Dependable Truck Leasing, Inc.

National Labor Relations Board - Board DecisionsJun 26, 1970

183 N.L.R.B. 1176 (N.L.R.B. 1970)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dependable Truck Leasing , Inc. and Leonard John- son. Case 13-CA-9042 June 26, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On April 7, 1970, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Dependable Truck Leas- ing, Inc ., Chicago , Illinois , its officers, agents, suc- cessors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. ' These findings are based , in part , upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record , we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc , 91 NLRB 544 , enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on April 17, 1969, by Leonard John- son, an individual, herein called Johnson, the Re- gional Director for Region 13 of the National Labor Relations Board, herein called the Board, is- sued a complaint on September 16, 1969, on behalf of the General Counsel of the Board against De- pendable Truck Leasing, Inc., herein called D.T.L. or Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S C. Sec. 151, et seq ), herein called the Act. In its duly filed answer to the complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice the hearing in this case was held before me in Chicago, Illinois, on November 17 and 18 and December 9, 1969. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record, includ- ing the briefs of the parties, and upon my observa- tion of each of the witnesses as they appeared be- fore me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is en- gaged at Chicago, Illinois, in the leasing of trucks and the transportation of freight. During the year immediately preceding the filing of the complaint herein, a representative period, Respondent derived income in excess of $50,000 from the transporta- tion of goods directly from inside the State of Il- linois to points outside the State of Illinois. Addi- tionally, during the same period of time, Respond- ent performed services of a value in excess of $50,000 for enterprises each of which is itself directly in interstate commerce. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ISSUES The complaint and answer present only a single issue. This issue is whether the Respondent dis- criminatorily laid off over-the-road driver Leonard Johnson because of Johnson's union activities re- lated to a campaign for union steward or whether Johnson's layoff was purely for economic con- siderations Underlying this principal issue are questions of credibility, the resolutions of which substantially resolve the principal issue. III THE UNFAIR LABOR PRACTICES A. The Events Johnson was first employed by the Respondent in June 1965, as a truckdriver hauling mail under 183 NLRB No. 118 DEPENDABLE TRUCK LEASING, INC. government contract out of Peoria, Illinois. This work ended approximately June 1966, when the mail contract expired. Johnson called the Respond- ent in Chicago and spoke to Melvin Stein, Re- spondent's office supervisor who also acts at times as a dispatcher. Johnson asked if there was any work for him in Chicago. There was no opening at that time, but approximately a month later work became available and Johnson proceeded to Chicago as an over-the-road driver out of the Respondent's Chicago facility. Thereafter, in the course of his employment, Johnson joined Local 710, International Brotherhood of Teamsters, herein called Local 710. Johnson worked as an over-the-road driver for the Respondent continuously from that time until March 1968, when the truck which Johnson had been driving was leased by the Respondent to another firm. Johnson did not choose to drive another truck which was assigned to him and at that point he either took leave of absence or quit the Respondent's employ. Which one of these avenues he took is discussed hereunder. In any event, Johnson returned to work for the Respond- ent in late July, 1968, and worked in his job as an over-the-road driver until December 6, 1968, when he was laid off along with five other employees for what the Respondent termed were economic reasons, but which the General Counsel and John- son contend was for union activity on the part of Johnson. Prior to the layoff, in November 1968, Johnson, along with other employees began to complain about working conditions, more specifically, about the fact that the Respondent was not complying in all respects with the terms of the contract with Local 710. Thus, the complaints covered such items as the failure of the Respondent to pay ac- cording to contract wage scales, not being paid for the time it took to fuel trucks and other items. There were three such incidents, all of which oc- curred in November 1968. One incident was a meeting in the office of Respondent's president, Harry Newburger. Attending that meeting was a representative of the Union, several employees, among them Johnson and Ray Hill. A second meeting at which Johnson registered complaints about the Respondent's failure to comply with the union contract occurred on November 13, 1968. This meeting took place between Johnson, Respondent's dispatcher Michael Dignan, and another employee, Thomas Herman. A third meeting occurred at which Johnson was not present but at which both Dignan and Herman were present, and the subject of the union contract again came up. Thereafter on or about December 3, 1968, while Johnson was on an over-the-road trip for the Respondent he drew up a petition to have Ray Hill appointed or elected union shop steward. On that same day, when Johnson returned to Respondent's premises in Chicago, he remained in the Respond- 1177 ent's yard for about 2 hours soliciting signatures for the petition to have Ray Hill made union steward. Thereafter, on December 4 and 5, John- son repeated for several hours the soliciting of signatures in the Respondent's yard. On December 5 or 6, more likely December 6, a meeting took place in the reception room of the Respondent's office in Chicago at which New- burger referred to Johnson as a "punk" to several of Respondent's supervisors, and ordered Melvin Stein to lay off Johnson and five other employees Whether this meeting actually took place as related by the General Counsel's witnesses is discussed hereinafter. At any rate, on that day Johnson received a telegram stating that he was laid off and sometime thereafter, Johnson received a letter signed by Newburger dated December 6, stating that Newburger was laid off indefinitely for economic reasons. Johnson did not work for the Respondent after his run on December 3, 1968 B. The Contentions and the Testimony Counsel for the General Counsel contends that Johnson was chosen for layoff for discriminatory reasons ; namely , that he engaged in protests and, principally , because he solicited Respondent's em- ployees to sign the petition on behalf of employee Ray Hill , to select the latter for shop steward among the Respondent 's over -the-road truckdriver employees . In support of this basic contention, the counsel for the General Counsel contends further that when Johnson left the Respondent 's employ in March 1968, he did so on an approved leave of absence and that therefore he did not lose any seniority rights and that his seniority dated back to the time he became employed as an over -the-road driver for the Respondent in July 1966. Ac- cordingly, the General Counsel argues that John- son's layoff out of the proper seniority sequence is further proof that Johnson was discriminated against . Finally , the General Counsel contends that Johnson after his layoff was never recalled although other employees were recalled and new employees were hired for the job that Johnson had performed for the Respondent. On the other hand, the Respondent contends that Johnson was laid off in proper seniority order for the nondiscriminatory reason that Respondent had lost a great amount of its revenue by reason of the fact that one of its chief customers, National Video, had been failing and, in fact, did subsequently file a petition in bankruptcy. In addition, Respondent contends that subsequent to Johnson's layoff he was offered reinstatement by the Respondent 's offi- cials and that he refused the same. Supporting the General Counsel's contention that Johnson was selected for layoff out of proper seniority order is Johnson's own testimony to the effect that in March 1968, when Johnson could no longer drive his particular truck because the truck had been leased to another firm, Johnson told Mel- 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vin Stein that he wanted a leave of absence and that he did not know when he would return. Johnson further stated unequivocally that he never told any- one that he had quit. Contradicting this testimony is the testimony of Stein, who stated that not only did Johnson tell him that he was quitting in March 1968 but that no provision was made in writing, in accordance with the union contract, that Johnson was granted a leave of absence which would have guaranteed his seniority continuing. Stein's testimony is supported by the testimony of Joan Stang, President Newburger's secretary, and by the testimony of Dispatcher Michael Dignan, both of whom testified that in separate conversa- tions with Johnson, the latter told each that John- son was quitting because he could not drive his former truck. With regard to the necessity of having to have written leave of absence in accordance with the bargaining agreement between the Respondent and Local 710, President Newburger admitted that in many respects the Respondent did not comply with the provisions of the agreement. However, New- burger did not admit that the written requirement for leave of absence had been waived by either the Respondent or Local 710. Johnson admitted that no written leave of absence was obtained. However, he insists that he asked for a leave of absence and that the Respondent acquiesced in this request. In support of his claim that he had a leave of absence and did not quit, Johnson testified that when he returned in August 1968, to the Respondent's em- ploy, he had a conversation with dispatcher Dignan at which employee George Baum was present. Ac- cording to Johnson, Baum asked Dignan what some of the drivers would say because Johnson was being assigned a new tractor. Dignan answered "We'll forget about all that time that he (referring to John- son) was off. We'll just consider that a leave of absence." However, Baum in his testimony did not refer to this conversation In connection with this issue of leave of absence and seniority , the seniority list submitted by the Respondent shows that Johnson's date of hire was August 1968 , and that, therefore , in accordance with this list , Johnson was laid off in proper seniori- ty sequence. Both Johnson and employee Thomas Herman testified that on November 13, 1968, they had a conversation with Dispatcher Dignan during which Johnson complained that he was not receiving pay for fueling time nor was he receiving the proper union established wage rate. According to both Herman and Johnson this conversation became quite heated and Dignan stated that "If you want to go union, we go union all the way." In his testimony Dignan did not deny this conversation. In November 1968, there was a meeting in Pre- sident Newburger's office which was attended by several employees including Johnson and truckdriver Ray Hill. Also present was Union Busi- ness Agent John Kelly. At this meeting the em- ployees, including Johnson, complained that the truckdrivers were not receiving union scale, nor were they being paid for drop time, unloading time, hook up time, or fuel time According to Johnson, Kelly, the union business agent, asked Newburger when the latter was going to start paying union scale and Newburger answered, "starting next week." After some further discussion Newburger stated that if he wanted to he could cancel his con- tract with National Video and if he did not have work for his drivers they would not have to work. Newburger then complained about Ray Hill, claim- ing that Hill should leave the room because he was drunk. Kelly stated that there did not appear to be any reason why Hill should leave. Before this meet- ing Johnson had also complained about the lack of union scale and the other items to Mel Stein and Michael Dignan. With regard to the meeting in Newburger's office, Newburger testified to practi- cally the same matter that Johnson testified, with Newburger insisting that Hill had been drunk. With regard to the Respondent's attitude toward the drivers' insistence upon the Respondent abiding by the terms of a union contract, employee Herman testified that in November 1968, he had a conversa- tion with Dignan which took place in the dispatcher's office. Dignan stated that it looked as though the drivers were going to run the Union and that he, Dignan, would show them. Dignan stated "We'll run it union all the way, including everyone." In his testimony, Dignan did not deny this conversa- tion. With regard to the statements to the effect that the Respondent would run the shop "union all the way," Newburger testified that what was meant was that the Respondent, pursuant to the union con- tract, had certain rights by which it could discharge or discipline the drivers without consultation with the Union. However, Newburger further testified that in the past the Respondent had ignored these privileges and had not disciplined or discharged any of the drivers for their lapses. As heretofore related, Johnson testified, without contradiction, that on December 3, 4, and 5 in the Respondent's yard he openly solicited signatures for the petition to select Ray Hill as shop steward to represent the Respondent's over-the-road truckdriving employees. However, neither Johnson nor any other General Counsel witness testified that Johnson was observed by any of Respondent's supervisors or members of Respondent's manage- ment hierarchy. Employee Donald Smith testified that on December 6 he was sitting in the reception office of the Respondent on a couch which was hidden from the rest of the office by a desk so that Smith could not be seen by others across the room. Across the room, according to Smith, was a group of men in- cluding Melvin Stein and President Newburger. Although Smith could not see these people, he had worked for the Respondent for over a year and was thereby able to recognize their voices. As Smith DEPENDABLE TRUCK LEASING, INC. 1179 was sitting there, hidden from view, he saw Leon- ard Johnson walk by. As Johnson left, Smith over- heard Newburger say "See that punk - he used to work for me for $80 a week on the mail run." Then Newburger continued " If they want to run this union , I can show them this is not a truck company, this is a leasing company.... I want some tele- grams to go out this afternoon laying them off." Johnson corroborated Smith 's testimony and stated in his testimony that he remembered walking through the room on that day and saw Newburger, employee George Baum , and other persons. He did not hear anything and walked on through the room. As he walked he noticed employee Don Smith on the couch. Further corroboration is furnished in the testimony of employee George Baum. Baum testified that at approximately 5 p.m. on that day he came into the reception room where he saw New- burger and others. He heard Newburger say that Newburger was having some problems and he was going to get rid of the troublemakers . Newburger saw Baum and greeted him. Baum continued through the room and , as he did, he saw Don Smith sitting on the couch in such a manner that he could not be seen by Newburger and the others. Smith placed his fingers on his lips in such a manner as to caution Baum not to acknowledge Smith's presence . Baum continued walking and went out of the office. Later that day Johnson did receive a telegram to the effect that he was being laid off and on Mon- day, December 9, he received a letter to that effect signed by Newburger. Newburger and Stein in their testimony denied that the meeting in the reception room ever took place . Newburger testified that he could not have attended such a meeting because he was away from Chicago on that day , having attended a meeting of the National Trucking Association in Miami, Florida , and did not return to Chicago until Sun- day, December 8. When confronted with the letter dated September 6, 1968, which was the notifica- tion to Johnson that he was laid off , Newburger stated that he must have signed the letter, which had been prepared by his secretary Joan Stang, when he returned to the office on December 9. In this Newburger is corroborated by the testimony of Stang . Newburger further testified that, in fact, he was not even aware of the layoffs until about a week after they occurred. Both Newburger and Stein testified that the layoffs were purely economic in nature , having come about because of the fall off in business by reason of the fact that one of its principal customers , National Video , was going bankrupt and by the time that the layoff occurred, Respondent's business with National Video had fallen off to a bare minimum . Stein and Newburger testified to the figures showing the loss of business with Na- tional Video . Stein further testified that National Video did, indeed , file a petition in bankruptcy the following February. Both Stein and Newburger in- sisted in their testimony that the six men who were laid off, including Johnson , were laid off in strict seniority and that , therefore, Johnson could not have been a victim of discrimnation. Furthermore , Newburger testified that he had no knowledge whatsoever of Johnson 's union activity in soliciting signatures for the election of Ray Hill for shop steward. Additionally, Newburger testified that he would have welcomed a shop steward because of the fact that he had considerable dif- ficulty dealing with the men individually and that it would have been much more convenient to him to have dealt with the men through a single represent- ative selected by them. Corroborating the testimony of Newburger and Stein with regard to loss of the business of National Video, is the testimony of Respondent 's sales manager , Joseph Glimco. He testified that John- son was terminated on December 6 for business reasons. He stated that business began to drop around that time of the year generally and addi- tionally, National Video was going out of business. Glimco stated that his knowledge came from the fact that he is engaged in sales and knows when business is up or down. However , controverting the testimony of Stein and Newburger to the effect that the meeting in the Respondent 's reception room on December 6 could not have taken place because Newburger was not in Chicago at that time are not only the letter of layoff dated December 6 which Newburger sought to ex- plain , but also the certified mail envelope and a signed receipt for certified mail which show that, according to Johnson's testimony , he received the said certified letter in Mapletown, Ilinois, December 9,,1968 , the date on which Newsburger and Stein contend the letter was signed and mailed in Chicago . The post mark on the envelope is dated December 7, 1968 , a.m., and the place, Chicago. Additionally, the receipt for certification shows that the letter arrived in the Mapletown, Illinois, post of- fice on Monday , December 9, 1968, and was delivered to Johnson on that date . Thus, there is a direct conflict of testimony between Newburger and Stang on the one hand and the General Coun- sel's witnesses who testified to the meeting in New- burger 's office on the other . Also, if the letter and the envelope and the certification are accepted as valid, Newburger 's testimony that he could not have been at the meeting since he was not in Chicago on that date, and could not have signed the letter on that date , has no validity whatsoever. The remaining testimony which is in dispute con- cerns a meeting which took place sometime late in January or early February 1969, at the LaSalle Hotel in Chicago . Present at a conversation which took place at that time were Stein , Glimco, and Dignan in addition to Johnson . The conversation took place in a hall outside a meeting room where a 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance conversation meeting was being held. Ac- cording to Stein , Glimco, and Dignan this grievance meeting was called for the purpose of attempting to settle claims by various employees that they had not been paid union scale. The conversation which took place outside the meeting room was to the ef- fect that Glimco, or Dignan , or both , asked John- son if the latter wanted his job back . According to Stein , Johnson said he did not want a fob , but ac- cording to Glimco and Dignan, Johnson merely shrugged his shoulders when asked this question. Johnson , in his testimony, denied that he was ever offered the job back and, in fact , testified that in January 1969 , he had a telephone conversation with Stein . The purpose of the telephone conversa- tion was that Johnson had a form to fill out from the Department of Labor of the State of Illinois for unemployment compensation . He told Stein that one of the questions on the form requested infor- mation as to whether the Respondent had any in- tention of calling Johnson back to work . According to Johnson , Stein hesitated a moment and then said " things were slow." Stein never answered yes or no. According to Johnson, this was the only conversa- tion he had with any official of the Company re- garding his possible recall to work . The evidence further shows that since Johnson 's layoff, two of the laid off employees have been recalled and, addi- tionally, the Respondent has hired some new em- ployees to perform the work that Johnson had for- merly performed. C. Concluding Findings The first factor which would indicate whether Johnson was discriminatorily discharged is that which involves the question of Johnson 's seniority. Thus, if Johnson quit in March 1968, his seniority stopped and when he came back to Respondent's employ in July 1968, he began a new employment. It is the latter situation which the Respondent claims is true and therefore that Johnson was not laid off out of seniority. If, on the other hand, John- son only took leave of absence in March 1968, his seniority continued and therefore his layoff would have definitely been improper senioritywise. Respondent argues that the testimony of Stein, Dignan , and Stang to the effect that Johnson told each of them on separate occasions in March 1968, that he was quitting is more reliable than Johnson's denial of these conversations and Johnson 's version to the effect that he told Stein that he was going to take a leave of absence . Respondent points out that although the number of witnesses on an issue is not the sole controlling factor in considering the proba- tive value of testimony , the law does recognize, and logic dictates , that the testimony of three witnesses is more credible than the testimony of one witness. Other things being equal, I would ordinarily be compelled to give great weight to this argument of the Respondent . However, other factors appear in the record which compel me to reach a different conclusion. As related above , Newburger , Stein, and Stang each testified , without equivocation , that New- burger could not have attended the meeting on December 6 in the Respondent 's reception room, to which the General Counsel 's witnesses testified, because Newburger was not in Chicago at that time . However , Newburger admittedly signed the letter of layoff which Johnson testifies he received on December 9. The date on that letter is December 6. The postmark of the envelope which contained that letter, and which was received by Johnson , is dated December 7, 1968, a . m., and the place is Chicago . Furthermore , the receipt for the certification shows that it was signed and received in the Mapleton, Illinois , post office on Monday, December 9, 1968, and was delivered to Leonard Johnson on that date . Therefore , I find and con- clude that Newburger must have been present in Chicago at the Respondent 's premises on December 6, 1968 , and that the testimony of Stein, Stang , and Newburger to the contrary is not credi- ble. I therefore conclude and find that because Stang and Stein are not credible witnesses in this respect , they are not credible witnesses in other respects . Accordingly , I do not credit their testimony to the effect that Johnson told each of them that he had quit. This leaves only the testimony of Dignan in support of Respondent's claim that Johnson quit in March 1968. However, I find that Johnson was a more reliable witness than Dignan from my observation of both of them on the witness stand and, moreover , since I have already discredited the version of Stein and Stang I must, accordingly , discredit the version of Dignan . There- fore, I find that Johnson did not quit his job in March 1968, but did , in fact, take a leave of absence and that, therefore, his seniority continued in force. The foregoing conclusion is strengthened by other factors. Aside from the fact that I have al- ready found neither Newburger nor Stang to be re- liable witnesses , I observe , and it is apparent from a reading of the transcript , that Newburger's testimony with regard to the establishment of seniority under the union contract is vague, hesi- tant , and contradictory. A careful study of the record reveals that Newburger's testimony is incon- sistent regarding the commencement of seniority accumulation for over-the-road drivers. At one point Newburger testified that seniority begins when the over-the-road driver starts his employ- ment . At other times his testimony seems to in- dicate that seniority begins when the particular driver joins Local 710. At another point in Newbur- ger's testimony it would seem that seniority is discontinued when a driver drives for one of the firms to whom Respondent leases its equipment. In another portion of Newburger's testimony it is in- dicated that seniority continues while the driver is DEPENDABLE TRUCK LEASING, INC. assigned to another employer. However, I find and conclude that Johnson's seniority started when he began as an over-the-road driver for the Respond- ent in 1966 and continued through his layoff in December 1968. It is thus established that when Johnson was laid off on December 6, employees with less seniority than Johnson were retained. This, I find, is a factor indicative of discrimination. There are other factors which must be con- sidered in determining whether Johnson was dis- criminatorily discharged. During the time Johnson was employed by the Respondent he registered a number of complaints about not being paid union scale and not being paid for other items such as fuel time and drop time. When Johnson registered one of these complaints, Dignan replied to Johnson that if he wanted to "go union" the Company would "go union all the way."' Additionally, Dignan's attitude was demonstrated once more in a conversation with employee Herman when Dignan said "It looks like the drivers are going to run this union, I'll show them; we'll run it union all the way, including every- one.-2 Thereafter, there was a meeting in Newburger's office with Johnson and Union Representative Kelly and other employees, among them Ray Hill. At this meeting Newburger attempted to have Ray Hill removed from the room, claiming the latter was drunk. Johnson participated in that meeting, complaining of various violations of the union con- tract. Finally, Johnson drafted the petition to have Ray Hill elected union steward. On December 3, 4, and 5 Johnson stationed himself in the Respondent's yard and solicited signatures for the petition. Al- together he stood in the yard for a period of about 2 hours each day for a total of about 6 hours. This was an open action on the part of Johnson and, although there is no direct testimony to show that Johnson was observed by any of the Respondent's hierarchy, it is obvious that he could readily have been observed during his soliciting activities. This activity was followed by the meeting in Respondent's reception room on the afternoon of December 6. I find and conclude that this meeting did occur in the manner to which the General Counsel's witnesses testified. I therefore find and conclude, because I do not credit Respondent's wit- nesses Stein and Newburger, that Newburger said to the others "see that punk. He used to work for me for $80 a week on the mail run ... if they want to run this union, I can show them this is not a trucking company, this is a leasing company . . I want some telegrams to go out this afternoon, lay- ing them off." This was Newburger's estimate of Johnson and his declared hostility to the latter. ' From the testimony of Johnson which was not refuted in any way by Dignan. ' From the credited testimony of Herman which was not denied by Dignan 1181 All of Respondent's witnesses consistently deny that they had any knowledge whatsoever of John- son's union activity in soliciting signatures for the petition of Ray Hill. Relying on this testimony, the Respondent denies knowledge of Johnson's union activity and contends that without evidence of direct knowledge animus cannot be found. I find and conclude, however, that the evidence amply demonstrates that Respondent did have knowledge of Johnson's activity. I note first Newburger's state- ment inferring that Johnson was a troublemaker and that he wanted telegrams to go out that after- noon laying the employees off. Also, I note the tim- ing of the layoff only 3 days after Johnson began soliciting signatures for the petition and further- more the fact that Johnson received no additional work from the Respondent from the date of the in- ception of the solicitation of signatures. Addi- tionally, Newburger and Dignan both knew of Johnson's past complaints as evidenced by the meetings with Newburger and Dignan. Moreover, the Respondent is not a large em- ployer, its total driver complement at the time of the layoff was approximately 15 over-the-road drivers. These drivers, though perhaps driving leased equipment for other companies, report from time to time on a routine basis to the Respondent's yard and the Respondent's dispatcher. Thus, in view of the fact that this is a small employer and in view of the foregoing factors, an inference is raised that the Respondent had knowledge of the union activities of its employees and especially of the ac- tivity of Leonard Johnson soliciting signatures in its yard on December 4, 5, and 6.3 Although there are some imponderables pre- sented by this case, I finally find and conclude, by reason of all of the foregoing, that Johnson was discharged discriminatorily because of his union ac- tivities by the Respondent in violation of Section 8(a)(3) and (1) of the Act. In coming to the foregoing conclusions I have considered the testimony, which I accept, to the ef- fect that Respondent suffered a considerable loss of business during the time that the events herein oc- curred. It might well be that Johnson and the others who were laid off on December 6 would have been laid off sooner or later because of this loss of busi- ness. However, I find and conclude that Johnson would not have been included in the layoff had it not been for his union activity. While economic reasons might have entered into the consideration for the layoffs generally, I find and conclude that in the case of Johnson the layoff was motivated in large part by the fact that the Respondent knew that Johnson was engaged in the activity of solicit- ing signatures for the election of Ray Hill as union 3 See Wiese Plow Welding Co , Inc , 123 NLRB 616. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steward. This conclusion is strengthened by the testimony that Newburger had shown previously that he did not favor Hill. Even more significant is the selection of Johnson for layoff out of seniority. Respondent claims that it offered reinstatement in January 1969, at the grievance meeting held at the LaSalle Hotel in Chicago. In support of this claim is the testimony of Stein, Glimco, and Dignan to the effect that Johnson was offered reinstate- ment by either Glimco or Dignan. As noted above, Stein stated that when the offer was made Johnson refused in so many words to accept the offer. Glim- co and Dignan stated that Johnson merely shrugged his shoulders. Johnson on the other hand, testified no such offer was made to him and stated that the only conversation which took place with regard to rehiring was a telephone conversation between Johnson and Mel Stein in which Johnson asked Stein whether the Respondent ever intended to rehire Johnson and Stein gave him no answer. I have heretofore refused to credit Stein and Dignan in their versions regarding the incidents of March 1968. Furthermore, I have refused to credit Stein in other respects. Accordingly, I do not credit either of them with regard to the offer of reinstate- ment. Because Glimco's testimony somewhat sup- ports that of Stein and Dignan, I, accordingly, do not credit his testimony either. I do, however, credit Johnson to the effect that he was never given an offer of reinstatement. Accordingly, I find and conclude that Respondent has refused to reinstate Johnson from the date of his layoff up to the date of the hearing herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III , above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recom- mended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully laid off Lenoard Johnson and refused to reinstate him, I recommend that the Respondent offer John- son immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from December 6, 1968, the date of Johnson's layoff, to the date of the offer of reinstatement, less Johnson's net earnings during the said period. Backpay shall be computed with interest on a quar- terly basis in the manner prescribed by the Board in F. W Woolworth Company, 90 NLRB 289-294, and Isis Plumbing & Heating Co., 138 NLRB 716 To facilitate the computation, as well as to clarify Johnson's right to reinstatement and employment, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Leonard Johnson to discourage membership in, and activities on behalf of Loca 1 710, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct the Respondent has interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent , Dependable Truck Leasing, Inc., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Local 710, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers , or any other labor or- ganization, by laying off employees or discriminat- ing against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named Union or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all DEPENDABLE TRUCK LEASING, INC 1183 such activities , except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment , as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Leonard Johnson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 Recommended Order. (c) Post at its yard and offices in Chicago, Il- linois, copies of the notice attached hereto as an "Appendix."4 Copies of said notice, on forms pro- vided by the Regional Director for Region 13 shall, after having been duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13 in writing, within 20 days from the date of the Trial Examiner's Decision, as to what steps the Respond- ent has taken to comply herewith.5 4 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 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 . In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board" shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify the Regional Director for Re- gion 13, in writing , within 10 days from the date of this Order as to what steps the Respondent has taken to comply herewith " An Agency of the United States Government WE WILL NOT discharge or lay off any em- ployee or otherwise discriminate against him because of his membership in, or activities on behalf of Local 710, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor or- ganization , to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the mutual pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Sec- tion 8(a)(3) of the Act. WE WILL offer Leonard Johnson immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suf- fered by reason of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining members of Local 7 10, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, or any other labor organization, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condi- tion of employment as authorized by Section 8(a)(3) of the Act. DEPENDABLE TRUCK LEASING, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.