the new office building and they would need
less help and they were cutting down because it would be
better organized. Terry said that was not a satisfactory
explanation and asked if he was fired or laid off. Mosier
said he was fired.
Mosier testified about discharging the employees, but he
did not really describe what it was he told the employees.
Thus, Terry's testimony is uncontradicted and I credit it.
Actually, Mosier added little to the case insofar as the
reasons for the discharges. He was not consulted about
them and learned that they were to take place only a few
hours before they occurred. Under the circumstances, his
testimony about the reasons for discharge has little value in
support of Respondent's position. The decision to dis-
charge the employees was made by Harris and it is his
reasons we must examine.
Harris' reasons for deciding to discharge Terry are not
too clear. In his explanation, he used such phrases as
"irritable towards John Mosier and Roy Bolick"; "His
work wasn't what it ought to be"; and "he became sick
from this emphysema." As to Terry's irritability and the
shortcomings in his work, Harris supplied no details, nor
did he relate these factors to any point in time. There is no
evidence he received any reprimands or warnings. Mosier,
Terry's foreman, gave essentially the same reasons, but,
like his superior, he gave no details, except that Terry
didn't get along with mechanic Roy Bolich who was senior
to him and who was teaching Terry the work.
As to Terry's illness shortly prior to his discharge, I do
not understand the import of Hams' testimony. I do not
understand whether Hams meant that Terry' s illness
rendered him unfit to do the work or that it made him
unreliable. In any event, neither he nor Mosier spoke to
Terry about it; neither asked him whether he could
continue to do the work and be depended upon to work
regularly. In fact, the only time Terry's illness surfaced as a
reason for his discharge was at the hearing herein. I cannot
accept such testimonial assertions as the real reason for
discharge. They are at odds with undisputed facts such as
the failure to notify the foreman of the proposed
terminations beforehand so that when he was instructed to
implement the decision he was upset ". . . because I didn't
know anything about it," and because he was short of men.
In other words, whatever Terry's shortcomings, he had
been retained because of a lack of better mechanics. When
Respondent discharged him, there was still a shortage of
better mechanics and Terry's shortcomings were not shown
to have interfered in any way with the performance of the
repair work required, nor was he told that his work
performance had anything to do with his discharge. The
only new factor in the picture was the union meeting on
June 22 which Terry had attended and where he had
signed a card. Under these circumstances, on the basis of
the record as a whole, including the evidence of Respon-
dent's union animus and the timing of the discharge, I find
that Respondent's asserted reasons for discharging Terry
are pretextuous and that Respondent seized upon such
reasons to conceal its motive to discharge Terry because its
employees had evidenced a desire for union representation
by their attendance at a union meeting and signing cards
on June 22.
What I have said respecting Terry's discharge applies
with equal force in the case of Eric Robinson. Robinson
had been hired in April as a mechanic. He had not
previously been employed as a truck mechanic, but he
testified, credibly, that Hams said he was willing to try him
out, without specifying any trial period. He testified,
without contradiction that he was never criticized about his
work and that when he asked Mosier on June 24 why he
was being discharged, Mosier could not give him a reason.
According to Robinson, Terry asked Mosier specifically
whether he was dissatisfied with their work and Mosier
said no. (Terry did not include this in his testimony about
the termination conversation, but he may have overlooked
it. In any event, Mosier did not contradict Robinson's
testimony.) Robinson also stated that Mosier told them
that when he asked the office what he was going to do for
mechanics in the shop, he was told they would get the work
done on the road.
8 There is direct evidence that Harris acquired knowledge of the
employees' union activities at or about the time of the discharges on June
24 Thus, on either June 23, 24, or 25 (Hams testified to each of these dates
at one point or another in his testimony, see In 4, supra) Harris left for
Canada He testified that on his arrival he called Respondent's office to
relay a message to his wife on his safe arrival He was then told that they
had fired a bunch of boys Just in the nick of time because there were union
activities going on When he asked what proof they had of this, he was told
that mechanic Roy Bolick had been badgered into signing a card Bolick
had signed a card on the evening of June 23 If Bolick informed
representatives of management on the evening of June 23, or early June 24,
Harris' knowledge could very well have preceded the discharge action at the
end of the workday , rather than followed it as he testified.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harris testified he decided to discharge Robinson
because he had been told by Mosier that Robinson had
had some trouble with some gears and with not getting
rings and the heads back properly and had proven he did
not have enough experience . Mosier confirmed that
Robinson lacked experience , but the only example of bad
work he gave was one where Robinson left a nut loose.
According to Mosier , he made reports to Hams about
Robinson 's work, but all he claims to have told him was
that Robinson was slow, but he thought Robinson might
make it . Mosier did not recommend that Robinson be
fired.
Under the foregoing circumstances , I find that Robinson
was discriminatorily discharged and that his asserted
inability to do the work was seized upon as a pretext to
discharge him because of Respondent's opposition to the
Union . Robinson 's testimony belies any contention that he
was discharged because of unsatisfactory work perform-
ance , and Mosier 's own testimony tends to support him
rather than Harris. An additional indicium of the pretextu-
ous nature of the reasons asserted for discharge is the fact
that shortly after June 24 Hams rehired Robinson. If
Robinson was not qualified on June 24 , he was no more
qualified when rehired . Harris' only explanation for
rehiring him was that it was with the understanding that
Robinson could not expect a raise and would be trained by
Mosier and Bolick , According to Harris, Robinson's rate
of pay before discharge was the same as Bolick 's and only
5 cents per hour less than Mosier's and they were
complaining about it . He felt he either had to give them a
raise or reduce Robinson 's rate of pay, something you just
don't do . The difficulty with this argument is that I don't
see how this problem was resolved by rehiring Robinson at
the same rate of pay he had received prior to his discharge
and with no raises to Mosier and Bolick . Nor am I
persuaded that it explains Hams' failure to talk to
Robinson before he fired him. Moreover , I cannot help but
note that upon rehiring Robinson, Harris pointed out to
him that if the employees went union it would be a low
blow to him. While this statement is not alleged to have
been unlawful , and, standing alone , does not appear to be
so, Robinson would have been a dullard not to conclude
that he had better not continue his adherence to the
Machinists Union.
Robert York was hired in March as a result of being
solicited by Harris for whom he had previously worked. He
was hired as a diesel engine mechanic's helper, but 3 weeks
after he started working he was assigned to help out on the
construction of a new office building doing such tasks as
helping pour concrete and painting . About a month to a
month and a half before his termination York received a
20-cent -per-hour raise . At about the same time, Harris
spoke to him about attending a "Thermo-King" school for
training on the maintenance and repair of truck refrigerat-
ing units . This was not to come about for another year
when York had more experience.
Despite this auspicious beginning , York was discharged
allegedly because he became sloppy, irritable , and hard to
get along with . Harris testified that York worked briefly as
a mechanic 's helper , and Mosier and Bolick complained
about his work , and he was moved to help out the
employee working on refrigerated units and was to be sent
to school. There was not enough work on refrigerated units
for an entire week so York would shift from that to
working on the office building. It was there that he
demonstrated such an indifferent attitude to his work and
did such sloppy work that Hams concluded he would not
make a good mechanic. He instructed Mosier not to order
any tools for York because he wasn't going to last.
I have the same difficulty with Hams' explanation of
York's discharge that I had with his explanation of the
discharge of Terry and Robinson . As with Terry and
Robinson , York was given no warning . Moreover, Harris'
assertion that York did not perform well as a mechanic's
helper for Mosier and Bolick is belied by the 20-cent raise
given to York and the promise of training for another job
involving mechanical skills. Harris' case against York
really centers around his performance as a painter on the
new office building. But this was temporary work and had
been concluded . There was no complaint about York's
performance as a trainee on refrigerated units , unless one
regards the use of terms such as "sloppy," " irritable" (a
term Harris also applied to Terry), and "hard to get along
with" as complaints . Harris' complaints about York
deserve little credence when one weighs the facts that York
was given no warning and that when he asked Mosier why
he was being terminated , all Mosier replied was he didn't
know. Under these circumstances , including the timing of
the discharge and Respondent's union animus , I conclude
that York's discharge , like that of Terry and Robinson, was
discriminatorily motivated and violative of Section 8(a)(3)
and (1) of the Act.
Robert Proffer began working for Respondent in the
spring of 1971. He washed Respondent's trucks. He
testified that Mosier discharged him about 7 p.m. on June
24 and that Mosier told him he was sorry, that it was a
shock to him. Mosier did not describe his conversation
with Proffer . He did admit , however, that he remarked he
was upset , and that "sooner or later , I knew about J. R.
[Bradshaw ] and Bob Proffer that they were going to be let
go, but I didn't know it was going to be then."
The asserted reason for the discharge of Proffer is that
Respondent had ordered a new wash rack some time
before June which was represented to it as so automatic
that it would not need Proffer's services once it was
installed . According to Harris , he told Proffer that he
would have to let him go about 30 days before he did so.
Of Respondent's position , all that is clear and undisput-
ed is the fact that it purchased a new wash rack. In all
other respects, its defense of the discharge of Proffer can
only be sustained by an uncritical acceptance of Hams'
and Moser's testimony . In view of the findings above that
Respondent seized on various pretexts to discharge Terry,
Robinson , and York, it is understandable that I cannot
accept the testimony of Harris and Mosier in this matter
also.
In my judgment, the record establishes that Respondent
ordered a new wash rack , that in anticipation of its arrival
and in the belief it would not need Proffer after its
installation it alerted Proffer he would be let go. However,
Proffer was not to be let go until after the new wash rack
was installed.
SAM TANKSLEY TRUCKING 319
Proffer testified that on June 17, a day well remembered
by him because it was his birthday, in a conversation with
Harris about some vacation pay due him, Harris told him
he was going to have to let him go in 6 weeks. The
testimony that he would be let go in 6 weeks was undemed
and I credit it .9 I deduce from this that Harris, knowing the
new wash rack would arrive in the near future and that it
would be automatic, was telling Proffer he would no longer
have any work after the new washer was installed.
Certainly, the statement is wholly at odds with Harris'
testimony that he decided I week before June 24 to
discharge Proffer and the four other dischargees, else on
June 17 he would have given Proffer 1 week's notice.
Actually, Harris never explained why he decided to
discharge Proffer I week before the 24th. Some equipment
for installation of the new wash rack had amved before the
24th, but installation had not begun, and, in fact, did not
begin until after Proffer was discharged. At the time
Proffer was discharged, he was not using the old wash rack
because it was broken. He was handwashing trucks. This
fact, and Mosier's own surprise at the timing of Proffer's
discharge, supports a finding that Proffer's discharge was
accelerated. For reasons given earlier, I conclude that the
acceleration of the discharge was due to the employees'
union activities and that Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
J. R. Bradshaw had formerly been employed by
another concern owned or managed by Harris and was
employed by Respondent in the spring of 1971. He worked
at various jobs for Respondent and at the time of his
discharge had been doing manual labor work in connec-
tion with the construction of the new office building, and
assisting Proffer washing trucks. According to Harris, some
5 to 6 weeks before Bradshaw's termination, he told
Bradshaw that it looked the the work was running out.
Hams testified that he had tried Bradshaw at three
different jobs and that with the completion of the new
office building, there was nothing left that Bradshaw could
do.
Bradshaw's is the most difficult of the cases before me. It
is undisputed that the new office building was completed
for occupancy on the weekend immediately following
Bradshaw's discharge. If, therefore, there was no other
work for Bradshaw because of his limitations, there is an
explanation for the timing of his discharge which cannot be
found in the cases of the other employees. Yet, I am
persuaded from the precipitate manner in which the
discharges were effected that he, like the other June 24
dischargees, was discharged on that date because of the
employees' union activities. In this connection, I note
Harris' admission that while he had mentioned to
Bradshaw that the work was temporary, and intimated that
the work was running out, he had not told him he would
not have a job. I note again Harris' failure to notify Mosier
of his alleged decision I week before June 24 to discharge
any of the employees and his failure to tell Bradshaw.
9 Harris described a conversation with Proffer about 30 days before his
discharge wherein he told him of the new washer, but he did not indicate
how he fixed the time of that conversation, whereas Proffer did Hams did
not indicate to Proffer how long he would have a job, but he did not deny
Proffer's testimony of 6 weeks' work
10 Sprenger's examination by General Counsel was very sketchy
Under these circumstances , I cannot divorce Bradshaw's
case from that of the other employees and I find that he
was discharged in violation of Section 8(a)(1) and (3) of the
Act.
B. The Discharge of Michael Sprenger
Sprenger was hired as a tireman by Respondent in mid-
June. He signed a union membership application at the
union meeting on June- 22. He was terminated on July 15.
According to Hams, about the same time Respondent
hired Sprenger it also hired Harold Looney as a tireman
although it did not need two tiremen. Hams told Mosier to
try both men out and keep the better of the two on tires
and assign the poorer to the grease rack. Looney turned
out to be the better and Sprenger was assigned to the
grease rack. He was not a cooperative employee and was
caught numerous times with a soda bottle in his hands
doing nothing when there was lots of work to do. For this
reason, plus the fact that Sam Tanksley's brother had
returned to work on July 9 and was working on the grease
rack, Harris decided to terminate Sprenger.
The foregoing is based on the uncontradicted testimony
of Harris which I credit.10 Based on Harris' testimony,
there is no basis for finding that Sprenger's discharge was
discriminatorily motivated. True, Sprenger had no warn-
ing, a factor I relied on in the cases of the other discharged
employees, but Sprenger's discharge was not part of a mass
discharge, and in his case the Respondent established the
existence of good cause for discharge. Under the circum-
stances, I conclude that General Counsel has failed to
establish by a preponderance of evidence that Sprenger's
discharge was discriminatorily motivated.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discharged Arthur
Terry, Robert York , and J. R. Bradshaw because of their
union activities, I shall recommend that it be ordered to
offer them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist , to substantially
General Counsel was content to elicit a "No" answer from Sprenger to a
question as to whether there had been any criticism of his work by either
Harris or Mosier This is hardly a satisfactory way of meeting Harris'
testimony about Sprenger 's lack of cooperation and loafing . If Harris was
not truthful, General Counsel could have recalled Sprenger on rebuttal His
failure to do so leads me to believe Harris was truthful in this matter
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority or
other rights and privileges, and to make them whole for
any loss of earnings they may have suffered by reason of
their unlawful discharge by payment to them of a sum of
money equal to that which they normally would have
earned as wages, from the date of their discharge to the
date of the offer of reinstatement, less net earnings, to
which shall be added interest at the rate of 6 percent per
annum in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
As to Robert Proffer and Enc Robinson, who I have
found were also discharged because of their union
activities, I shall not require Respondent to make offers of
reinstatement as they had been reinstated to their former
jobs prior to the hearing. I shall recommend, however, that
they be made whole for any loss of earnings they may have
suffered by reason of their unlawful discharge by payment
to them of a sum of money equal to that which they
normally would have earned as wages from the date of
their discharge to the date of reinstatement computed in
the same manner as set forth above.
Although the complaint does not allege that Respondent
violated Section 8(a)(5) of the Act, General Counsel has
requested that a bargaining order be issued to remedy the
8(a)(1) and (3) violations. His request is predicated on the
assertion that the Teamsters Union and the Machinists
Union were each designated by a majority of the
Respondent's employees as exclusive representative of
such employees in separate appropriate units and on the
principle, approved in N.L.R.B. v. Gissel Packing Company,
395 U.S. 575 (1969), that Respondent's unfair labor
practices were "so coercive that, even in the absence of a
Section 8(a)(5) violation, a bargaining order would have
been necessary to repair the unlawful effect of those [unfair
labor practices.]"
Relying on N. L. R. B. v. Li '1 General Stores, Inc., 422 F.2d
571 (C.A. 5), Respondent contends a bargaining order
would be inappropriate because the Unions neither
claimed a majority, nor demanded recognition, nor filed a
petition. In my judgment, the case is distinguishable. Two
days after the Union acquired a majority, they saw five of
their supporters discharged. They can hardly be faulted if
thereafter they did not demand recognition, nor filed a
petition, but instead filed the charge herein. Whether a
bargaining order should issue in this case depends on the
seriousness of Respondent's unfair labor practices.
There is no gainsaying the fact that my conclusions
herein reveal flagrant unfair labor practices. The precipi-
tate and summary discharge of five employees within 48
hours of their signing union membership application cards,
the unlawful interrogation of employees, and the threat to
close the shop down, are all actions that cannot help but
have a chilling effect on any continued exercise by
employees of Section 7 rights. The reinstatement of the
11 Cf The Loray Corporation, 184 NLRB No 57
12 Tom Ederle did not sign a card
13 Respondent asserts that the cards are not valid because they are not
unambiguous cards in that they are applications for union membership and
no authorizations to represent the employees in collective bargaining This
is not so The cards are not ambiguous The Machinists card expressly
authorizes it to act as the representative of the signatory, and the Teamsters
discharged employees and the posting of a notice to
employees are actions designed to remedy the unfair labor
practices found and will tend to dissipate the coercive
effects of such unfair labor practices. But as the Board
nearly always states in cases of unlawful discharges, such
unfair labor practices strike at the very heart of employees'
rights safeguarded by the Act. N.L.R.B. v. Entwistle
Manufacturing Co., 120 F.2d 532, 536 (C.A. 4). The
coercive effects of discharges are not easily dissipated. The
victims of such conduct may be reinstated to their former
jobs, but at a cost to them not repayable by an award of
backpay. They have suffered the anguish of a period of
unemployment. They are an example for other employees
to see of the probable consequences of selecting a union to
represent them. In my judgment, the effects of the unfair
labor practices found herein can only be repaired by a
bargaining order. Such an order is appropriate, however,
only if, as General Counsel asserts, the Unions have each
been designated as exclusive representative of employees
by a majority of the employees in each appropriate unit.ii
The unit in which General Counsel asserts a majority of
Respondent's employees designated the Machinists Union
as exclusive bargaining representative has been denominat-
ed unit A and is as follows:
All mechanics employed by Respondent at its Cape
Girardeau facility, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act and all other employees.
General Counsel contends this unit consisted of nine
employees: Arthur Terry, Roy Bolick, Paul Mirly, J. W.
Jones, Grover Morrow, Jerry Henley, Eric Robinson,
Robert York, and Tom Enderle.
Respondent does not dispute the appropriateness of a
unit of mechanics, but would include in such unit, in
addition to the nine employees named above, Gary
Tanksley and John Mosier.
I exclude Mosier because he is a supervisor. Gary
Tanksley is the son of Sam Tanksley, who owns 50 percent
of Respondent's stock. He is therefore excluded on the
authority of Foam Rubber City #2 of Florida, d/b/a
Scandia, 167 NLRB 623. In addition, the record indicates
that he enjoys privileges not enjoyed by unit employees.
I find, therefore, that as of June 22, the unit of mechanics
consisted of nine employees, and it did not increase in size
thereafter. As of June 28, all but one of nine employees in
this unit had signed union membership application cards.12
As these cards were valid authorizations of Machinists
Union to act as representative of Respondent's employ-
ees,13 for the reasons given above, I shall recommend that
Respondent be ordered to recognize the Machinists Union
as exclusive representative of Respondent's employees in
unit A, and that it bargain with it upon request.
Unit B, the second unit in which the General Counsel
seeks a bargaining order is a unit of: all washer, greasers,
and tiremen employed by Respondent at its Cape
card states the signatory voluntarily chooses and designates it as his
representative for purposes of collective bargaining , and there is no
evidence the language of the cards was "deliberately and clearly canceled
by a union adherent with words calculated to direct the signer to disregard
and forget the language above his signature " N LR B. v. Gissel Packing
Company, Inc, supra, at 606-607
SAM TANKSLEY TRUCKING 321
Girardeau facility, excluding office clerical employees,
professional employees, guards, and supervisors as defined
in the Act and all other employees.
According to General Counsel, this unit consists of six
employees: Harold Looney, Michael Carpenter, J. R.
Bradshaw, Michael Sprenger, Steve Jones, and Robert
Proffer. Respondent contends that this unit also includes
Richard Tanksley, R. Cunningham, and Frank Kelley.
Richard Tanksley is Sam Tanksley's brother. He owns
and operates a large farm and works only when it suits
him. He had worked for Respondent during the period
preceding March 19, 1971, but did not work thereafter
until July 9, 1971. In the week preceding the hearing, he
worked 2 days because he was combining beans. Mosier
testified that when Richard Tanksley is putting in his crop
"and every thing else" he is not there, and the length of
time he will be out will depend on whether it rains "or if he
wants to go fishing." As Harris stated it, "He's, of course,
Sam Tanksley's brother, and of course, you don't turn him
down." It is clear that Richard Tanksley enjoys special
privileges as a result of his relationship to Sam Tanksley
and that his interests are more closely allied with those of
management than with employees in the unit. Accordingly,
I shall exclude him from the unit.
R. S. Cunningham is janitor in Respondent's new office
building. He spends 50 percent of his time working for
Respondent and 50 percent working for another of Harris'
businesses. His hours of work are different from those of
unit employees, and it appears that he is separately
supervised and has no or limited contact with unit
employees. I conclude he does not have sufficient
community of interest with unit employees and shall
exclude him from the unit.
Frank Kelly is a cleanup man at night and a watchman.
Unlike Cunningham, his work is in the shop area and he
receives his instructions from Mosier. His duties include
checking the water in the trucks, fueling them, and picking
up tools. Under the circumstances, I conclude he has a
community of interest with the employees in the appropri-
ate unit, and I shall include him.
On the basis of the foregoing, as of June 24, there were
seven employees in the appropriate unit, four of whom had
signed Union membership application and authorization
cards (Looney, Bradshaw, Proffer, and Sprenger). That
same day, Respondent sought to destroy the Teamsters
Union's majority by discriminatorily discharging Brad-
shaw and Proffer. Such flagrant conduct was part and
parcel of similar conduct in another unit of employees
working in close proximity. The considerations that dictate
a bargaining order in Unit A are the same for Unit B, and I
shall recommend that a bargaining order issue respecting
Unit A as a necessary remedy to repair the effects of
Respondent's unfair labor practices.
As I previously noted, the unfair labor practices
committed by Respondent strike at the very heart of
employee rights safeguarded by the Act. I shall therefore
recommend that Respondent be placed under a broad
order to cease and desist from in any manner infringing
14 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
upon the rights of employees guaranteed in Section 7 of the
Act. N.L.R.B. v. Entwistle Manufacturing Co., supra.
CONCLUSIONS OF LAW
1. Sam Tanksley Trucking, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, and Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union No.
574, are each labor organizations within the meaning of
Section 2(5) of the Act.
3. All mechanics employed by Respondent at its Cape
Girardeau facility, excluding office clerical employees,
professional employees, guards and supervisors as defined
in the Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. All washers, greasers, and tiremen employed by
Respondent at its Cape Girardeau facility, excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act, and all other employees,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is the exclusive
representative of the employees of Respondent in the unit
described in paragraph 3 above within the meaning of
Section 9(a) of the Act.
6. Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 574 is the exclusive representative of the
employees of Respondent in the unit described in para-
graph 4 above "within the meaning of Section 9(a) of the
Act."
7. By interrogating employees about their union activi-
ties, creating the impression of surveillance of union
activities, and threatening closure of its facilities if
employees select a union as their representative for
purposes of collective bargaining, threatening to replace
employees if they select a Union to represent them, and
directing them to stay out of a Union, Respondent engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) and 2(6) and (7) of the Act.
8. By discharging Arthur Terry, Eric Robinson, Robert
York, Robert Proffer, and J. R. Bradshaw, because of their
union activities, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (3) and 2(6) and (7) of the Act.
9. General Counsel has failed to establish by a
preponderance of the evidence that the discharge of
Michael Sprenger was violative of Section 8(a)(1) and (3)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 14
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Respondent, Sam Tanksley Trucking, Inc., its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
in a manner or under circumstances constituting interfer-
ence with, and restraint and coercion, of employees in
their exercise of Section 7 rights.
(b) Threatening to close its facility if employees select a
Union to represent them.
(c) Threatening to replace employees if they select a
Union to represent them and directing them to stay out of
a Union.
(d) Creating the impression of surveillance of the union
activities of its employees by telling employees it knows
who attended union meetings.
(e) Discouraging membership in, or activities on behalf
of, District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, Teamsters, Chauf-
feurs, Warehousemen and Helpers Local Union No. 574,
or any other labor organization of its employees, by
discharging employees because of their activities on behalf
thereof, or otherwise discriminating in regard to the hire or
tenure of employment or any terms or conditions of
employment of its employees.
(f) In any other manner interfering with, restraining or
coercing its employees in the exercise of their right to self-
organization to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with District No.
9, International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of all
employees in the unit described in paragraph 3 above, and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Upon request, bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers Local No. 574 as
the exclusive representative of all employees in the unit
described in paragraph 4 above, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(c) Offer Arthur Terry, Robert York, and J. R. Bradshaw
15 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
immediate and full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other rights
or privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against
them by payment to them of a sum of money equal to the
amount they normally would have earned as wages from
the date of their discharge to the date of their reinstate-
ment in the manner set forth in the section entitled "The
Remedy."
(d) Make whole Robert Proffer and Eric Robinson for
any loss of pay they may have suffered by reason of the
discrimination against them by payment to them of a sum
of money equal to the amount they normally would have
earned as wages from the date of their discharge to the date
they were reinstated in the manner set forth in the section
entitled "The Remedy."
(e) Notify the above-mentioned employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service and Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(f) Preserve and, upon request, make available to the
Board and its agents for examination and copying all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amounts
of backpay due under the terms of this Recommended
Order.
(g) Post at its Cape Girardeau, Missouri, place of
business, copies of the attached notice marked "Appen-
dix." 15 Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly signed
by the Respondent's representative, shall be posted by it
immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(h) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.i6
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not to have been sustained by a
preponderance of the evidence be dismissed.
16 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 14, in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith "