Tennessee-Carolina Transportation, Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 21, 1954108 N.L.R.B. 1369 (N.L.R.B. 1954) Copy Citation TENNESSEE -CAROLINA TRANSPORTATION, INC. 1369 After an investigation , the Regional Director , on April 8, 1954, issued his report on objections, in which he found that the objections of the Employer were without merit, and recom- mended that the objections be overruled and the appropriate certification be issued. Specifically, the Regional Director found that there is no evidence that either of the two Unions threatened or coerced any of the employees , or electioneered at or near the polling areas while the election was being conducted , and that the non- coercive speeches which the Intervenor made during the lunch hour on the day before the election from loudspeakers located outside the plants, and which could be heard by em- ployees in the plants during that time, did not violate the Peerless Plywood rule because attendance was voluntary and the speeches were made on the employees ' own time. The Employer filed timely exceptions to the Regional Di- re_ctor's report , in which it urges that the Board set aside the election or direct a hearing on the objections. We have considered the objections to the election, the Regional Director ' s report, and the Employer ' s exceptions thereto. In agreement with the Regional Director , and for the reasons set forth in his report, we find that the objections raise no substantial or material issues with respect to the conduct of the election, and we therefore overrule them. Because the tally of ballots shows that the Intervenor re- ceived a majority of the valid votes cast," we shall certify the Intervenor as the bargaining representative of the em- ployees in the appropriate unit. [The Board certified International Union of Electrical, Radio and Machine Workers, CIO (IUE-CIO), as the designated collective-bargaining representative of the employees in the unit found appropriate in the Decision and Direction of Elec- tion herein.] 4 The challenged ballots are insufficient in number to affect the results of the election. TENNESSEE-CAROLINA TRANSPORTATION, INC. and TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS LOCAL UNION NO. 621, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 10-CA-1726. June 21, 1954 DECISION AND ORDER On August 24, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent had engaged in and was en- gaging in certain unfair labor practices and recommending that 108 NLRB No. 179. 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it cease and desist therefrom and take certain affirmative action , as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Intermediate Report , the exceptions aad brief, and the entire record in the case , and hereby adopts the Trial Examiner ' s findings , conclusions , and recommendations, with the modifications noted below.' As appears from the foregoing procedural summary , the sole exceptions before us are those of the Respondent . It seeks a reversal of the Trial Examiner ' s substantive unfair labor practice findings and, if its contentions in this respect be not sustained , it seeks a deletion of the affirmative provisions embodied in Section 2 ( a) (b) (c) of the order recommended by the Trial Examiner and notice -posting directive confining its obligations to the Knoxville terminal. We find no merit in the Respondent ' s exceptions to the substantive unfair labor practice findings of the Trial Ex- aminer , and conclude , as did the Trial Examiner, that the Respondent ' s transfer of its office functions from the Knox- ville terminal to its Nashville general office was not a step taken in the ordinary course of business , but represented rather , a device to avoid bargaining with the Union for its clerical workers. In these circumstances , the Respondent's liability under Section 8 (a) (1) (3 ) and (5 ) of the Act is clear.2 It remains , therefore, to consider the remedy for the unfair labor practices . As appears from the Intermediate Re- port , the Respondent made an effort , during the course of the hearing , to restore to working status the two employees whose jobs it had discriminatorily wiped out. This it attempted to accomplish by offering them clerical employment at its Nash- ville general office at the same rate of pay they had been earning in Knoxville and, in the event the employees accepted this offer , the Respondent undertook to reimburse them for their own expenses and those of their families in moving from Knoxville to Nashville . The Trial Examiner found , in effect, that this offer represented a "reasonable " attempt on the Respondent ' s part to undo in part, the damaging effects of these unfair labor practices upon the individuals immediately af- fected . We note that his findings in this respect have not been challenged by the parties and that , in any event , they are consistent with Board remedial precedent indicating that this is the kind of offer the Board would normally direct the Re- spondent to make to the employees as a condition of termi- nating its back-pay liability where , as here , substantially 'The Respondent's request for oral argument is hereby denied as the record , including the exceptions and briefs , in our opinion, adequately presents the positions of the parties. 2 Somerset Classics , Inc., 90 NLRB 1676 , enfd. 193 F. 2d 613 (C. A 2). TENNESSEE -CAROLINA TRANSPORTATION, INC. 1371 equivalent jobs were not available in the location where the employees were working when they were discriminatorily deprived of work.' We therefore adopt the Trial Examiner's recommendation that the Respondent be relieved of back-pay obligations upon the date the Nashville offer was made to the discharged employees.'' However, in view of the record showing that the employees refused the offers to work in Nashville, we find meritorious the Respondent's contentions that it should not be required to keep Nashville jobs available pending the employees' convenience. We shall, therefore, delete so much of the Trial Examiner's recommended order as, in effect, imposes such a requirement. Although, as above indicated, we regard the Respondent's Nashville job offers as constituting a "reasonable" attempt to provide immediate employment opportunities to the em- ployees, we think it is also appropriate, as a remedial matter, to make provision for the reinstatement of these employees at Knoxville if Respondent resumes office operations there, and, at that time, bargain collectively with the Union on their behalf. Therefore, we shall adopt the Trial Examiner's recom- mended order that, when and if the Respondent resumes its Knoxville office operations, it preferentially offer to Collette and Yearout full reinstatement to their former or to sub- stantially similar positions without prejudice to the rights and privileges enjoyed before the Respondent's discrimina- tion against them, and that the Respondent at such time bargain with the Union, upon request, for a clerical unit.' We do not agree with our dissenting colleague that we have provided an inadequate remedy in this case. We have done everything short of ordering Respondent to resume its Knox- ville office operations which we regard as partaking of punitive rather than remedial action. While we adopt the Trial Ex- aminer's finding that the advent of the Union was responsible for the timing of the transfer of operations from Knoxville to Nashville, there is substantial evidence in the record that there were also strong economic considerations in favor of the move, not the least of which is the fact that the transfer of the clerical work to Nashville did not necessitate the hiring 3Mount Hope Finishing Company, 106 NLRB 480. We find no merit in the Respondent's contention that no back-pay liability should be as- sessed against it because of its alleged belief that the discharged employees would have re- fused any prior offer of employment at a location other than Knoxville, Tennessee. It may be true, as the Respondent here offered to prove, that the conditions which apparently pre- cluded the employees from accepting the Nashville offer when made, were no different from those existing at any time between the date the Knoxville office shut down and the date the Respondent offered the workers employment in Nashville. However, the question of whether or not the employees would have accepted any prior employment offer is not susceptible of any objective test unless and until the offer is made. In any event, as the Board has had occasion to point out, the purpose of imposing upon an employer who has engaged in dis- criminatory acts an affirmative obligation to offer reinstatement to the employees is not only to effect a remedy for them, but also to dissipate the coercive effects of his conduct upon other employees. See Ford Motor Co., 31 NLRB 994, at 1099. 5See Mount Hope Finishing Co., supra. 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any additional clerical employees at that location. To order restoration at Knoxville under these circumstances would impose additional financial burdens upon the Respondent and subject it to continuing uneconomic business conditions. In our view, this would be clearly arbitrary and unreasonable. The two employees who lost their jobs in Knoxville were given an opportunity to accept equivalent jobs in Nashville, plus moving expenses for themselves and their families. The fact that they had reasons of their own, and no doubt valid ones , for refusing this offer, does not, as our colleague suggests , mean that the offer was not reasonable as the Trial Examiner found, particularly since no one has taken exception to this finding. Finally, the Respondent objects to the Trial Examiner's recommendation that the Respondent be required to post notices not only at its Knoxville terminal, but at all other terminals. The Respondent points out that the record does not disclose any evidence of similar or related activity at any terminal other than the Knoxville terminal. While the Board has, in certain instances, ordered the posting of notices at locations other than the place where an unfair labor practice was found to have been committed,6 such order has been predicated upon special circumstances not established here. Therefore, we shall require the Respondent to post copies of the notice, as modified herein, at its Knoxville terminal and at its Nashville office, the latter being the point to which the Knoxville office functions were transferred. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, Tennessee-Carolina Transportation, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 621, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor organization of its employees, by discharging them, or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of their em- ployment. (b) Refusing to bargain, in the event of reopening its Knox- ville office, with the above-named labor organization as the exclusive representative of the office and clerical employees, 6 See Public Service Corp. of New Jersey , 77 NLRB 153 at 156, enfd . 177 F 2d 119 (C. A. 3); United Mine Workers of America , 96 NLRB 1389 at 1391- 93, enfd. 202 F . 2d 177 (C A. 3); International Typographical Union , 86 NLRB 951 at 963, enfd. 193 F 2d 782 (C. A. 7). TENNESSEE-CAROLINA TRANSPORTATION, INC. 1373 exclusive of supervisors within the meaning of the Act, em- ployed at the Knoxville, Tennessee , office. (c) Interrogating its employees as to their union affilia- tions or activities , or threatening them with reprisals because of their union membership. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights to self- organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected byan agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) If the Knoxville terminal office is reopened , offer Collette and Yearout immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Collette and Yearout whole for any loss of pay suffered , in the manner set forth in the Intermediate Report in the Section entitled "The Remedy." (c) In the event of resumption of the office at Knoxville, immediately inform the above-named Union and, upon its request, bargain collectively with it as the exclusive repre- sentative of the employees in the appropriate unit, as set forth in the Intermediate Report, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment and , if an understanding is reached , embody such under- standing in a signed agreement. (d) Post at its Knoxville terminal and its Nashville general office copies of the notice attached hereto and marked "Ap- pendix."' Copies of said notice, to be furnishedby the Regional Director of the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by it im- mediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places , including all places where notices to employees are customarily posted. (e) Upon request, make available to the Boardandits agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records, and all reports and other records necessary to analyze the amount of back pay due. TIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, enforcing an Order." 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Member Murdock, dissenting in part: While I fully concur in the finding that the Respondent has violated Section 8 (a) (1), (3 ), and (5) of the Act, I cannot join in approval of the limited and inadequate remedy ordered by my colleagues. The unfair labor practices which the Respond- ent committed are serious in nature and extent. Unless the Respondent is required to transfer the clerical operations back to the Knoxville terminal , reinstate , with full back pay, the illegally discharged office employees, and bargain with the Union for the clerical unit at that terminal, the effects of the Respondent's wrongful acts remain unremedied. It is upon the failure of the Board to order such affirmative action by the Respondent that I must respectfully dissent. It is clear, as both the Board and the Trial Examiner have found, that the Respondent closed down clerical operations at its Knoxville terminal (transferring them to Nashville) and discharged the clerical employees of that office in an attempt to discourage membership in the Union and to avoid bargaining with that labor organization as the representative of its clerical employees. The actions were accompanied by other illegal activity of the Respondent interfering with, restraining, and coercing its employees in the exercise of their statutory rights. Upon such findings, the Board is directed by Section 10 (c) of the Act to order that the Respondent cease and desist the illegal activity and "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." (Emphasis supplied.) I submit that this statutory mandate has not been fully complied with in this case. My colleagues have ordered that the Respondent offer rein- statement in Knoxville to the illegally discharged employees only if the office operations at the Knoxville terminal are re- opened and bargain with the Union for a unit of its Knoxville clerical employees only if clerical functions are resumed at that terminal. The back-pay liability of the Respondent to the illegally discharged individuals is held to be tolled by the Respondent's offer of employment at Nashville made during the hearing; an offer which the Respondent admittedly knew the discharged employees could not accept for legitimate reasons. The extremely limited value of such provisions in erasing the effects of the Respondent's illegal conduct is obvious. The Respondent illegally evaded its duty to bargain with the Union for the Knoxville clerical employees. Under the terms of the Order it will not be required to bargain with the Union now. The Respondent illegally discharged its em- ployees for joining the Union. Under the terms of the Order the employees remain out of employment. The Respondent, through the discharges , penalized its employees through loss TENNESSEE-CAROLINA TRANSPORTATION, INC. 1375 of pay. Under the terms of the Order the Respondent is excused from liability for a large share of those losses . In short, despite the ruling of this Board that these actions of the Re- spondent violated the statute , the Knoxville office ( but not its terminal ) remains closed , the Respondent does not bargain with the Union , and the employees remain discharged . In other words , the Board ' s Order instead of effectively purging the Respondent ' s unfair labor practices , leaves it for all practical purposes in the quiet enjoyment of their fruits. While it is clear that full enjoyment of the employees ' rights which the Respondent failed to grant, cannot be had, as a practical matter, unless and until the Respondent resumes its office operations in Knoxville , my colleagues , nevertheless, accept the recommendation of the Trial Examiner that the Respondent's back-pay liability be tolled as of the date of the Respondent' s offer of positions in Nashville. This patent in- consistency is, according to the majority opinion , justified because this offer represented a "reasonable " attempt by the Respondent "to undo, in part, the damaging effects" of its unfair labor practices ; because the Trial Examiner ' s find- ings in this regard have not been challenged by the parties; and because the action is "consistent with Board remedial precedent." I submit that none of these grounds , upon analysis, is valid. As noted, the majority agrees with the Trial Examiner that the Respondent ' s offer of jobs in Nashville was, in effect, a "reasonable " attempt to remedy the effect of the illegal dis- charge of these employees from their positions in the Knox- ville office . Yet the Respondent ' s own witnesses admitted on direct examination by Respondent ' s own counsel that the Respondent knew the dis chargee s could not and would not accept the "offer" because their homes , husbands , and families were in Knoxville . The Respondent , itself, as a matter of record, has characterized the offer as a "futile " one. It is clear, certainly, that it neither furnished nor promised a real op- portunity for further employment of the dischargees by the Respondent under the circumstances. Indeed, if we are to accept it as honest and reasonable , the Respondent would have removed any back-pay liability on its part whatsoever , simply by having made this empty, tongue-in-cheek offer simulta- neously with the discharges themselves. Yet the majority reject this very argument by the Respondent on the unexplained premise that the offer, though admittedly meaningless at all times , could act to "dissipate the deeply coercive effects" of Respondent ' s conduct if made at the hearing but not if made previously. Rather than assuming with the majority, that the Respondent ' s offer somehow became healing though still valueless to the dischargees , I think it proper to consider, as did the discharged employees, that the offer left substantially untouched the results of the Respondent ' s illegal conduct. It is true that no exceptions were filed by the General Counsel to the Trial Examiner's ruling, herein , on the offer 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reinstatement. However, the entire case is opened up by Respondent's exceptions, and the Board has a special respon- sibility to frame a remedy which will not be woefully inadequate to purge the effects of the unfair labor practices. In a recent case involving a union's liability for back pay, the Board showed no hesitancy in enlarging a Trial Examiner's remedy despite the absence of exceptions from the aggrieved party or General Counsel.' Certainly there is no reason to be more technical here. Finally, the failure to provide adequate remedial action in this instance is not due to any lack of authority on the part of the Board. As I have noted, the Act itself directs that the effects of unfair labor practices are to be removed by such affirma- tive action as the Board deems necessary to effectuate the purposes of the Act. Inthis respectthe Board has even directed, with judicial approval, that an employee, in effect, resume discontinued operations and reinstate the employees where it had unlawfully abolished a department and contracted out the work.' In the instant case we do not even have the problems of a stituation where, because there has been a total dis- continuance or removal of a department or plant, resumption of employment raises at least practical difficulties. Instead, all that is necessary herein is to compel the Respondent to commence doing again precisely what it would still be doing had it not been for the advent of the Union and the Respondent's illegal actions in relation thereto. The clerical work done by the dischargees is still being performed; the situs of the dis- chargees' previous employment is still an active unit of Re- spondent's organization. To characterize such a remedy as being "punitive," "arbitrary," and "unreasonable" rather than remedial, is simply not a proper reflection either of the facts or the law herein as shown by the decision of the Ninth Circuit in the Bank of America case just cited. The majority opinion appears to base its conclusion as to the "punitive" nature of that remedy on economic grounds, i.e., that there were "strong economic considerations in favor of the move," that no extra employees were hired, and that ordering restoration of the Knoxville clerical work would "impose additional financial burdens upon the Respondent and subject him to continuing uneconomic business conditions." Reliance on such considerations is untenable in view of the Trial Examiner's specific findings, which my colleagues do not alter, reject, or in any way disprove, that the instant dis- charges and transfer of work were not based on economic reasons , that these "economic" allegations were in conflict with other statements by the Respondent, and that the Respond- ent, itself, admitted that the transfer was a direct result of the union activity. As for the contention that the full remedy 'Pacific Coast Marine Firemen, Oilers , Watertenders and Wipers Association , Inc., 107 NLRB 593. 9 Bank of America , 26 NLRB 198 , enfd. 130 F. 2d 624 (C. A. 9). TENNESSEE-CAROLINA TRANSPORTATION, INC. 1377 for the discharges should be withheld because the Respondent has not hired new employees to take their place, I trust my colleagues have not measured the full impact of such a novel doctrine upon future violations or contrasted it with the un- disputed testimony that less than a month before the dis- charges the Respondent was seeking more clerical employees at Knoxville because of the workload there. The majority's claim that to order resumption of clerical operations at Knox- ville would subject the Respondent to "continuing uneconomic business conditions" is completely fallacious. The Respondent would remain free after resumption at Knoxville as any em- ployer always is, to change his business operations at any time for economic reasons. In conclusion, it is patent that, absent a resumption of clerical operations at the Knoxville terminal, the Respondent's unfair labor practices will actually remain wholly unremedied. To sanction the continued removal of these operations fromKnox- ville when they were shut down solely because of the union adherence and activity of the dischargees and the Respondent's determination to avoid its statutory duty to bargain with their representative, is to permit the Respondent to profit, un- conscionably, by its own illegal acts. Accordingly, in order to fully effectuate the purposes of the Act, I would order that the Respondent reestablish its clerical operations at the Knoxville terminal, offer dischargees Yearout and Collette prompt reinstatement at that office with back pay from the date of discharge to the date of the offer, and bargain collectively in good faith with the Union for the unit of clerical employees so reestablished at Knoxville. Member Beeson took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL BARGAIN collectively, upon requestandinthe event of reopening our Knoxville terminal office, with Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 621, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, as the exclusive representative of the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody 339676 0 - 55 - 88 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such understanding in a signed agreement . The bargaining unit , in the event of reopening of said office, is: All office and clerical employees at the Knoxville terminal office excluding supervisors as defined in the Act. WE WILL NOT discourage membership of our em- ployees in the above-named or any other labor organi- zation by discharging or refusing to reinstate any of them, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment. WE WILL OFFER Helen Collette and Ferol H. Yearout, in the event of resumption of our Knoxville terminal of- fice, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL NOT interrogate our employees as to their union affiliations or activities, or threaten them with economic reprisals because of their membership in any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to join, form, or assist any labor organization, and to engage in any self-organization or other concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from such activi- ties except to the extent that such right may be affected by an agreement made in conformity with Section 8 (a)(3) of the Act. TENNESSEE-CAROLINA TRANSPORTATION, INC., Employer. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any othe r material. TENNESSEE-CAROLINA TRANSPORTATION, INC. 1379 Intermediate Report STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon hav- ing been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above -named Company, herein called the Respondent, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act, was held in Knoxville . Tennessee, on July 28 , 1953, before the undersigned Trial Examiner. In substance the complaint alleges and the answer denies that : ( 1) On April 13, 1953, the Respondent discriminatorily discharged Helen Collette and Ferol H, Yearout because they joined the above-named labor organization, herein called the Union; (2) the Respondent, on April 11, 1953 , refused to bargain with the Union as the exclusive representative of em- ployees in an appropriate unit ; and (3) by the aforesaid acts and by threatening employees with discharge if they joined the Union the Respondenthas interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. At the hearing all parties were represented , were afforded full opportunity to be heard, to examine and cross -examine witnesses , to introduce evidence pertinent to the issues, and to argue orally upon the record and to file briefs and proposed findings of fact and conclusions. Counsel for the Respondent argued orally and filed a brief . General Counsel filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Tennessee-Carolina Transportation , Inc., is a Tennessee corporation , maintaining its principal office and place of business at Nashville , Tennessee , operating as a common carrier by motor vehicle over routes between North Carolina and Tennessee, under franchises granted by the interstate Commerce Commission and various State regulatory agencies. During the year preceding the hearing the Respondent transported freight valued at more than $ 100,000 , more than 90 percent of which was transported across State lines. The Respondent is engaged in traffic and commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Teamsters , Chauffeurs , Warehousemen and Helpers Local Union No. 621, AFL, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The events at issue All relevant events occurred at the Respondent ' s Knoxville terminal , at which W . H. Krutzer is manager and where , until April 13, 1953, two girls --Collette and Yearout- - were employed in the office as billing clerk and rate clerk, respectively. With Krutzer as their superior, the two girls constituted the office force . Several drivers then and now operate out of this terminal. Since January 1951, the Respondent has been under contract with the Union as the repre- sentative of its drivers and freight -handling employees . On April 2 , 1953 , the two girls in the office applied for membership in the same Union , authorizing it to be their bargaining repre- sentative. On April 8 the business representative of the Union wrote to Krutzer , advising him that a majority of the employees in an appropriate unit of office and clerical workers had authorized it to represent them , offering to prove such majority , and requesting a meeting for negotiation of a contract covering wages and working conditions . Krutzer received and opened the letter early in the afternoon of April 9 . He remarked aloud , in the hearing of the girls "Oh my Lord!", whistled awhile, and then asked them if it was true they had joined the Union. They 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted the fact. He remarked "Oh my Lord!" again and went to the teletype. Early the next morning Krutzer called them into his office, told them that J. C. Hutcheson, secretary of the Respondent corporation, had flown over from Nashville the night before, and wanted him to try to get them to withdraw from the Union. If he did not succeed, Krutzer told them, Hutcheson himself would talk to them. Krutzer further quoted Hutcheson as saying that the head of the concern would close down the Knoxville terminal before he would "employ union members as clericals." When the girls declined to change their minds, Krutzer went to the hotel for Hutcheson. Hutcheson came to the office. He announced that he had come for a "friendly, confidential chat," but that they should remember that as union members they "could never talk that way with a company official again." He then told them that under the law they were free to join the Union, but that the Company had two main objections to employing union members in the office--the first being that if they joined any union it should be a clerical union, and the second being that the Company wanted to employ people "with good connections" and he did not "call being a member of a teamsters union a very good connection." He asked them if they realized all the difficulty they would have getting jobs anywhere else, as union mem- bers, if they were no longer employed by the Respondent. He told them that the head of the Company was "one of the most respected gentlemen in the trucking business of the old South," that he had a "heart condition," and that when he had learned the afternoon before of their joining the Union, he had had to "go home and take a sedative." Hutcheson further asked them if they realized that "the Knoxville terminal had been op- erating at a loss up until just recently." He said that the Company would not hire any help in the office that. was union. Finally he said that he was tired, and was going back to his hotel room. If they changed their mind about the Union, he said he wanted them to call him and let him know. The girls did not change their minds. There was no work on the following days--Saturday and Sunday. Early Monday afternoon, April 13, Krutzer called them into his office, said "I told you this would happen," read them parts of letters to him and to the Union from the Respondent's president, and told them they were to be paid and dismissed at once. Krutzer quoted the president as saying that for "economical reasons" all the Knoxville terminal clerical work would thereafter be done at Nashville. They were paid and discharged. On Saturday, April 11, Hutcheson wrote to the Union, in reply to its request for negotiation. He wrote, in part: Our Knoxville terminal has been a money losing proposition during all the time we have been operating it. We had hoped that we would eventually build up the tonnage to the point that it would pay its way, but that now appears to be a long way off. For the past two months we have been giving very careful consideration to ways and means of reducing our costs at Knoxville. We have decided that the best way for immediate relief is to close the Knoxville office and let the clerical work formerly done there be done in our home office. We shall make every effort to keep the Knox- ville terminal, and hope the reduction in our costs effected by this change will make this possible for the time being. Since this change will leave us without any clerical employees in Knoxville, I do not believe there will be anything to negotiate at this time. B. Conclusions As a witness, Hutcheson painted a doleful picture of the business done at the Knoxville terminal. A purported summary, unsupported by records, of "labor cost per 100 Ibs" was placed in evidence. According to Hutcheson, the Company had been able to acquire this opera- tion because it "had been very unsuccessful," and that from the beginning of the Respondent's control it "has been a losing proposition." Casting more than a shadow of doubt upon Hutche- son's claims is the undisputed testimony of Yearout that during her employment and since she came to work for the Company, in July of 1950, the number of dock employees at Knox- ville had increased from 5 to 7, and the number of over-the-road drivers had increased from 2 to 6. Yearout's testimony is also undisputed, and the Trial Examiner finds, that as recently as a month before their discharge Krutzer asked her to recommend someone to help out in the office work. Yearout also testified credibly, and the Trial Examiner finds, that Krutzer TENNESSEE -CAROLINA TRANSPORTATION, INC. 1381 had boasted to her of the increase in business since he had taken over as manager, and of how much more money they were making. I In any event , Hutcheson admitted , as a witness , that in closing the Knoxville office, "the timing of the change was attributable" to the request of the Union to negotiate a contract. In effect , Hutcheson claimed that he believed he would have to pay higher wages to the office girls, if he dealt with the Union , and his costs would be higher . Thus his own testimony establishes , and the Trial Examiner finds, that a reason for the dismissal of Yearout and Collette was discriminatory , to discourage union membership , and to evade bargaining with the Union. Discharging employees to discourage membership in a labor organization had long been found to be violative of the Act . There remains the question as to whether or not , by the same discriminatory action and its coincident refusal to negotiate with the Union , the Respondent likewise violated the Act by refusing to bargain. The only two employees in the clerical forcehad authorized the Union to be their bargaining representative . Management clearly acquainted itself of this fact by questioning the em- ployees concerned . The answer denies that the unit is appropriate , but the Respondent of- fered no evidence to show why it considered it inappropriate . There is no evidence that either employee served in a confidential capacity --one being a rate clerk , the other a billing clerk . It is reasonable to suppose that they operated in accordance with established and published tariffs. Where the Act does not prohibit and the Board has no inflexible policy there would appear to be no sound reason why the desires of the employees concerned should not determine the appropriateness of a unit , and not the preference of the employer . Under the circumstances the Trial Examiner concludes and finds that the Respondent 's office and clerical employees at its Knoxville terminal constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act . The Union was, on April 11 , 1953, and has been at all times since then , the exclusive representative of all employees in the said unit for the purposes of collective bargaining . On April 11 , 1953, by its letter to the Union, and on April 13 , 1953 , by its discharge of the only two employees in the unit the Respondent has refused to bargain collectively with the Union within the meaning of the Act. By thediscriminatory discharges , by the questioning of its clerical employees , by threatening them with closing of the Knoxville terminal office , and by its refual to bargain with the Union the Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above , have a close , intimate, and substantial relation to trade, traffic, and commerce in the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. During the hearing Hutcheson said that the work previously performed by Yearout and Collette at Knoxville was absorbed by the office force at Nashville without the need for hiring any new employees there . He also said that there had been no openings at Nashville for the two girls since April 1953, and that there were none at the time of the hearing . Later during the hearing , however , he offered each of them jobs in the Nashville general office of the Company, at different work , for which they would have to be trained , but at the same pay they had been receiving in Knoxville . After the close of the hearing General Counsel forwarded IKrutzer was an evasive witness . At first stating that he had no knowledge of whether or not the terminal was making money , "except through my imagination," when pressed by his own counsel he said he had been told by "officials" that the "Knoxville office was not making money." And the testimony of Krutzer and Hutcheson is at serious variance . Hutcheson testi- fied, and Krutzer denied, that the former gave the latter any instructions as to what to tell the girls. 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Trial Examiner a copy of a letter addressed to him from Yearout and Collette in which they declined the offer. That letter is hereby made a part of the record as Trial Examiner's Exhibit No. 1. Under the circumstances , and accepting Hutcheson ' s statement that since April and at the time of the hearing there were no jobs at Nashville available in the same category of billing and rating clerk , for the purposes of these recommendations the Trial Examiner will consider that a reasonable offer of reinstatement to a substantially equivalent position was made to each on July 28, 1953, and that the liability for back pay should cease as of that date. It will be recommended , however, that both Collette and Yearout be placed upon a preferential hiring list for employment in jobs of the classifications previously held by them , and that they be offered such jobs as soon as and if vacancies occur at Nashville . Such offer, as at the hearing , should include moving expenses to Nashville . Furthermore , it will be recom- mended that in the event the Respondent resumes its office at the Knoxville terminal, it shall offer Yearout and Collette the same or substantially equivalent positions immediately upon such resumption . Finally, it will be recommended that the Respondent make whole Yearout and Collette from any loss of pay they may have suffered as a result of the dis- crimination against them , by payment to each of them of a sum of money equal to that which she would normally have earned as wages from the date of such discrimination to July 28, 1953 , less her net earnings during such period, the back pay to be computed in the manner prescribed by the Board in F. W. Woolworth Company, ( 90 NLRB 289). It will also be recom- mended that the Respondent preserve and upon reasonable request make all pertinent records available to the Board or its agents. Since it has also been found that although the Respondent has unlawfully refused to bargain with the Union for its office and clerical employees the Knoxville office is now closed, it will be recommended that in the event the Knoxville office is reopened , the Respondent shall promptly notify the Union of such reopening and, upon request , bargain with it as the repre- sentative of the employees in the unit herein found appropriate and, in the event that an understanding is reached , embody such understanding in a signed agreement. In view of the nature of the unfair labor practices committed , the commission by the Respondent of similar and other unfair labor practices may be anticipated . The remedy should be coextensive with the threat . It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Teamsters , Chauffeurs , Warehousemen and Helpers Local Union No. 621 , International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent 's office and clerical employees , excluding supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Art. 3. The above-named Union was on April 2 , 1953, and at all times since then has been, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on April 11 , 1953, and at all times thereafter to bargain collectively with the aforesaid Union as the exclusive bargaining representative of its employees in the afore- said unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of its employees, and thereby discouraging membership in the above -named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.) Copy with citationCopy as parenthetical citation