Woodline, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 863 (N.L.R.B. 1977)

WOODLINE, INC.
Woodline, Inc.; Marshall Wood, an Individual, Mar-
shall Wood d/b/a Fort Smith Cartage Company
and Carter Truck Line, Inc. and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local Union No.
373 and David G. Bassham. Cases 26-CA-6226,
26-CA-6264, and 26-CA-6314
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On April 4, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed exceptions, a supporting brief, and a
brief in reply to Respondent's exceptions.
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
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings,
findings, and conclusions 2 of the Administrative
Law Judge, to modify his remedy,3 and to adopt his
recommended Order,4 as modified herein.
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 Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Woodline Inc.; Marshall Wood; and Marshall
Wood d/b/a Fort Smith Cartage Company, Fort
Smith, Arkansas, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for the second senten-
ce in paragraph 2(d):
"Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's representatives, Marshall
Wood and Scotty Douthit, shall be posted by
Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all
places where notice to employees are customarily
posted."
2. Delete the last paragraph.
231 NLRB No. 150
3. Substitute the attached notice for that of the
Administrative Law Judge.
X The General Counsel's motion for consolidation of cases for consider-
ation before the Board is hereby denied inasmuch as the record and briefs
adequately set forth the facts and positions of the parties.
2 The Administrative Law Judge found that Respondent's obligation to
bargain with the Union arose May 24. 1976, "the date on which the Union
had attained majority status and after which the Respondent engaged in a
course of unlawful conduct to destroy the Union's majority and to preclude
a free election." Under the principles set forth in Trading Port, Inc. 219
NLRB 298 (1975), we conclude that Respondent's duty to bargain arose as
of May 25, 1976, the date on which Respondent received the Union's
recognition demand and embarked on a clear course of unlawful conduct.
Member Walther agrees with the Administrative Law Judge's conclusion
that Respondent did not violate Sec. 8(aXI) of the Act by allegedly
discharging Supervisor Redden, but does so for the reasons expressed in his
dissent in Buddies Super Markets, 223 NLRB 950 (1976).
a In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
4 In the circumstances of this case, we do not deem it necessary to invest
the General Counsel with authority to seek immediate temporary relief
under Sec. 10(e) f the Act as recommended by the Administrative Law
Judge.
Nor do Members Penello and Walther perceive any special circumstances
warranting either the posting of a notice beyond 60 days or forwarding this
Decision and making the record available to the ICC. Chairman Fanning
agrees with the Administrative Law Judge that Respondent's misconduct is
sufficiently flagrant to warrant the posting of a notice for I year and the
filing of this Decision with the ICC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the
opportunity to present evidence, the National Labor
Relations Board found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT interrogate employees concern-
ing their union membership, activities, or sympa-
thies of those of other employees.
WE WILL NOT threaten employees with termina-
tion or other reprisals if they select International
Brotherhood of Teamsters, Chauffeurs, Ware-
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housemen & Helpers of America, Local Union
No. 373, or any other labor organization as their
collective-bargaining representative, or engage in
any other union activities.
WE WILL NOT discharge employees because
they engage in union activities or support the
Union.
WE WILL NOT discourage employees from
supporting or joining the Union or any other
labor organization by any discrimination affect-
ing their tenure or conditions of employment.
WE WILL NOT suggest that it is useless to select
the Union as a bargaining representative or
suggest that employees spy on the union activities
of other employees.
WE WILL NOT refuse to bargain collectively with
the above-named Union as the exclusive collec-
tive-bargaining representative of the employees in
the appropriate collective-bargaining unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the Act.
WE WILL, upon request, bargain collectively
with Teamsters Local 373 as the exclusive
bargaining representative of all the employees in
the unit described below with respect to rates of
pay, wages, hours, and other terms and conditions
of employment, and, if an agreement is reached,
embody such understanding in a written signed
agreement. The bargaining unit is:
All local pickup and delivery drivers em-
ployed at our Fort Smith location, excluding
all office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL reinstate with full backpay to their
former jobs or, if those jobs no longer exist, to
substantially equivalent ones employees Lewis,
Tuck, Mayfield, Dillenbeck, Spicer, Montgomery,
Wolfe, and Keeling who, the Board found, were
discriminatorily discharged because of their union
activities.
WOODLINE, INC., AND
MARSHALL WOOD D/B/A
FORT SMITH CARTAGE
COMPANY
i International Brotherhood of Teamsters. Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 373.
2 In accordance with the Board's Rules and Regulations and recent
interim recommendations of the Chairman's Task Force, I asked for
proposed findings of fact and conclusions of law in this case. Instead I
received briefs.
:' The facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me at various times in late 1976 in
Fort Smith, Arkansas, upon a complaint which originally
issued on August 27, 1976, and was amended on September
27, 1976. The complaint alleged that Respondent violated
Section 8(a)(1) of the Act by various acts of coercion;
Section 8(aX3) and (1) of the Act by discriminatorily
discharging a number of employees and Section 8(aX ) by
discriminatorily discharging a supervisor; and Section
8(a)(5) and (1) of the Act by refusing to bargain with the
Union' which had obtained signed authorization cards
from a majority of the employees, and instead engaging in
unfair labor practices which require a bargaining order.
The Union had also filed an election petition but no
election was held because of the pendency of this
proceeding. All Respondents denied the critical allegations
in the complaint. At the hearing, Carter Truck Line, Inc.,
represented by counsel who appeared specially on its
behalf, entered into a stipulation with the other parties to
this proceeding that the complaint allegations against it as
a respondent be dismissed for all purposes. Upon the
explicit concurrence by counsel for the General Counsel, I
granted the motion and hereby reaffirm the dismissal as to
Carter Truck Line, Inc. The other Respondents were
represented by the same counsel. Since I hereafter find that
the corporate entities Woodline and Fort Smith Cartage
constitute a single integrated employer, and since Marshall
Wood is the owner of both enterprises, I shall refer to the
remaining respondents collectively in the singular as
Respondent.
Upon the pleadings, the entire record in this case, the
briefs of the parties,2 and from my observation of the
witnesses and their demeanor,3 I make the following:
FINDINGS OF FACT
I. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. BUSINESS OF RESPONDENT
The complaint alleges that Woodline is, and at all
material times has been, a corporation doing business in
Arkansas with an office and place of business located at
500 South Fresno Street, Fort Smith, Arkansas, where it is
engaged in the transportation of freight. It also alleges that
Woodline received $50,000 for the transportation of goods
which originated or were designated for delivery at points
outside Arkansas. Respondent answered by admitting
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.L.R.B. v. Walton Manufacturing Conmpany, 369 U.S. 404
(1962). As to those witnesses testifying in contradiction to the findings
herein, their testimony has been discredited either as having been in conflict
with the testimony of credible witnesses or because it was, in and of itself,
incredible and unworthy of belief.
864
WOODLINE, INC.
these allegations and stating, as is shown by the record,
that Woodline has additional offices located in Arkansas.
The complaint also alleges that Marshall Wood d/b/a
Fort Smith Cartage Company (hereafter Fort Smith
Cartage) is, and at all material times has been, a sole
proprietorship owned by Marshall Wood doing business in
Arkansas with an office and place of business located at
500 South Fresno, Fort Smith, Arkansas, where it is
engaged in the local pickup and delivery of freight.
Respondent's answer admits this allegation but denies the
further allegation that, since Fort Smith Cartage began
operations in February or March 1976, it has received
revenues and performed services valued in excess of
$50,000 for enterprises each of which annually handles and
ships goods valued in excess of $50,000 directly outside
Arkansas. Respondent also asserts that Fort Smith Cartage
does not come within the jurisdictional standards of the
Board and, in any event, ceased operations in mid-July
1976.
The complaint alleges that Marshall Wood is the
president of Woodline, owns 99 percent of Woodline's
stock, and is the sole proprietor and owner of Fort Smith
Cartage. Respondent admits these allegations.
The complaint also alleges that Woodline and Fort
Smith Cartage are, and at all times material have been,
affiliated businesses with common officers, ownership, and
management and constitute a single integrated business
enterprise and a single employer. Respondent denies this
allegation but admits the complaint allegation that Wood-
line is, and at all times material has been, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Evidence was taken on the single-employer issue. If
General Counsel's allegations are proven, the evidence
supports a finding that Woodline and Fort Smith Cartage
constitute a single employer within the meaning of the Act.
This means that the two firms are considered one for
jurisdictional purposes and with respect to liability,
responsibility, and remedy under the Act.4
The evidence, which is essentially uncontroverted,
supports a finding that Woodline and Fort Smith Cartage
constitute a single integrated enterprise and a single
employer within the meaning of the Act. This is consistent
with the Regional Director's finding in the representation
case involving the same Companies (Case 26-RC-5293).
Thus, the evidence shows that Marshall Wood owns all
but one share of Woodline; the remaining share is owned
by his wife, Linda. He has been the president of Woodline
since 1966 when it was incorporated. Scotty Douthit is vice
president of Woodline. David Redden was terminal
manager of Woodline in Fort Smith through June 1976.
Fort Smith Cartage, wholly owned by Wood, was formed
in March 1976 to carry on operations previously carried on
by Woodline before legal proceedings, involving the
application of the Interstate Commerce Act, resulted in
loss of Woodline's interstate rights through Fort Smith.
Fort Smith Cartage operated out of Woodline's Fort Smith
terminal with Woodline employees and equipment until its
4 See Philip David Sachs and Michael Sachs, A Partnership, d/b/a Phil's
Say-Mfart Serivce. et al., 199 NLRB 835 (1972), enfd. as modified 503 F.2d
1229 (C.A. 7, 1974): Mendenhall Trucking, Inc., 153 NLRB 1276 (1965);
demise in July 1976. The supervision, Wood, Douthit, and
Redden, remained the same. The books for both firms were
handled by Woodline's bookkeeper in Russellville, Arkan-
sas. The wage rate for the employees and their working
conditions remained the same and the employees were paid
by Marshall Wood on a Fort Smith Cartage account
instead of a Woodline account. In these circumstances, it is
clear that both firms had an interrelationship of operations,
common ownership, financial control and management,
and common centralized control of labor relations.
Accordingly, under the authorities cited above, the two
firms constitute a single integrated employer under the Act.
As will be pointed out in further detail infra, after Fort
Smith Cartage was dissolved in June or July 1976,
Woodline continued the operation of the South Fresno
Street terminal in Fort Smith. Woodline in effect resumed
its previous type of business in Fort Smith by virtue of an
agreement, with appropriate regulatory approval by the
Interstate Commerce Commission, with Carter Truck Line,
Inc. (hereafter Carter), to purchase and operate the latter's
interstate authority through Fort Smith. Consequently, I
also find that Respondent, the single integrated employer
herein, operated its facility in Fort Smith, Arkansas,
continuously, through one entity or another, after March
1976, the relevant period in this litigation.
Accordingly, I find that Woodline and Fort Smith
Cartage constitute a single integrated employer and an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates a trucking and freight business
from Little Rock to Fort Smith, Arkansas, with a terminal
located in Ozark, Arkansas, and other points in Arkansas,
including Russellville, where its home office is located.
Woodline's original authority, as of January 1971, permit-
ted it to operate between Little Rock and Fort Smith and
to serve all intermediate points, except Conway, Arkansas.
This certification was modified by an order of a United
States district court which issued in late 1975 or early 1976
and required the Interstate Commerce Commission to
make further findings in support of the Little Rock to Fort
Smith authority. The Commission thereafter modified
Woodline's authority in order to prevent it from operating
as a certified carrier to and from Fort Smith. This was a
significant blow to Respondent because Fort Smith is
considered a gateway city for interstate traffic to points
west.
As a result of these decisions, on March 5, 1976,
Respondent entered into a lease agreement to operate the
interstate and intrastate operating authority of Carter as
well as Carter's equipment. The object of this arrangement
was to find a permanent resolution to the loss of
Woodline's authority from Ozark to Fort Smith. Carter,
which had a terminal on Ninth Street in Fort Smith, had
this authority but was apparently in financial difficulty. On
Sakrete of Northern California, Inc. v. N.LR B., 332 F.2d 902, 94-907 (C.A.
9, 1964). cert. denied 379 U.S. 961 (1965).
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 14, 1976, the parties entered into a permanent lease
agreement in effect embodying the same terms as existed in
the earlier agreement. The lease agreements were the basis
for first a temporary, and then a permanent, application
with the Interstate Commerce Commission to operate
Carter's authority. The application for temporary authority
was filed on May 16, 1976.
As part of an interim solution to provide for continuity
of Respondent's Fort Smith operations, Respondent,
through its agent, Marshall Wood, did two things. First,
upon advice of transportation counsel, he formed Fort
Smith Cartage to pick up and deliver freight in the
commercial zone of Fort Smith. This firm utilized Wood-
line's terminal, employees, and equipment, and performed
operations previously performed by Woodline. The firm
was designed to substitute for the lack of authority for
Woodline to operate into Fort Smith. In addition, on
March 11, 1976, Respondent entered into an interchange
agreement with Carter. The interchange agreement provid-
ed that Respondent would have its interstate freight
transported between Ozark and Fort Smith by Carter.
Thus Fort Smith Cartage was able to handle freight to and
from an interchange point with Carter. This maintained
Respondent's interstate business into and out of Fort
Smith.
On June 11, 1976, the Interstate Commerce Commission
issued a decision granting Respondent the right to lease
Carter's motor carrier properties and operating authority
pursuant to its temporary application and in accordance
with the applicable lease agreements. The permanent
application is still pending decision by the Interstate
Commerce Commission.
It was stipulated by the parties that Carter was an
existing truckline until the formal lease of its operating
rights to Woodline. As indicated above, the lease was first
signed in March 1976. Thereafter, Carter ceased doing any
business except for the purpose of receiving the lease
payments as required under the terms of the lease
agreement. Apparently there was a transition period
wherein the Carter equipment and business was being
operated both at Carter's Fort Smith terminal and at
Respondent's terminal. After June 15, 1976, however,
Carter ceased to carry on any operations at its terminal in
Fort Smith, according to the credited testimony of Carter
Board Chairman William Sexton.
Fort Smith Cartage was dissolved as an entity in late
June or early July, 1976. Respondent's witnesses testified
that this dissolution took place on July 15, 1976. Fort
Smith Cartage had been operating for about 4 months and
was dissolved because Woodline was granted temporary
authority to operate Carter's authority. Respondent kept
operating in one form or another out of its South Fresno
Street terminal during the period from March 1976 through
July 1976, and thereafter, essentially uninterrupted.
There is also some testimony by Respondent's top
officials, Marshall Wood and Scotty Douthit, concerning
the relationship between Carter and Respondent in this
period. Sometime after the lease agreement between Carter
and Woodline, Wood and Carter's representative, Sexton,
made arrangements to open a separate checking account
under the name "Carter Truck Line." Wood testified he
was not an officer or an employee of Carter. This bank
account was apparently used by Wood to deposit income
from collected freight bills under the Carter operation
being handled by Respondent. It was also used to pay bills
and the wages of Respondent's employees working out of
the South Fresno Street terminal. There is evidence that
Wood signed one of these checks, apparently for the wages
of one of Respondent's drivers, on July 22, 1976. Respon-
dent also paid Terminal Manager Al Mathis, who was
hired in early July 1976, on this Carter account in July and
August 1976. Thus, the Carter checking account was
utilized by Wood at least through this period.
Although the thrust of the testimony of Wood and
Douthit seems to be that Carter and not Respondent had
control over the business it had leased to Woodline and
over Woodline employees who did this work in June and
July 1976, it is clear not only from the stipulation recited
above, but from the testimony of Sexton, whom I credit,
that Carter had no control whatsoever over the labor
relations policies of Respondent. Nor did Carter have any
control over the labor relations policies concerning the
employees working on routes originally under Carter's
authority after June 18, 1976.
I found Marshall Wood, based on his demeanor and the
self-serving attempts in his testimony to escape liability for
the actions taking place at his terminal on South Fresno
Street in June and July 1976, to be a wholly unreliable
witness. For example, he claimed not to know how the
terminal was operating and who was hired and fired there.
Aside from the inherent implausibility of this testimony, it
is clear that he participated in the hiring of Mathis and the
rehiring of an employee, Carl Dillenbeck. He also sent his
vice president to reside in Fort Smith for several months in
mid-1976 to supervise the terminal. Wood also claimed
that he had an oral agreement with Carter not to pay
employees he hired to perform Carter's former work more
than a certain amount per hour and that, even though the
employees were conducting Carter's former business at his
South Fresno Street terminal and paid by him, they were
Carter employees. Yet Sexton's credited testimony shows
that such an arrangement was not made and Carter had no
control over employees working at Respondent's South
Fresno Street terminal. This testimony was not the
testimony of an unsophisticated man, as Respondent's
counsel attempted to show at the hearing, but rather, from
my observation of his demeanor, the result of a deliberate
effort to evade the consequences of truthful answers. I also
noted that Wood was argumentative in his responses to a
number of questions and extremely reluctant to give
straightforward and candid answers. I therefore do not
credit his testimony.
Douthit's testimony was likewise self-serving and evasive
on this and other issues. Based on his demeanor I discredit
his testimony. He as well as Wood insisted that Respon-
dent was not hiring or supervising employees in June and
July at the South Fresno Street terminal. This was contrary
to the facts and other credited evidence. He also insisted
that Carter set guidelines as to what could be paid to new
employees. However, no guidelines appeared in writing
and at least one employee was hired for more than the
guideline figure alleged. Finally, I have specifically discre-
866
WOODLINE, INC.
dited his evasive and unreliable testimony elsewhere in this
Decision.
B. The Organizatonal Activity and Respondent's
Interference
In May 1976, the employees at Respondent's South
Fresno Street terminal undertook organizational activities
on behalf of the Union. All seven employees of Respon-
dent at this time signed union authorization cards. They
were: Paulie Mayfield, Tommy Spicer, Larry Tuck, Carl
Dillenbeck, Robert Lewis, Ricky Wolfe, and Paul Mont-
gomery. On May 24, 1976, the Union wrote a letter to
Respondent stating that it represented a majority of the
employees and demanded recognition. Respondent de-
clined by letter which was not made part of the record but
was attached to the General Counsel's brief. Respondent
has not contested its authenticity. 5
Respondent's South Fresno Street terminal manager at
the time, David Redden, received the Union's demand
letter on about May 25, and subsequently gave it to Vice
President Scotty Douthit. That day, David Redden
approached employee Carl Dillenbeck and asked him if he
had signed a card. Dillenbeck replied that he did. No
purpose was given for the question and no assurances
against reprisals were made.
Shortly thereafter, Redden and Douthit went out on the
dock to talk with employee Larry Tuck. Douthit asked
Tuck if he had signed a card. Tuck replied that he had.
Douthit said that he thought he was treating the employees
well and asked why Tuck wanted a union. Tuck said that
the reason was money. He also said that he signed a card
because all the employees had signed cards. Douthit told
Tuck he was going to do everything he could to keep the
Union out.6
On or about June 17, Tommy Spicer, who was chiefly
responsible for circulation of the authorization cards, was
called into the office by David Redden to talk to Scotty
Douthit. Douthit had Spicer's personnel file and he stated
that he had heard that Spicer was unhappy and had a bad
attitude, and that Spicer had complained that he was tired
of management "bird-dogging" him. Spicer denied this and
asked that the employee who had reported this statement
by him be produced. Douthit then asked Spicer how he
"could do this to me," and, "Doesn't your conscience
bother you." Douthit failed to elaborate further on these
comments.
" On June 14, 1976, the Union filed an election petition with the Board in
Case 26-RC 5293. The petition was received in the mail by Respondent 2
days later. A preelection hearing in that case was conducted on June 29,
1976. At least one employee. Spicer, testified in that proceeding. Later, on
July 12. 1976, the Board's Regional Director issued a decision and direction
of election. As I have indicated, the election was not held because of the
pendency of this proceeding.
f" The above is based on the testimony of Tuck as substantially
corroborated by Redden. Douthit's testimony is not to the contrary except
that Douthit did not recall whether Tuck said that all of the employees had
signed cards. His testimony on this issue was evasive, particularly when he
was trying to explain a statement in his affidavit which tended to support
Redden and Tuck. I find that Tuck did make that remark and I discredit
Douthit.
7 The above is based on the credited testimony of Mayfield whom I
found to be a truthful and reliable witness. Redden testified about the
incident and generally corroborated Mayfield.
In early June 1976, David Redden was standing in a
trailer talking to employee Paulie Mayfield who had just
punched out and was going home. Redden said the freight
business was off and it was pitiful. He said, "The freight
business being off like this, and this other business, I look
for Marshall Wood to sell this business and all of us will be
out of a job."
In late June 1976, David Redden had another conversa-
tion with Paulie Mayfield. Redden told Mayfield not to say
anything about it but that he had signed a union card.
Redden also told Mayfield that the employees were going
to be pushed around and that Respondent was going to
start calling them at 3:30 a.m. and sending them home at 6
a.m. and call them back at 9:30 a.m. and send them home
at 11 a.m. Mayfield asked Redden what Douthit was doing
at the terminal and Redden told him that Douthit was
there to "get rid of' the Union.7
On or about June 16, David Redden approached Paul
Montgomery at his truck and asked Montgomery if he had
signed a union card. Redden also wanted to know if
Montgomery was going to vote for the Union. Montgom-
ery told Redden that he did not know. Redden said that he
thought that if Respondent went union or there was talk
about going union, Marshall Wood would probably sell the
business to Yellow Freight, another trucking concern. He
also said something to the effect that there would not be
any more raises.
On or around June 20, Spicer had a conversation with
Redden. Spicer told Redden that he was not the only one
responsible for the union campaign. Spicer also said he did
not want Redden to feel "personally bad" towards him.
Redden then told Spicer that "They'll sell it rather than let
it go union."
In early June, David Redden had a conversation in the
office with employee David Bassham, a rate clerk working
for Respondent. He told Bassham that he had just spoken
with Douthit and Wood and that they thought the
employees had signed cards because Redden had babied
them. Redden also said that Wood would get rid of all of
the employees or would close before he would let the
terminal go union. Later in June, Redden had another
conversation with Bassham and told him that there were
many ways to get rid of people. He said that one way was
to change working times to make it hard on the drivers and
discourage them so that the employees would quit. 8
On or about June 14 or 15, Douthit spoke to Carter
employee Terry Walnofer at the Carter terminal on Ninth
Street. He introduced himself as representing Respondent
8 The above is based on the uncontradicted testimony of Bassham.
Redden was not asked about these conversations. However, I believe that
Redden did make the statements attributed to him. Redden's demeanor on
the witness stand as well as his testimony convinced me that he not only was
a reluctant participant in Respondent's antiunion campaign at least after a
period of time, but also a reluctant witness who wanted to forget about his
entire involvement in this matter. He appeared fearful in revealing his
participation on behalf of management in Respondent's activities. He no
longer works for Respondent and dramatically expressed his intention never
to work for Respondent again, in response to a question of mine at the
hearing. I found him to be an honest witness with deep anxieties about his
role in these matters. Finally, Bassham's testimony is consistent with other
testimony by other employees as to Respondent's reaction to the union
campaign and is thus inherently plausible.
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and offered Walnofer a job with the same pay and seniority
with Respondent. Walnofer said he heard there was union
activity at Respondent's terminal. Douthit responded that
there was some activity but that it would not go any further
and that Respondent would never go union because it
could not afford a union. Walnofer said that he would call
Douthit and filled out an application given to him by
Douthit. Walnofer subsequently accepted Douthit's offer.
Douthit admitted the conversation but denied he said
Respondent would never go union.
Also at this time, in June 1976, Douthit spoke to Carter
employee James Keeling about working for Respondent.
He told Keeling that, when he came to work for
Respondent, he would probably be approached about
joining the Union. Douthit said that Respondent was
definitely not going union and it was up to Keeling to
determine whether he wanted to sign a card. Douthit
admitted he talked with Keeling and did not deny
Keeling's version of the conversation as set forth above.
Douthit also approached employees Wolfe in mid-June
1976 and asked if any of the other employees had
complained that he was getting work while they were not.
Wolfe replied that they had not complained, but he
expected that they would because he was the lowest
employee in terms of seniority and other employees had
been put on call. Douthit told him that this was due to the
Union and there was no sense hiding it. Douthit further
said that he had already beaten the Union three times and
he was going to beat it again. Douthit also told Wolfe that
he (Douthit) would lose his job if he did not beat the
Union.
Around the middle of July, Larry Pfeifer, who was
assistant terminal manager at the time, asked employee
Terry Walnofer if there was any union activity going on
then, and if there was any further activity to keep him
informed. Walnofer told Pfeifer he would keep him
informed. This testimony by Walnofer was uncontradicted.
Employee Carl Dillenbeck was asked to resign from
Respondent in June 1976 because of excessive traffic
violations. On June 23, 1976, Douthit, Wood, and Redden
went to Roland, Oklahoma, to visit Dillenbeck who was
then working at a service station. Douthit asked Dillenbeck
to return to work for the Respondent. He also promised
Dillenbeck a raise if he would be a "company man" and
turn over the name of anyone he heard talking for the
Union. Dillenbeck thereafter returned to work. This is
based on the credited testimony of Dillenbeck. He was
corroborated to a certain extent by Redden who overheard
part of the conversation and traveled with Wood and
Douthit to Roland for this purpose.9
In view of the credited testimony set forth above, I find
that Respondent committed various violations of Section
8(a)(1) of the Act. It interrogated employees about their
union activities generally. This was done several times,
sometimes in conjunction with threats of reprisal, with no
lawful purpose, and with no assurances against reprisals
given to employees. Respondent also threatened that the
' For reasons I have already stated, I do not credit the testimony of
Douthit who denied most of the statements attributed to him by employee
witnesses. On the other hand I found the employee witnesses to be truthful
and reliable. Redden impressed me as a truthful witness and I credit him
terminal would be sold or closed, hours would be changed,
and employees terminated, all because the Union sought
representation rights. These are clearly coercive statements
and threats. Douthit's statements that Respondent would
never "go union" are also violative of the Act in the context
of Respondent's other violations because they emphasize
Respondent's determination not to follow the law and
suggest the futility of supporting the Union. Redden's
remark to Mayfield that Douthit was at the South Fresno
Street terminal to "get rid of the Union" has the same
connotation and is also violative of the Act. Finally,
Respondent sought to have employees Walnofer and
Dillenbeck keep it informed of any union activity going on
at the terminal. Such suggestions of surveillance are classic
violations of the Act. In short, the conduct set forth above
shows unlawful interrogation, threats of reprisal, state-
ments of the futility of supporting the Union, and
suggestions of surveillance of union activity. All such
conduct is violative of Section 8(a)(I) of the Act.
C. The Termination of Respondent's Unionized
Work Force and the Hiring of Nonunion Personnel
The seven alleged discriminatees who worked for
Respondent when it operated as Fort Smith Cartage are
listed below with their starting employment dates and their
appropriate termination dates.
Robert Lewis-Mar. 30, 1976; June 22, 1976
Tommy Spicer-Dec. 13, 1975; June 25, 1976
Paul Montgomery-Apr. 1976; June 28, 1976
Paulie Mayfield-Aug. 1975; July 7, 1976
Larry Tuck-May 1975; July 9, 1976
Carl Dillenbeck-June 1975; July 10, 1976
Rick Wolfe-May 1976; July 8, 1976
All signed union cards in mid-May 1976. All worked until
June or July 1976. About this time, they were put "on call"
and most were never thereafter recalled to work for
Respondent. The General Counsel asserts that Respondent
thereby violated the Act. Respondent denied that its
conduct was discriminatorily motivated.
As indicated above, in late June or early July, Respon-
dent ceased operating as Fort Smith Cartage. At the time,
it was paying its South Fresno Street employees on checks
identifying the maker as Fort Smith Cartage. Respondent,
through Scotty Douthit, told its South Fresno Street
employees of the dissolution of Fort Smith Cartage. He did
not ask them to stay on to work at the South Fresno Street
location for Respondent. He did tell Dillenbeck and Tuck
that they could apply with Carter, but left the impression
that Douthit had nothing to do with the decision to hire for
Carter which would be operating at the South Fresno
Street terminal. Douthit did seek to recruit some former
Carter employees to work at the South Fresno Street
location. The record shows that Respondent hired at least
two former Carter employees in June 1976: Terry Walnofer
and James Keeling. Another, Bob Lewis, had been hired in
generally. In some instances he was unable to recall or did not testify about
particular conversations with employees and therefore the testimony is
uncontradicted.
868
WOODLINE, INC.
March 1976 by David Redden, who told him that
Respondent had bought out Carter and that he would like
Lewis to "come over now." In addition, Respondent
sought applicants "from the street" and from the Arkansas
Employment Security Commission. Respondent hired a
number of these applicants, but many of them were not
good employees and there was much turnover of employ-
ees at this time.'0
Also in June 1976, Douthit told Terminal Manager
David Redden that the new employees were to be assigned
work and that Respondent's employees were to be put "on
call." Before this conversation, Respondent's employees
were working regular hours. Redden then started putting
the Respondent's employees on call. This meant that they
did not report for work until Respondent called them in.
Redden admittedly changed the hours of work of Spicer
and Montgomery in June 1976 so that they and Bob Lewis
could no longer ride to work together and talk "about the
Union." This was in response to Douthit's instructions.
Prior to this point they had the same starting times and had
been working full 40-hour weeks. After the employees were
put on call, Redden could remember calling in only one
employee, Paul Montgomery, for work.
David Redden credibly testified that Respondent's crew
at the South Fresno Street terminal in March 1976 was
made up of "good men." He also testified that other
employees, not necessarily from Carter, who were hired at
or about this time, were not as good as the Respondent's
employees. Redden testified "they was new employees and
I mean, as far as some of them in the freight field, they
didn't know it that well."
On June 22 or 23, 1976, Lewis talked with Douthit
regarding his call-in status. The previous day, Douthit had
told Lewis he would save him a long distance call and
Douthit would call Lewis when he needed him instead of
the other way around. The next day, Lewis waited at home
until after 10 a.m. Since he did not receive a phone call, he
came to the terminal in Fort Smith to talk to Douthit.
Douthit told him he was going to call him to come in at I
p.m. for 2 or 3 hours' work. In fact, Lewis was told that this
would probably be all the work Respondent would have
for him. Lewis asked if he was laid off, and Douthit said,
"No, you're on call." Lewis said he was going to go to the
unemployment office and he wanted to know what to tell
them. Douthit then said, "Tell them you are laid off, layoff,
on-call, the same thing." Spicer's last day of work was June
25, 1976, when he was told he would be called when
needed.
On the day prior to the representation case hearing in
late June 1976, Montgomery told Scotty Douthit that he
had been subpenaed to go to the hearing and Douthit told
"' In its application to the Interstate Commerce Commission to lease
Carter's operating authority, Respondent attached an appendix entitled
"Effect of the Transaction on the Interest of Carner Employees Affected."
This appendix states that Carter had five employees. two of whom had
indicated a desire to seek other employment; it also states that it intended to
employ the three others who were engaged in pickup. delivery, and
warehouse work, The appendix concludes by asserting that "the interest of
employees affected will be protected."
i Dillenbeck's actual testimony was that Redden told him that Douthit
had told Redden that his lawyers said that he had to lay him off because of
the Union. I make no findings as to the truth of what Douthit told Redden
but I do find. based on Dillenbeck's testimony. which I found to be honest.
him if he needed him any more he would call him. That
was the last day that Montgomery worked. He did
subsequently call Douthit to request work but he was told
that Douthit did not have anything to do with this and he
would have to check with Al Mathis, the new terminal
manager.
Al Mathis was hired as terminal manager for Respon-
dent on July 5, 1976. At this time Wood and Douthit
informed him that there were "union problems" at the
South Fresno Street terminal. Douthit also told Mathis that
employees Dillenbeck, Wolfe, Tuck, and Mayfield had to
be off the payroll by July 15, because they had signed
union cards. Mathis told Mayfield that he was not needed
at this time and that he would be called when he was
needed. Redden told Tuck, Dillenbeck, and Wolfe of their
similar "on-call" status. Dillenbeck was told he was being
laid off because of the Union." Douthit and Marshall
Wood instructed Mathis that these employees were not to
be recalled.
Shortly after receipt by Mathis of the Regional Director's
Decision and Direction of Election issued on July 12, 1976,
Mathis notified Douthit of this. Douthit said he knew
about it and that this was why the "people had to be off the
payroll." The decision stated that those eligible to vote in
the election for which the date was yet to be set would be
those who were employed in the unit "during the payroll
period ending immediately preceding the date of this
Decision...."
Mathis hired a number of employees for the Fresno
Street terminal in the second week of July 1976. He hired
employees to replace Mayfield, Tuck, Dillenbeck, and
Wolfe from the Arkansas Employment Security Commis-
sion and some "off the street." Scotty Douthit told Mathis
that the former crew of employees was "an exceptional
crew." In August 1976, Douthit told Mathis that Dillen-
beck, Tuck, and Wolfe would be reapplying for work and
that he should use them as needed. When he asked why,
since they had signed union cards, Douthit said that they
"had promised they wouldn't sign any new card again" and
he felt sorry for them.'2
Douthit testified that Spicer and other employees were
terminated when Fort Smith ceased its operations. He also
testified that Carter began hiring new employees for the
South Fresno Street location even though he concededly
was not an official of Carter. He insisted that, with the
exception of Tuck and Dillenbeck, Respondent's employ-
ees "never indicated that they wanted to go to work for
Carter Truck Line" and they never put in an application to
work for Carter.' 3 However, Douthit also testified that
numerous employees applied for work at Respondent's
terminal at this time including some from the Arkansas
that Redden did make such remarks to Dillenbeck at least insofar as the
Union was mentioned as being the reason for the layoff. Redden did not
testify about this specific conversation.
12 Dillenbeck. Wolfe. and Tuck were recalled sometime in August 1976.
It is not clear whether they were recalled to their formerjobs or not. There is
some evidence that at least Wolfe did not work a regular shift. Dillenbeck
was thereafter terminated; Tuck was still employed by Respondent at the
time of the hearing; and Wolfe left because he was not assigned regular
hours.
13 Tuck and Dillenbeck did apply but they were not rehired or recalled
until August 1976. after charges were filed in this case.
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employment Security Commission and some through
"word of mouth." Most were inexperienced but some were
hired. Althougb he insisted that Carter was hiring these
employees, it is clear that Douthit was responsible for the
hiring decisions and he used either blank applications or
applications from another truck firm. He also testified that
Rick Parrish, a Carter official, was required to and did
approve the hiring of these employees although Parrish
never interviewed applicants and did not indicate his
approval on the applications. Parrish did not testify and
Mathis, who did testify and interviewed and hired
applicants at this time, did not refer to such a practice or
requirements. Sexton's testimony fails to confirm Douthit.
Finally, Douthit either never took applications from
Respondent's South Fresno Street employees or told them
that they would have to apply with Carter, implying that it
was Carter who was hiring employees for the South Fresno
Street location. As I have indicated earlier, I found
Douthit's testimony to be wholly unreliable. I therefore do
not credit his testimony on this issue and I specifically find
that Douthit ostensibly hired these employees for Carter
but actually hired them for Respondent.
Douthit also testified that at least 11 people were hired to
work at the South Fresno Street Terminal at this time
whose applications were taken in the period from June 15
to July 15, 1976: Theron Weaver applied for work on July
8, and was hired on July 19, 1976; Lawrence Pfeifer applied
July 13, 1976, and began on that date; Donald Brown
applied on July 2, and started work then; Jake Sterling
applied on July 6 and he began work the next day; Randy
Mosely applied July 7 and began work on July 12, 1976;
Dan Smith applied on July 8 and began work on about
July 13, 1976; Jack Bailey made application on July 6,
1976, and began work on July 7. Dwayne Nelson applied
on June 16 and was hired on June 17, 1976. Scott
Carpenter applied and began work on July 1, 1976. Charles
McNutt applied and began work on July 13, 1976; and
Johnny Mills applied and was hired on June 16, 1976.14
The evidence is overwhelming that Respondent changed
the hours of and effectively terminated its entire unionized
work force in June and July 1976, in order to rid itself of
the Union. The timing of the wholesale termination of
Respondent's employees shortly after the Union had
notified Respondent that it had obtained majority status
and sought bargaining rights warrants the inference that it
was based on this factor. Respondent's union animus is
clearly demonstrated. Redden and Douthit preceded the
terminations by statements that Respondent would beat
the Union, do anything to keep it out, and would sell or
close the business. As Redden credibly testified, Respon-
dent knew immediately that its entire work force had
signed union cards. Thereafter, as Redden told one
employee, the employees' hours were changed because of
the Union. He had suggested that this would be done to
another employee earlier. Douthit told Mathis that em-
i" There is testimony from employee Walnofer that Nelson had
previously worked for Carter.
15 As 1 have indicated above, Redden specifically told an employee that
Douthit was at the terminal to "get rid of' the Union. The evidence also
shows that Douthit was instructed by Wood; to move to and set up residence
in Fort Smith at this time. He lived in Fort Smith during the period between
May 1976 and October 1976 and engaged in substantial day-to-day
supervision over the operation of the terminal,
ployees were to be laid off because they had signed union
cards and he later stated that some could be recalled
because they promised not to engage in union activities in
the future. All of this evidence, when considered together
with the concession by Respondent's officials that it had a
good work force, is conclusive that Respondent first altered
the hours of its union employees and then put them on call
in such a way as to terminate their employment, all for
discriminatory reasons.15
The testimony of Douthit, Respondent's chief witness on
the termination issue, simply confirms this conclusion.
According to Douthit, Respondent terminated its employ-
ees and took applications from numerous inexperienced
people and hired 11 new employees during the period from
June 15 to July 15, 1976. This was in addition to former
Carter employees Walnofer and Keeling who were hired in
June. The new employees were admittedly inferior and
there was significant turnover for several months thereaf-
ter. Except for two instances, Respondent did not even talk
to its own employees, who were described as good
employees, about continuing to work after it formally
ceased operating as Fort Smith Cartage and resumed
operating as Woodline. Instead, Respondent engaged in a
fiction with its employees suggesting that Fort Smith
Cartage was simply closing down and that Respondent had
no interest or authority in the continuing entity which was
operating at the South Fresno Street terminal. The fiction
continued that Carter, whose authority Respondent was
operating, was the employer at the South Fresno Street
location and that Carter had the ultimate authority to hire
a new work force. This was not true, as the testimony of
Sexton, supported by the stipulation of the parties, clearly
shows. It is quite clear that Respondent was simply
operating Carter's authority and was making the substan-
tive hiring and labor relations decisions at the South
Fresno Street terminal. But Wood and Douthit continued
to engage in this fiction throughout their testimony before
me. As I have indicated, I do not credit their testimony that
their employees were terminated, as they apparently meant
to imply, because Fort Smith Cartage simply ceased
operations and those employees did not reapply with the
fictionalized employer whom they represented who would
be operating the Carter authority. Respondent never
ceased operating, as a single integrated employer, from the
South Fresno Street location. Accordingly, I find that
Respondent discriminatorily changed the hours and termi-
nated its entire unionized work force in late June and early
July 1976. In its place Respondent hired a whole new
complement of employees, replacing seasoned personnel
with green hands.16
Respondent's brief, in apparent reliance upon the
testimony of its transportation attorney, Conner Wiggins,
urges as a defense to its conduct alleged requirements that
Respondent dissolve Fort Smith Cartage Company as an
entity and give a priority to employment of Carter
16 See K. B. d J. Young's Super Markets, Inc v. N. LR.B., 377 F.2d 463,
465-466 (C.A. 9, 1967), cert. denied 389 U.S. 841 (1967); Piasecki Aircraft
Corporation v. N.LR.B., 280 F.2d 575. 584-585 (C.A. 3, 1960), cert. denied
364 U.S. 933 (1961); HLH Products, Division of Hunt Oil Co. v. N.LR.B.,
396 F.2d 270, 271-272 (C.A. 7, 1968), cert. denied 393 U.S. 982 (1968).
870
WOODLINE, INC.
employees because Woodline had sought Interstate Com-
merce Commission authority to operate Carter's interstate
authority. According to Respondent, if Fort Smith Cartage
was not dissolved, Woodline would have been exposed to
possible problems regarding Woodline's "fitness" in the so-
called section 5 proceeding before the Interstate Commerce
Commission involving the permanent application by
Woodline to operate Carter's authority. Respondent also
contends that it had an obligation to the employees of
Carter whose operations were to be taken over by
Woodline because 49 U.S.C. Section 5(2Xc) states that,
among those factors to be considered by the Interstate
Commerce Commission in the grant of a section 5
application are the "interests of the carrier employees
affected." From these assertions, Respondent fashions the
ingenious argument that the Fort Smith Cartage employees
were entirely distinct from Woodline so that the only
"carrier" employees that possibly could be affected by the
takeover, after the dissolution of Fort Smith Cartage, were
Carter employees. I reject this argument.
Initially, Respondent's argument rests on the false,
assumption that Fort Smith Cartage employees are entirely
distinct from Woodline. Although I find that the reasons
for the dissolution of Fort Smith Cartage were legitimate
and undoubtedly connected to transportation law issues,
this did not require or even explain the termination of all of
Respondent's employees. Wiggin's testimony shows that
Fort Smith Cartage was simply a local cartage company
which required no authority from state or Federal
transportation agencies. It is clear that his advice to
dissolve Fort Smith Cartage meant simply that Respondent
should stop operating under that name. It went no further.
More importantly, neither the appearance nor the demise
of Fort Smith Cartage should have had an effect on the
employment rights of Respondent's employees. For, as I
have found, Fort Smith Cartage and Woodline were a
single employer for purposes of the National Labor
Relations Act.
The other part of Respondent's argument which suggests
that its obligation to the Carter employees under the
Interstate Commerce Act required or justified the termina-
tion of its existing employees exaggerates both its obliga-
tion and Wiggins' testimony. First of all, section 5(2)(c) of
the Commerce Act simply states that the Commission
should consider the interests of carrier employees in
connection with a section 5 proceeding. To that end,
apparently, a statement is required to be appended to the
section 5 application as to the consequences of the takeover
on the employees of the purchased carrier. Respondent's
application states that it intended to hire three Carter
drivers and it presumably did. I am unaware of any
authorities under the Interstate Commerce Act that would
require Respondent, which is itself an interstate motor
carrier, to discharge its own employees in order to employ
the employees of a purchased interstate motor carrier.
There is nothing in Wiggins' testimony that would suggest
that he advised Respondent that it was required to
terminate its own employees in order to make room for the
three Carter employees who wanted to work for Respon-
dent. Indeed, Wiggins did not even advise that the Carter's
employees had to be hired; he simply pointed out that it
was necessary to file the statement as to the effect of the
takeover on Carter employees. Furthermore, Respondent
did not in fact have to terminate its employees in order to
employ the Carter employees. There was room for all of
Respondent's union employees after it took over Carter's
authority. There was no diminution in business; indeed,
with the purchase of Carter there would be, if anything, an
increase in business. Douthit himself testified that Respon-
dent took applications from the Arkansas Employment
Security Commission and from employees who walked into
the terminal looking for jobs. He also testified that
Respondent hired some 13 people (including Walnofer and
Keeling) to drive trucks out of Respondent's Fort Smith
terminal in June and July 1976. He also testified that, at the
time of the hearing, 13 or 14 people were employed at the
Fort Smith Terminal.
In short, none of Respondent's reasons, including those
offered by its witnesses in explanation of the terminations,
is persuasive; indeed, they border on the frivolous. My
analysis of all the evidence convinces me that, upon the
onset of the Union, Respondent seized upon the dissolu-
tion of Fort Smith Cartage and the contemporaneous
takeover of Carter's authority as a pretext to rid itself of its
own employees who had unanimously selected the Union.
It went on to replace its entirely prounion work force with
new nonunion employees. Respondent's conduct was a
clear and blatant violation of Section 8(a)3) and (1) of the
Act.
D. The Discharge of James Keeling
The General Counsel alleges that employee James
Keeling was discriminatorily discharged. Respondent
denies the allegation. Keeling was hired to work for
Respondent in June 1976. Previously he had worked for
Carter. When he started working for Respondent he drove
the same tractor he drove for Carter. Keeling signed a
union authorization card on June 21, 1976. Thereafter
Keeling passed out union cards to four other employees
and returned the signed cards to the Union. He also
solicited Larry Pfeifer who later was promoted to assistant
terminal manager for Respondent. Al Mathis, who was
terminal manager for Respondent at the time, signed a
form for verification of employment in connection with
Keeling's purchase of a home on July 12, 1976. On that
form Mathis indicated that Keeling was a "good worker"
and that his probable employment would last for an
indefinite period.
On July 23, 1976, while Keeling was on his route in Fort
Smith, he noticed he was losing air in one of his tires. Since
he was in the vicinity of the South Fresno Street terminal,
he decided to go to the terminal and change trucks. Mathis
indicated that there was no other truck available but that
he would have the tire repaired and Keeling should take his
lunch break. Keeling went next door to get a coke. In order
to get to the coke machine, he went through a corridor
owned by another trucking concern which shared facilities
with Respondent.
When Keeling returned with his coke, Douthit told him
that he did not want the coke bottle on Respondent's dock.
Keeling said he would return it when he finished his coke.
Douthit insisted that Keeling drink the coke at the
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neighboring dock and he did. When Keeling returned, he
made the statement, "If we had a union here, we could
have us a coke machine anyway." Mathis and another
employee who was present then left. Shortly thereafter,
Douthit came out of his office and asked to speak with
Keeling. When they were in the office, Douthit asked if
Keeling had made a statement about how a union would
improve Respondent. Keeling at first was ambivalent in his
answer because he was afraid of the consequences, but
later he admitted the remark. Douthit then said that he was
tired of Keeling "dilly dallying" on the dock and told him
to get his "ass" off the dock. Douthit insisted that Keeling
punch out immediately and refused to let Keeling use the
phone to get a ride home. Later, Mathis gave Keeling a ride
to the union hall. After his discharge, Keeling called
Douthit several times to ask for his job back. Douthit said
he was a good employee and that he could have his job
back as far as Douthit was concerned but that he should
call Mathis. Keeling called Mathis but was told he was not
needed.
The above is based on the testimony of Keeling which
was substantially corroborated by Al Mathis. Mathis
confirmed Keeling's testimony about Douthit's request
that Keeling not drink his coke at Respondent's dock and
Keeling's subsequent remark about a union. Mathis
reported this remark to Douthit. He had been instructed by
Douthit to report any comments about the Union to him.
Mathis corroborated Keeling's testimony that Douthit
asked Keeling at least twice whether he had made the
remark about the Union and, according to Mathis, Douthit
"got very hot." Mathis also confirmed that Douthit told
Keeling he was fired for "unsatisfactory work" and to get
his "goddam ass" off the dock. Mathis candidly confirmed
that he and Douthit had discussions prior to this time
about Keeling's work being unsatisfactory but also testified
that there had been no decision to terminate Keeling.' 7
I specifically discredit Douthit's version of the discharge
confrontation. Douthit testified that he did not remember
Mathis mentioning Keeling's union remark to him before
the discharge; he did state that Mathis told him of the
remark after Keeling's discharge. I find this unbelievable
and conclude that the incident happened as Mathis
testified. I also find implausible Douthit's testimony that he
summarily discharged Keeling because of a general
dissatisfaction with his work. This was known before July
23 and obviously something Keeling did that day precipi-
tated his immediate discharge. Douthit's specific objections
in his testimony to Keeling's use of the corridor of another
trucking concern to get his coke and his coming into the
terminal with a low tire are unconvincing. Any objections
to use of the corridor had been resolved before July 23 and
Respondent's employees regularly used the corridor;
moreover, Keeling was one and one-half blocks from the
terminal when he noticed the low tire and, under any
analysis, his conduct was reasonable and prudent. Keeling
17 As I have indicated, Keeling impressed me as a witness of truthful and
candid demeanor. He was substantially corroborated by Mathis whom I
also credit. Mathis was cross-examined vigorously by Respondent's counsel
who observed that in his first affidavit to the Board there was no mention
that he told Douthit of Keeling's union remark. This remark was in the
second affidavit. The first affidavit was given on August 18, 1976, while
Mathis was still employed; the second on September 8, 1976, after he left
credibly testified that Douthit did not even mention the
low tire incident when he was discharged.
I also find implausible Douthit's testimony that on the
very day he discharged Keeling he was talking to Sexton,
Carter's chairman, about Keeling's work and that he
obtained Sexton's approval to discharge Keeling. Mathis
does not recall Sexton being present and my view of
Douthit's testimony in this respect was that he was trying
to place the responsibility for Keeling's discharge on
Carter's management. It is clear not only from Sexton's
own testimony and the stipulation of the parties that Carter
had no control over Respondent's personnel policies after
June 15, but also from Douthit's own testimony that this
was so after July 15. Keeling was fired on July 23.
Douthit's testimony was simply an attempted evasion to
avoid a truthful recitation of the events surrounding
Keeling's discharge. For all these reasons and, in view of
Douthit's general unreliability as a witness, I reject his
testimony as to why he discharged Keeling.
Based on the credited testimony as discussed above, I
find and conclude that Respondent discriminatorily dis-
charged James Keeling on July 23, 1976. Keeling was a
strong and active union supporter. Minutes after he
expressed an interest in the Union and this was reported to
Douthit, he was questioned about the remark and sum-
marily discharged. This was a clear and blatant violation
of Section 8(aX3) and (1) of the Act.
E. The Termination of David Redden
On or about June 25, 1976, Redden quit Respondent.
The day before, Redden had been demoted from the
terminal manager position to a truckdriving job. On the
following Monday, June 28, Douthit called Redden and
they discussed his return to work. In order to get vacation
pay which was due to him, Redden had to give I week's
advance notice of his resignation. Apparently because he
did not want to lose his vacation pay, Redden agreed to
return to work. Redden testified that Douthit offered him
his old job back and said that he would "still be over the
terminal." Redden returned to work on July 5 or 6, 1976.
He worked until July 14, 1976. During the week or so
Redden worked in July, he was "working the dock as a
kind of an operations man." This was a supervisory
position. On or about July 13, Redden told Al Mathis, who
had been hired as, and was acting as, terminal manager,
that he was quitting. Mathis told Redden to think about it.
On the next day, July 14, Redden gave Mathis his written
resignation which was effective as of July 21, 1976, and
which indicated that he had a better job offer. That
afternoon, after speaking with Wood or Douthit, Mathis
told Redden that Respondent did not need him any longer
and he left;
The General Counsel claims that Redden was construc-
tively discharged because, according to his brief, Redden
Respondent's employ. Mathis explained this discrepancy both in his
testimony and in his second affidavit by stating that he was afraid of being
fired if he mentioned the matter in the first affidavit. I found this response to
be candid and truthful and fully in accord with my assessment of all the
testimony about Respondent's reaction to union activities in this proceed-
ing.
872
WOODLINE, INC.
"was blamed by Respondent for the advent of the Union."
In support of this assertion, reference is made to a passage
in the transcript dealing with employee Bassham's uncon-
tradicted testimony that Redden told him that Douthit and
Wood were "on his back" because he did not work the men
hard enough and blamed most of the card signings on him.
However, Redden did not testify as to these conversations
and, although I conclude that the statements were made to
Bassham, this is not reliable evidence, in the circumstances,
that Respondent's officials forced Redden's resignation for
union-related reasons. The General Counsel cites no other
specific evidence to show that Respondent's acceptance of
Redden's resignation was motivated by union animus. It
appears that Redden did sign a card at some point after
June 25, 1976, even though he was a supervisor; but there is
no evidence that Respondent knew of this before Redden
resigned. Redden himself candidly testified that he did not
tell Wood, Douthit, or Mathis of this and that he was
"pretty sure" they did not know. Significantly there is no
evidence that Respondent forced Redden's resignation for
any reason. Indeed, Redden himself testified that Douthit
tried to keep him from resigning and offered to transfer
him to Russellville. His resignation indicated he had a
better job and he told Mathis this. In these circumstances, I
find that the General Counsel has not shown by a
preponderance of the evidence that Redden's resignation
was forced or that it was caused by union animus directed
by Respondent towards Redden.
I have considered Respondent's apparent failure to
permit Redden to work through July 21 as his resignation
stated. However, I cannot infer unlawful motive from this
fact. It is logical that Respondent did not wish to carry an
extra supervisor who indicated a desire to quit and who
said he had found a better job. I also note that Douthit had
tried to discourage Redden from quitting and, according to
Redden, had even offered him a transfer to Respondent's
Russellville terminal. In addition, I have considered
Redden's response to my question at the hearing as to why
he quit. He stated that he had had enough, that the men
were unhappy, that they were griping, especially about
being put on call, and that he did not want to work for
Respondent. While this might suggest that he did not want
to be a part of Respondent's antiunion posture, it
nonetheless reflects Redden's subjective motivation. It is
not evidence from which I can infer that Respondent
caused his resignation, and did so for union reasons. The
evidence is susceptible equally to the inference that the
impetus for his resignation came from his own job
dissatisfaction rather than from Respondent's union
animus. In short, the evidence does not establish that
Respondent forced him to resign or otherwise made his
work intolerable because it harbored union animus toward
him.
In any event, even were I to be able to infer that
Respondent forced Redden's resignation and did so for
union reasons, I would not find Respondent's conduct to
be a violation of the Act. The General Counsel's theory is
that Redden remained a supervisor throughout his employ-
ment and that Respondent violated Section 8(a)(1) of the
Act, presumably because his alleged forced resignation for
union reasons affected employee rights under applicable
authorities. Respondent conceded Redden's supervisory
status and defended the case on this theory. However, I am
unable to conclude from the evidence that, even if Redden
was constructively discharged for union reasons, this
discharge was known to employees to have been for union
reasons and thus interfered with their Section 7 rights.
Redden himself testified that he did not tell employees that
he was resigning or the reasons for his resignation.
Although some employees may have known that he had
signed a union card or that Respondent was displeased
with him, there was no evidence that they knew or could
reasonably have thought that his resignation was forced
and was for this reason. Accordingly, it would be
speculative at best to infer that, even if Redden's resigna-
tion was forced by Respondent for union reasons, these
circumstances were sufficiently known by employees so as
to require the conclusion that Redden's termination
interfered with their Section 7 rights. See Florida Steel
Corp. v. N.LR.B., 551 F.2d 306 (C.A. 4, 1977).
For all of these reasons, I find that the General Counsel
has not shown by a preponderance of the evidence that
Respondent caused the resignation of David Redden or
terminated him in violation of Section 8 (aXl) of the Act.
F. The Termination of David Bassham
The General Counsel also alleges that employee David
Bassham was discriminatorily discharged. Respondent
claimed that he resigned.
Terminal Manager Al Mathis testified that David
Bassham was his rate clerk and that, although Bassham
had some problems, he found Bassham's work acceptable.
During the first or second week in July, Douthit told
Mathis that Bassham was resigning effective the following
Monday. Mathis talked to Bassham who said he was
disillusioned with the Company. After some talk wherein
Mathis told him his ideas about operating the terminal,
Bassham agreed to stay on permanently. Mathis mentioned
to Douthit that he asked Bassham to stay on and Douthit
said, "That's fine. Keep what you need." Thereafter
Douthit instructed Mathis to "let Bassham go" by July 15
and to tell Bassham that he would be called when needed.
Bassham was never recalled. Mathis testified that, insofar
as he knew, Bassham was not mistreated because of union
activities. Mathis also testified that, after Bassham was
released, no new rate clerk was hired but that he, Mathis,
did Bassham's work. Mathis also testified that Douthit, in
conversations in early July, had told him that Bassham was
not doing his job properly, that he was not a good
employee, and that he made too many errors. Mathis
further testified that Douthit told him that he did not know
if Bassham had signed a card or not and did not care
because he thought Bassham's loyalties "lay with the men
who had signed cards."
David Bassham testified that he had been working for
Respondent since March 1976 as a rate clerk. According to
Bassham, he submitted his resignation to Douthit on June
28, 1976, to be effective July 7. No reason was given for the
resignation. After Mathis was hired as terminal manager,
Mathis spoke to Bassham about his resignation. According
to Bassham, he told Mathis that Respondent was fighting
the people who supported the Union. Bassham said he
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believed the situation would get worse rather than better.
Bassham also told Mathis he had heard that he was going
to be fired so he turned in his resignation. Mathis asked if
he thought things could change and Bassham said it would
be pretty hard. Mathis told Bassham that he was running
the terminal now and that he had been given full authority
to keep and hire people. Mathis asked Bassham to
reconsider his resignation and Bassham told Mathis he
would give him his answer in a couple of days. On July 7,
Bassham told Mathis he could continue working. Bassham
asked Mathis what Douthit or Wood would say about it
and Mathis replied it was his terminal and he could keep
whom he wanted and that he had talked to Douthit and he
had "okayed" it. Mathis told Bassham he was back full
time and that his resignation was void. Bassham continued
working. On the morning of July 15, before he was due to
report for work, Bassham was called by Mathis and told
not to report because of Douthit's instructions and that he
would call Bassham when he was needed. Bassham
questioned if he was laid off and Mathis told him as far as
he knew it was only for I day but to check back that
afternoon. Bassham did and was told to file for unemploy-
ment.
Douthit testified that Bassham resigned before he hired
Mathis and that Mathis was to do some rating work. He
also testified that, about a week before the effective date of
Bassham's resignation, Mathis called him and asked for
permission to keep Bassham on for a few days or a week to
help him out. Douthit agreed. He also testified that
Bassham indicated that he could come in to work the
Monday and Tuesday after July 15, but Douthit cautioned
that he did not know if Bassham would be needed then. He
also testified that Mathis never indicated that Bassham
wanted a permanent job. Douthit also testified that he did
not want Bassham to be working beyond July 15 because,
after Fort Smith Cartage was phased out, he had two rate
clerks, Bassham and Mathis, and he only needed one. He
did not, however, tell Bassham this reason. He insisted that
Bassham resigned and that Mathis and Bassham had
conversations with him wherein Douthit approved Bass-
ham's staying on only temporarily "a few days" to help
out.
It is clear that Bassham resigned in late June 1976 but
worked out until July 15. The issue is whether Respon-
dent's termination of Bassham, who admittedly did not
sign a union card and was not active in the Union, was
caused by Respondent's desire to render legitimate the
discharge of its entire unionized work force. The General
Counsel's theory is that Bassham was the last vestige of the
old Fort Smith Cartage operation and that Respondent's
termination of Bassham would legitimize the discharge of
all Fort Smith Cartage employees, which was clearly
discriminatory. While the evidence compels the conclusion
that Respondent wished to rid itself of its unionized work
force, I cannot make the inference that Bassham was swept
along, notwithstanding that he was not a union supporter.
It appears that Respondent retained other office employees
at the South Fresno Street terminal and Bassham was not
in the drivers unit which the Union attempted to organize.
The General Counsel's case depends on the testimony,
which stands contradicted, that Mathis voided Bassham's
resignation and asked him to stay on permanently and that
Douthit had approved this procedure. Douthit testified
that he only approved a temporary extention of employ-
ment and that he never authorized or intended to authorize
a permanent continuation of Bassham's employment. In
order to accept the General Counsel's theory, it would be
necessary to infer that something occurred between the
time-approximately July 7, 1976-when Douthit allegedly
approved Bassham's permanent return to work, and July
15, when he changed his mind and insisted that Bassham
not work any longer. There is simply no evidence from
which I could infer that Douthit changed his mind about
retaining Bassham and did so based on union animus.
Under General Counsel's theory, Douthit had the same
opportunity to terminate Bassham for union reasons on
July 7 as he did on July 15. That he did not do so highlights
the absence of a crucial piece of evidence in General
Counsel's case as to which he has the burden or proof; it
also tends to support Douthit's explanation. Although I
found Douthit's testimony in the main to be unreliable in
this proceeding, his testimony on this issue-that he only
meant to retain Bassham temporarily-is plausible. Douth-
it testified that he did not want to retain two rate clerks,
especially since Mathis had considerable experience and
Bassham admittedly was having problems. Moreover, it is
plain from Bassham's testimony that the impetus for this
original resignation came from him, not Respondent, and
that it was not forced because of antiunion reasons. This
analysis does not reflect adversely on Mathis' testimony,
for I am convinced that he believed he had the authority to
keep Bassham on as a permanent employee and to void his
resignation and he probably told Bassham this. However, it
does not appear that Douthit actually told him in haec
verba that Bassham could stay on permanently. Mathis'
testimony is unclear on this point: he testified that he
simply told Douthit about asking Bassham to stay and
Douthit agreed. He did not testify as to whether Douthit
agreed that it could be a permanent arrangement. That
there may have been an initial misunderstanding between
Mathis and Douthit on this point seems apparent since
Mathis did not question Douthit's subsequent order that
Bassham be terminated on July 15.
I have also considered Bassham's testimony that he was
told not to talk to Bob Lewis, a prounion employee, and
that Redden made some antiunion remarks in his presence.
Although this evidence indicates general union animus, I
cannot conclude that it shows that Respondent harbored
union animus specifically towards Bassham and that this
contributed significantly either to his resignation or the
refusal of Respondent to retain him as a permanent
employee after July 15, 1976. In these circumstances, the
General Counsel has not shown by a preponderance of the
evidence that Respondent terminated David Bassham in
violation of Section 8(aX3) and (1) of the Act.
G. The Respondent's Refusal To Bargain and its
Bargaining Obligation
The parties do not dispute the appropriate unit for
collective bargaining which was found by the Regional
Director in his decision of July 12, 1976, in Case 26-RC-
5293. Units composed of drivers in a single terminal of an
874
WOODLINE, INC.
employer are presumptively appropriate. Accordingly, I
find the following unit appropriate in the circumstances of
this case:
All local pickup and delivery drivers and dock
employees employed by Respondent at its Fort Smith,
Arkansas, location, excluding all office clerical employ-
ees, guards, and supervisors as defined in the Act.
The parties stipulated that the aforementioned unit
consisted of seven employees for the payroll period ending
May 26, 1976.
As indicated above, all seven of these employees had
signed union authorization cards at various dates in mid-
May 1976. The cards were clear on their face, they were
authenticated by the employees themselves, and there was
no showing of misrepresentation which would have
controverted the stated purpose of the cards. Accordingly,
the Union represented a majority of Respondent's Fort
Smith employees in the unit described above as of May 24,
1976, the date of the Union's demand for recognition.
The standards for determining whether a bargaining
order is required in any given set of facts are set forth in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
There, the Supreme Court held that such an order would be
an appropriate remedy for: (I) " 'exceptional' cases
marked by 'outrageous' and 'pervasive' unfair labor
practices ... of 'such a nature that their coercive effects
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be had,' " and (2) "less extraordinary cases marked
by less pervasive practices which nonetheless still has the
tendency to undermine majority strength and impede the
election processes." The Court went on to point out that
the Board, "[i ]n fashioning a remedy ... can properly take
into consideration the extensiveness of an employer's
unfair practices in terms of their past effect on election
conditions and the likelihood of their recurrence in the
future." Id. at 614. Applying these standards, I conclude
that a bargaining order is required to protect the free and
true expression of employees sentiment as demonstrated by
the signed authorization cards.
Respondent's unfair labor practices, particularly the
discriminatory discharge of its entire work force because it
unanimously supported the Union, are of such a nature
that their coercive effects cannot be eliminated by
traditional remedies. Respondent not only destroyed the
Union's majority status but made the holding of a free and
fair election among employees an impossibility. Even after
the initial termination of union supporters, it discriminato-
rily discharged James Keeling, a relatively new employee
who had been hired from the Carter operation. And
Respondent's representatives made repeated statements to
the effect that Respondent would never accept a union.
This is clearly a case which falls within the first category of
Gissel. Respondent's conduct is so outrageous and perva-
sive that a bargaining order is the only appropriate remedy.
In these circumstances, Respondent's obligation to
bargain with the Union dates from May 24, 1976, the date
on which the Union had attained majority status and after
which the Respondent engaged in a course of unlawful
conduct to destroy the Union's majority and to preclude a
free election. Trading Port, Inc., 219 NLRB 298 (1975).
CONCLUSIONS OF LAW
I. All local pickup and delivery trucks and dock
employees employed by Respondent at its Fort Smith,
Arkansas, location, excluding all office clerical employees,
guards, and supervisors as defined in the act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since May 24, 1976, the Union has been
and is now the exclusive representative of the employees in
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
3. By interrogating employees concerning their union
activities and that of other employees; threatening employ-
ees with reprisals, including termination of employees and
closure of the Fort Smith terminal, if the Union won
bargaining rights; suggesting the futility of supporting a
union; and suggesting that employees keep Respondent
informed of union activities, Respondent has engaged in
unfair labor practices affecting commerce in violation of
Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By discriminatorily changing the hours of its employ-
ees and by discriminatorily discharging employees Robert
Lewis, Tommy Spicer, Paul Montgomery, Paulie Mayfield,
Larry Tuck, Carl Dillenbeck, Rick Wolfe, and James
Keeling because of their union activities, Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(3) and (1) and 2(6) and
(7) of the Act;
5. By refusing, since May 24, 1976, and at all times
thereafter, to recognize and bargain with the Union as the
exclusive representative of its employees in the appropriate
unit set out above, Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce
within the meaning of Sections 8(a)(5) and (1) and 2(6) and
(7) of the Act.
6. Respondent has not otherwise violated the Act.
THE REMEDY
In addition to the bargaining requirement that I have
discussed above, I shall recommend that Respondent be
required to cease and desist from its unlawful conduct and
take certain affirmative action which is necessary to
effectuate the policies of the Act.
Having also found that Respondent discriminatorily
terminated eight of its employees in June and July 1976, I
shall recommend that it be required to offer them
immediate, full, and unconditional reinstatement to their
former jobs or, if these jobs no longer exist, to substantially
equivalent ones without prejudice to their seniority and
other rights and privileges, and make them whole for any
loss of earnings suffered by reason of such discrimination,
by paying them sums of money equal to the amount they
would have earned from the date of the discrimination
against them to the date of Respondent's offer to reinstate
them as aforesaid, less their net earnings during that
period, in accordance with the Board's formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest thereon at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).'8
I find that further remedial provisions are warranted in
the circumstances of this case.
First of all, I shall require that, in addition to the posting
of a notice, Respondent mail a copy of the notice to the
homes of all persons who are presently employed by it at its
Fort Smith terminal as well as to the employees discrimina-
torily terminated. This is necessary to insure that employ-
ees may be able to read and fully absorb the notice at their
leisure and away from their workplace which was the site
of the unlawful conduct. It is also necessary in order to
inform employees more directly and effectively of the
flagrant misconduct of Respondent and the Board's
remedy thereof.19
Secondly, it is my judgment that the facts in support of
the findings herein as to the discriminatory termination of
the union supporters and the Respondent's refusal to
bargain are so overwhelming that there is a substantial
likelihood that these findings will be affirmed on any
subsequent review. It is also my judgment that the
Respondent's refusal to bargain and failure to fully
reinstate the employees who unanimously selected the
Union as their bargaining representative in the circum-
stances of this case frustrate the remedial purposes of the
Act. The passage of time tends only to reward Respon-
dent's undertaking to destroy the Union's representative
status. See Gissel, supra, 395 U.S. at 610-611; and see
Trading Port, supra, which establishes the date of the
bargaining obligation. Accordingly, I shall recommend
that the Board include in its final order in this case an
authorization and direction that the General Counsel seek
temporary relief, under Section 10(e) of the Act, to secure
the immediate reinstatement of discriminatorily discharged
union supporters and the immediate commencement of
bargaining.20
Finally, because Respondent urged as a defense to its
wholesale termination of union supporters its purchase of
the Carter operating authority and cessation of operations
of Fort Smith Cartage, because it urged an ICC require-
ment in support of its conduct, and because that sister
agency has pending before it the application for permanent
authority to operate Carter's authority, I will recommend
that the Board file a copy of its Decision with and make
available the entire record in this proceeding to the
Interstate Commerce Commission for it to determine (I)
whether Respondent adequately protected the interest of
all employees-not only those of Carter who were involved
in the Carter-Woodline lease arrangement, but also
il Although three employees were subsequently recalled to work it is
unclear whether they were reinstated fully to their former jobs. There is
some evidence that at least one was not assigned a regular shift; and there is
also evidence that they were recalled because they promised not to engage in
future union activity. Accordingly, I do not consider that these employees
were properly reinstated and I shall include them in the remedial order.
"' See The Lora)y Corporation, 184 NLRB 557, 558 (1970); M.FA. Milling
Compane. 170 NLRB 1079, 1080 (1968). In addition, I view the unfair labor
practices as so serious, flagrant, and pervasive that I shall direct that the
notice remain posted for I year instead of the usual 60 days.
2" See John Singer, Inc., 197 NLRB 88, 90(1972).
21 In this respect I note that James Keeling was a former Carter
employee who was hired by Respondent and then discriminatorily
Respondent's existing work force; 2 and (2) whether the
violation of employee rights under Federal law as deter-
mined in this case is relevant to a determination of whether
Respondent is fit to operate Carter's authority on a
permanent basis.22
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 23
The Respondent, Woodline, Inc.; Marshall Wood; and
Marshall Wood d/b/a Fort Smith Cartage Company, Fort
Smith, Arkansas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their union
activity and that of other employees.
(b) Discharging employees because they engage in union
activities or support the Union.
(c) Discouraging employees from support of or member-
ship in the Union or other labor organizations by discharge
or any other discrimination affecting their tenure or
condition of employment.
(d) Threatening employees with reprisals including
termination or closure of the Fort Smith terminal because
of their union activities or because the Union is selected as
their bargaining representative.
(e) Suggesting the futility of selecting a union as a
bargaining representative.
(f) Suggesting that employees engage in surveillance of
the union activities of other employees.
(g) Refusing to bargain collectively with the above-
named Union as the exclusive bargaining representative of
the employees in the appropriate collective-bargaining
unit, as previously set forth herein.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all employees in the
appropriate unit found above with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a written signed agreement.
(b) Offer to employees Lewis, Tuck, Mayfield, Dillen-
beck, Spicer, Montgomery, Wolfe, and Keeling immediate
and full reinstatement to their former jobs or, if those jobs
discharged; in addition, Bob Lewis, another discriminatee, was a former
Carter employee.
22 Cf. Truck Drivers, Oil Drivers, Filling Station and Platform Workers
Union, Local No. 705, an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Gasoline Retailers
Association ofMerropolitan Chicago), 210 NLRB 210, 277 (1974); N. LR.B. v.
The Millgard Corporation, 472 F.2d 166 (C.A. 6, 1972).
23 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.
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.
876
WOODLINE, INC.
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights,
including but not limited to any and all raises given to
employees since their termination, and make them whole
for any loss of earnings in the manner set forth in this
Decision.
(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 terminal in Fort Smith, Arkansas, and mail
to all present employees and to the employees discrimina-
torily discharged copies of the attached notice marked
"Appendix." 24 Copies of said notice, on forms provided by
the Regional Director for Region 26, after being duly
signed by Respondent's representatives, Marshall Wood
and Scotty Douthit, shall be posted by Respondent
24 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
immediately upon receipt thereof, and be maintained by it
for I year 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.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
IT IS FURTHER RECOMMENDED that, upon issuance of the
Decision of the Board in this matter, the General Counsel
immediately seek interim relief under Section 10(e) of the
Act to enforce the bargaining and reinstatement provisions
of this Order and that the Board cause the Decision and
record in this proceeding to be filed with the Interstate
Commerce Commission.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
877