Digital Paging Systems of Toledo, Inc.

DIGITAL PAGING SYSTEMS OF TOLEDO, INC. Digital Paging Systems of Toledo, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA-12312 April 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 24, 1979, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief; the General Counsel filed limited exceptions and a brief; and the Charging Party filed a brief in opposition to the 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,¹ and conclusions² of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Digital Paging Systems of Toledo, Inc., Toledo, Ohio, its officers, 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Administrative Law Judge's determination that Van Tuinen was discharged for her union activity and is entitled to reinstatement. As the Administrative Law Judge found, Van Tuinen's discharge on September 21, 1978, was clearly because of her union activity and violated Sec. 8(a)(3), and it is not clear whether the Respondent at some later date would have terminated Van Tuinen on the basis of her sales record. It may be that Van Tuinen, who had previously been a satisfactory salesperson, would have improved her performance or would have been retained by the Respondent in any event. By its unlawful conduct on September 21, the Respondent eliminated the opportunity for Van Tuinen to demonstrate what her subsequent production would have been and has prevented resolution of the uncertainties as to what would have happened if Van Tuinen had remained an employee after September 21. In the circumstances, we consider it speculative whether, absent discrimination, Van Tuinen would have been discharged for reasons privileged under the Act. See Masco Products, Inc., 198 NLRB 424 (1972); The Lima Lumber Company, 176 NLRB 696 (1969). 3 We hereby conform the Administrative Law Judge's notice with his recommended Order. agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected concerted activities. WE WILL NOT interrogate our employees about their or other employees' union beliefs, desires, or activities in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT refuse to recognize and bargain with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in the following appropriate collective-bargaining unit: All communication representatives, solicitors, and bookkeeper/secretary, excluding confidential employees (head bookkeeper) and professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL, upon request, recognize and bargain with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in the bargaining unit set forth above, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL offer to Carol Van Tuinen immediate and full reinstatement to her former posi- 249 NLRB No. 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and WE WILL make her whole for any loss of pay or other benefits, with interest, suffered by reason of the discrimination against her. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act. DIGITAL PAGING SYSTEMS OF TOLEDO, INC. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on August 28, 1979, at Toledo, Ohio. The original charge was filed on October 5, 1978. The amended charge was filed on November 3, 1978. The complaint in this matter was issued on November 28, 1978. The issues concern (1) whether Respondent discriminatorily discharged Carol Van Tuinen because of her union or protected concerted activity or belief thereof in violation of Section 8(a)(3) and (1) of the Act, and (2) whether Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by all parties and have been considered. Upon the entire record in the case and from my observation of the witnesses, I hereby make the following:¹ FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admissions therein. Digital Paging Systems of Toledo, Inc., is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio, and at its facility located in Toledo, Ohio, the only facility involved herein, hereinafter called Respondent's Toledo facility, Respondent is engaged in the business of providing paging services. Annually, in the course and conduct of its business operations at its Toledo facility, Respondent receives gross revenues in excess of $500,000; annually, in the course and conduct of its business operations, Respondent receives, at its Toledo facility, goods and supplies valued in excess of $50,000 directly from points located outside the State of Ohio. As conceded by Respondent and based upon the foregoing, it is concluded and found that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Supervisory Status2 At all times material herein, the following named persons occupied the positions set opposite their respective names, and have been, and are now, agents of Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Art Finfer General Manager Rick Meckler Sales Manager B. Appropriate Bargaining Unit³ The following employees of Respondent, at its Toledo facility, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All communication representatives, solicitors, and bookkeeper/secretaries, excluding confidential employees (head bookkeeper) and professional employees, guards, and supervisors as defined in the Act. C. The Facts Respondent is one of a number of companies owned by Digital Paging Systems which operate in a number of cities. Respondent's business is that of providing paging systems. Apparently, such communication systems operate under governmental licensing, requiring antenna and other communication-related facilities. Respondent sells its communication services by making contracts with customers whereby Respondent leases "pagers" to such customers, and the customers use such "pagers" in using Respondent's communication system. Some and apparently most or all of the pagers are miniature pocket-type pagers. Some of the "pagers" are apparently "voice" type and some are apparently "tone" type. It is clear that the customers can use the "pagers" for the receipt of communication, "voice" or "tone," depending upon the type "pager." Whether some of the "pagers" are of the "two-way," receipt and transmission, type is not revealed by the record. If a customer has a "pager" that malfunctions or needs repair, Respondent simply replaces the pager by giving the customer a working "pager" and takes back the defective "pager." For repair the "pagers" are sent away to another facility. Respondent merely leases "pagers" and services "pagers" by seeing that 2 The facts are based on the pleadings and admissions therein. 1 Errors in the transcript have been noted and corrected. 3 The facts are based on the pleadings and admissions therein. DIGITAL PAGING SYSTEMS OF TOLEDO, INC. functioning "pagers" are provided for customers using its services. Respondent in this case is the Digital Paging Systems of Toledo, Inc., which services the Toledo, Ohio, area.4 It is the smallest company, referred to as an office in this proceeding, of the Digital Paging System. The Toledo office apparently opened around late 1974 or in January 1975. President Edward Busch and Manager Marvin Taylor were involved in the opening of the Toledo office. Carol Van Tuinen was interviewed for employment in October 1974, and started to work at the Toledo office around January 1, 1975. At such time, Marvin Taylor was manager, and Van Tuinen's job, as a fulltime employee, was to do anything other than what Taylor did. Van Tuinen was bookkeeper, receptionist, secretary, and telephone solicitor (for accounts). Van Tuinen's salary was $115 a week, and the Company paid for the parking of her car. In March 1975, President Busch made Van Tuinen a salesperson and Van Tuinen received a raise. Whether her salary was raised to $135 per week or she received a raise of $135 per week is not clear. In connection with her new job as a salesperson, Van Tuinen had an expense account and received pay for gas and car expenses. In her job as a salesperson, Van Tuinen reported to the office in the morning, made telephone solicitations, and then went out and made personal calls on companies and made sales. Her job involved the sale of services of a one-way type of communication. For such communication, Van Tuinen secured contracts relating to the leasing of miniature pocket-type "pager" receivers. In March 1977, Respondent considered that it had problems with the Toledo office. Such problems appeared to be with recordkeeping, with questions of missing "pagers," and with allegations of wrongdoing by Manager Marvin Taylor. As a result of the foregoing, Respondent removed Taylor as manager. Respondent considered that other than Taylor Van Tuinen was the person who would be knowledgeable about its customers and sales. In March 1977, Respondent made Van Tuinen manager of the Toledo office. Although the sales by the Toledo office, insofar as record reports, were not as high after Van Tuinen became manager as they had been, Respondent did not consider the reports made by Taylor to have been reliable. Respondent's Toledo office maintains a record of sales contracts which are entered on record when turned in but which reflect the effective date of the contracts. Normally, reports of sales are not forwarded to Digital's home office. Rather, reports of connects and disconnects of customers from the system are forwarded, and the main concern of Digital's home office is the growth of business, the excess of "connects" over "disconnects." Administrative supervision by Digital over the offices appears largely to be by the use of telephone communication and transmittal of various summaries and reports. There is some dispute between Van Tuinen and Respondent as to whether Van Tuinen was considered to be a good manager. To a large extent the opposing witnesses appear to emphasize that which is more favorable to their viewpoint. During her first month or two, Van Tuinen appeared to have done a good job concerning collections of accounts receivable. At least, her reports concerning the same appeared to be good. Digital Paging Systems' auditor, on April 5, 1977, transmitted a memorandum to Van Tuinen indicating praise of her work. Vice President Slodowitz credibly testified that he had not specifically authorized such memorandum, that, however, auditor Quinn was authorized to send out memoranda without clearance, and that he never disavowed such memorandum. In sum, the facts reveal some praise for Van Tuinen's work as of April 1977. Later, on May 24, 1978, Respondent sent the following memorandum to a number of managers, including Van Tuinen: MEMORANDUM TO: BOB BAUER, ART FINFER, MIKE FRAWLEY, MAC MCCALL, TOBY TOBIAS, NICK MERVOS, ROMAN KOZAK, CAROL VAN TUINEN, ROSE MARIE KUHLMEIER, and ARLENE MUSSELWHITE FROM: ROBERT SLODOWITZ DATE: MAY 24, 1978 SUBJECT: RECORD ACHIEVEMENT I am pleased to announce that the first five months of this year have far exceeded both our forecast and all prior year results by at least 50% in both the radio paging and telephone answering service areas. The creativity and hard work by all of our managers has certainly shown the results we knew could be achieved. As a little token of Digital's appreciation for that extra effort, which includes that midnight service call or babysitting with a broken Amcor, I would like each of you to have a dinner on Digital (with your wife or husband, of course) and submit the bills to me for reimbursement. Please keep up the good work. Best wishes, Robert Slodowitz Vice President Slodowitz testified to the effect that such memorandum was in effect in appreciation for the overall work of all managers. Nevertheless, such memorandum constitutes some evidence of expressed praise by Respondent of Van Tuinen's work. Van Tuinen testified to receiving praise at various times from Respondent's officials. Slodowitz's and Finfer's testimony corroborated Van Tuinen's testimony on this point. Van Tuinen's testimony, however, also indicated that there was a lack of real criticism by Respondent's officials concerning her work as manager. Slodowitz's credited testimony reveals that there was no written criticism of a direct nature, that there were telephone calls wherein both praise and criticism were expressed, and that the summaries and reports were self-revealing of the areas of deficiencies in performance. 4 Respondent is a separate corporation, a part of a larger corporate setup, and treated as a local office of the larger corporate setup. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Where such method of criticism and praise is utilized as a means of supervision, difficulty is encountered in a factual evaluation thereof. The overall facts in this case reveal that Respondent was unhappy about the sales or growth of customers in the Toledo office. Thus, it is clear that Respondent had emphasized the need for sales to Van Tuinen prior to her August 16, 1978, demotion from manager. Koepplinger's credited testimony revealed that Respondent's officials talked to her about the need for more sales after Van Tuinen's discharge on September 21, and that Van Tuinen had emphasized the need for more sales in the past. This is supportive of Respondent's officials' testimony concerning the problem of sales during Van Tuinen's time as manager. Further, the facts reveal that there had been a problem with record controls and the collection of accounts receivable in the Toledo office prior to Van Tuinen's August 16 demotion from manager. Thus, for 6 months in 1978, Respondent had had its Pittsburgh office helping out or handling the collection of accounts receivable in the Toledo office. The overall facts reveal that some of the problems present when Manager Taylor was removed in March 1977 were not solved by the time of the demotion of Van Tuinen on August 16, 1978. Thus, there were "pagers" carried on Respondent's inventory which apparently could not be accounted for. It is not clear whether or not these "pagers" were out on the system and simply could not be identified as to where they were because of a mixup in records as to identifying numbers. Events of August 1978 In early August 1978, Finfer, manager of Digital's Cleveland office, was given responsibilities over the Toledo office. At such time, Van Tuinen continued as manager of the Toledo office. On August 16, 1978, Finfer removed Van Tuinen as manager of the Toledo office, demoted her to the status of a salesperson, and informed her that there would be a new manager and that in the meantime he would manage the office. Finfer informed Van Tuinen that her salary would remain the same as she received as manager until September 1, 1978; and that after September 1, 1978, her salary would change. Finfer set a sales quota on which her commissions would be based. The testimony concerning Van Tuinen's salary and commission is not clear in all respects. Finfer apparently set a base salary for Van Tuinen and also set a quota of sales upon which her commissions would be based. There is a dispute as to whether Finfer stated to Van Tuinen that she would be subject to discharge if she did not meet the sales quota. Considering all of the facts and circumstances, I am not persuaded that Finfer told Van Tuinen that she was subject to discharge if she failed to meet the quota. I am persuaded that he did tell her what the quota of sales was for her commissions. Finfer told Van Tuinen that she would have a sales quota of 40 "pagers" per month; that if she sold contracts (leases) of 40 "pagers" per month that she would receive a commission of $5 per "pager"; that the same commission was in effect for sales from 40 through 49 "pagers" per month; and that if she sold contracts (leases) of 50 "pagers" per month that she would receive a commission of $10 per "pager." Although there appears to be a dispute as to how Respondent evaluated Van Tuinen at the time of her demotion on August 16, 1978, the overall facts reveal that Respondent demoted Van Tuinen because it believed it needed a new manager. The overall facts reveal that Respondent considered Van Tuinen to be a good salesperson. Considering this, I find it hard to believe that Respondent was interested in getting rid of Van Tuinen completely. Similar to its reasons for selecting Van Tuinen as manager, it would appear that Respondent would believe that Van Tuinen was knowledgeable as to customers and sales and would want to retain a person considered to be a good salesperson. Thus, I am persuaded that Respondent demoted Van Tuinen because of its belief of a need to change managers and its desire to keep her as a salesperson. Although the quota of 40 sales of "pagers" appears to have been high in accordance with past performance, I am persuaded that Finfer set such quota as a means of spurring sales and that he believed Van Tuinen to have the ability to meet such quota. In the past, Van Tuinen had had some months of high sales and had related the same to Finfer. The overall facts reveal that Van Tuinen was upset and displeased with her demotion from manager to that of salesperson. Such displeasure appears to have affected her work performance. The sales record exhibit reveals sales recorded for Van Tuinen in the month of August as follows: Sales on July 6, 20, and 31, but with the sale of July 20 struck through; sales on 8/1-four; sales on 8/ 2-two; sales on 8/7-one; sales on 8/8-one; sales on 8/ 10-one; sales on 8/12-one; sales on 8/15-one; and sales on 8/16-five. Thus, as of the end of August 16, 1978, Van Tuinen had made a total of 16 sales contracts. After August 16, 1978, Van Tuinen made eight sales for the month of August. Such sales were as follows: On 8/ 18-one; on 8/19-one; on 8/24-one; on 8/26-one; on 8/30-two; and on 8/31-two. During the first 11 days of September 1978, Van Tuinen had sales as follows: On 9/1-one, and on 9/8-three. Thus, as of September 11, 1978, Van Tuinen had made four sales for September 1978. The General Counsel contends in effect that Van Tuinen could not be expected to get into the swing of sales in a short period of time. Van Tuinen's testimony was to the effect that she was on sick leave for 1 of the last 2 weeks in August, that despite her removal as manager she still had to carry out many of the functions of manager since Finfer in effect was managing the office from a distance, and that much of her time was taken up with service calls. Although Van Tuinen testified that she was sick during 1 of the weeks in August, after August 16, 1978, the sales records indicate that contracts were secured by Van Tuinen which had effective dates in all of such weeks. Regardless, whether sick during 1 week or not, Van Tuinen's sales after August 16, 1978, did not compare favorably with her sales while she was manager and had the responsibilities of management. When pressed on cross-examination, Van Tuinen's testimony corroborated DIGITAL PAGING SYSTEMS OF TOLEDO, INC. Finfer's testimony that he was supervising the employees by instructions on the telephone. As to the General Counsel's contention that Van Tuinen would have needed time to get into the swing of sales, Van Tuinen's testimony and the record negate a belief that her performance could not at least have measured up to her past performance. After September 11, 1978, Van Tuinen had sales as follows: On September 13-one;5 on September 15-three; on September 19-one; on September 22-two; and on September 23-one. As indicated later herein, Van Tuinen was discharged on September 21, 1978. Around August 31, 1978, General Manager Finfer decided on the appointment of Rick Meckler as the manager of the Toledo, Ohio, office. Up to that point in time Meckler had been a salesman in Digital's Pittsburgh office. Either on that date, or shortly thereafter, Finfer was talking to someone at the Toledo office when Van Tuinen picked up the telephone and told Finfer that she wanted to talk to him for a minute. When Finfer finished his conversation with the other person, Van Tuinen asked if he had found a new manager. Finfer told her that he had and that the new manager was Rick Meckler. It is unclear when Respondent made it known to other employees that the new manager had been selected or exactly how Meckler was introduced to the other employees. In any event, prior to September 4, 1978, Van Tuinen had communicated to the two other employees in the bargaining unit, Reese and Koepplinger, that she was no longer manager and was now a salesperson. On or about September 4, 1978, Van Tuinen and the two other employees contacted Van Tuinen's attorney. Van Tuinen's attorney suggested that they contact a union. Following this, Van Tuinen and the other employees contacted the Union and made an appointment to see a union representative.⁶ On September 6, 1978, Rick Meckler appeared at the Toledo office and was there for about an hour. Again, on September 7, 1978, Meckler was at the Toledo office for about an hour. Finfer was also present on such occasion. Apparently this was the occasion when Meckler was introduced to the employees. On September 7, 1978, Van Tuinen, Reese, and Koepplinger, the three employees in the bargaining unit, went to Teamsters Local 20's office, saw a union representative, and signed union cards. The union cards that were signed were as revealed by the following card: 5 These are the effective dates of the contracts. There may be a divergence between the date the sale was made and the effective date of the contract. Thus, some sales are indicated concerning contracts with effective dates after the September 21 termination of Van Tuinen. TEAMSTERS LOCAL ORGANIZING COMMITTEE 6 The overall facts suggest that Van Tuinen was the driving force in the question of union activity. Thus, on August 16, 1978, Van Tuinen had made it clear to Finfer that she would not voluntarily give up the position as manager and that he would have to take such position from her. The overall facts indicate that Van Tuinen was not acting in a spirit of cooperation with the goals of management after her demotion. Affiliated with the I.B. of T., C., W. & H. of America I HEREBY ACCEPT MEMBERSHIP IN TEAM- STERS LOCAL NO. affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and of my own free will hereby authorize the above union to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment. Employed by Print Name Home Address City State Zip Code Home Phone Class of Work Weekly Rate Shift Social Security Number Date Signature Witness It appears that the employees knew that there would be a question as to when Meckler would be in the office for any length of time. In this context, the union representative, Woda, made statements to the employees as is revealed by the following credited excerpts from Van Tuinen's testimony. Mr. Woda stated to us that he would be coming up to the office with another gentleman to talk to Digital Paging about negotiation with the Union. He stated would we please contact him and let him know when Rick Meckler would be in the office, because he didn't want to make an unnecessary trip and Nancy Reese said that when she was sure that Rick would be into the office for a whole morning or a whole afternoon, that she would call the Union and let them know so that they could come up. Although it is not clear as to the hour, or as to how long he stayed, Meckler returned to the Toledo office on September 11, 1978. On the same date Finfer had ascertained from the bookkeeper the number of sales recorded for Van Tuinen as of September 11, 1978. Thereafter, on September 11, 1978, Finfer and Slodowitz conferred, apparently by telephone, concerning the termination of Van Tuinen. Finfer and Slodowitz testified to the effect that the decision to terminate Van Tuinen was finalized on such date. Van Tuinen, in fact, was not terminated until September 21, 1978, after the Union's demand for recognition as the bargaining representative of the bargaining unit employees, and after knowledge on September 19, 1978, by top officials of such demand. As set forth hereinafter, I credit Godley's testimony that Meckler told her on or about October 6, 1978, that Van Tuinen was discharged because of union activity.⁷ Because of all such facts in total context, a question arises whether Finfer's and Slodowitz's testimony as to the 7 The testimony was to such effect, and, in view of all of the facts. reveals the event to have occurred on or about October 9, 1978. DECISIONS OF NATIONAL LABOR RELATIONS BOARD events of September 11, 1978, constitutes fabricated testimony. Considering all of the facts and their testimonial demeanor, I am persuaded that their testimony is not fabricated testimony, but to some degree I am persuaded that it is conclusionary and rationalized testimony. Thus, Slodowitz appeared a truthful witness in general. Finfer also appeared generally to be testifying truthfully. Finfer, however, revealed upon questioning as to the effect of quotas to be testifying to rationalized conclusion. The most persuasive evidence in this case concerning the question of Van Tuinen's discharge was the testimony of Godley as to the conversation with Meckler. Considering all of the foregoing, I am persuaded and find that the facts are that Finfer was concerned over Van Tuinen's lack of sales on September 11, 1978; believed that she was not trying and would not try to cooperate with his sales goals; believed that Van Tuinen would not come close to the quota of 40 sales by the end of September; and that a decision was made by him and Slodowitz to terminate Van Tuinen with the assumption that she would not obtain a proper number of sales by the end of September. I am not persuaded, however, that the decision was to fire her immediately. Rather, I am persuaded that the firing of Van Tuinen was intended to occur at the end of September and was to be on the basis of a lack of sales. Finfer testified to reasons why he did not fire Van Tuinen between September 11, 1978, and September 21, 1978. It suffices to say that the record reveals Finfer to be an energetic and a go-getter type person. I find it hard to believe that if he had determined to fire Van Tuinen immediately that he would not have rearranged some plans and fired her himself or have had the new manager, Meckler, fire her. On September 12, Union Representative Woda appeared at the Toledo office and presented Manager Meckler with a demand for recognition as is revealed by the following letter: Date: September 12, 1978 Digital Paging of Toledo, Inc. Hillcrest Hotel, Room 402 Madison & 16th Streets Toledo, Ohio Attn: Rick Meckler Dear Sir: This is to advise you that the Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 20 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, represent a majority of your employees, eligible for membership in our Union, all regular full time and part time sales, dispatchers, service and office and clerical employees, excluding all professional, supervisory, confidential employees as defined in the Act. We hereby offer to submit the authorization cards signed by your employees to an impartial person for examination and count. Any Discrimination or reprisal directed against these employees will cause this Local Union to engage in all legal and economic recourse to protect their rights guaranteed by Federal Law to join this Labor Union. We hereby request that your Company recognize this Union as the exclusive representative of the employees as authorized and that negotiations on the terms and conditions of a collective bargaining agreement commence at the earliest possible date. Very truly yours, Daniel G. Farbrother Secretary-Treasurer Meckler, who received the above letter, testified to the effect that he knew virtually nothing about unions or authorization cards, and that he asked Woda to explain what authorization cards meant. While Meckler may not be an expert on labor relations, I do not believe or credit his testimony to the extent that he did not know that there was a demand for recognition by the Union or the seriousness of the matter. The question arises as to whether Meckler communicated the facts of the Union's demand to his superiors at this time, or, if not, when he did so. The overall facts reveal that Meckler was concerned over the effect that the demand for bargaining would have on his continued status as manager and appeared to follow a course of hunting for possible answers or hoping the problems would disappear. On September 12, 1978, Meckler questioned Van Tuinen about the union question as is revealed by the following excerpts from Van Tuinen's testimony:8 I returned the telephone call to Rick Meckler and Rick said, "There has been two Union men in the office, Carol. What do you know about it?" And I said, "I know nothing about it." He said, "Carol, I know you know about it. There has been two Union men in the office and I want you to tell me what you know about it." I said, "Rick, if they are there to buy pagers and you need help, I will be happy to come back in and help you out." He said, "They are gone now." He said, "Are you a member of the NOW organization?" I said, "No." He said, "Are you a member of the womens liberation?" I said, "No." He said, "I was a manager once, and I used to sell dolls where you raised their arms and their boobs grow." He said, "I think it's got something to do with that type of thing." I said, "I have no idea what you are talking about, Rick." He said, "I think that you are involved in all this." I said, "No, I am not," and that was the end of it. On September 13, 1978, Meckler again questioned Van Tuinen about the Union as is revealed by the following credited excerpts from her testimony: 8 To the extent that Meckler's testimony is contrary to the facts found herein, it is discredited. DIGITAL PAGING SYSTEMS OF TOLEDO, INC. The next morning, the thirteenth, and he again questioned me. He said, "I want to know about the Union." I said, "I don't know anything about it." He said, "Then how could they have gotten my name?" He said, "Someone had to give them my name." He said, "I have only been here just for such a short time, there is no way they could have gotten my name." And I said, "I have no idea. Maybe the hotel gave it to them." He said, "That's impossible." He said, "As far as I know, you are the only one that could have given it to them." There is no question that Meckler interrogated Van Tuinen, Reese, and Godley about the Union. His testimony confirmed such interrogation. Godley's testimony, however, was to the effect that the interrogation of her by Meckler occurred around October 6, 1978. Van Tuinen testified in addition that Meckler questioned her every day. I do not credit such testimony and credit Meckler's testimony that he was not in Toledo on September 14 through 17. However, I do credit Van Tuinen's testimony to the effect that Meckler interrogated her on days other than September 12 and 13, and find that such interogation occurred on September 18, 19, or 20, 1978. I credit Van Tuinen's testimony to the effect that Meckler questioned her in effect as to who was behind The Union and who had started it and expressed the opinion that he was in trouble. On or about September 19, 1978, Finfer was in Toledo for the purpose of picking up a new automobile. Without going into detail, Finfer waited around at the dealer's for his car, had a lunch and long discussion with Meckler, who apparently was not sure he wanted to stay in Toledo, and late in the day discovered the Union's letter demanding recognition. Finfer telephoned the Respondent's attorney; telephoned Slodowitz concerning the demand for recognition; and telephoned the Union in acknowledgement of the letter of demand.⁹ Events of September 21, 1978 On September 21, 1978, Respondent terminated Carol Van Tuinen from her position as salesperson. As previously noted, Respondent maintains sales records. The bookkeeper, Godley, was on vacation from September 15 until after September 21, 1978. Sales records for September 15 and thereafter were not posted as of September 21, 1978. Van Tuinen credibly testified to the affect that what occurred before she met Finfer in the restaurant was as is revealed by the following credited excerpts from her testimony:¹⁰ Q. Now, what was your last day of work there? A. The Twenty-first of September. Q. How did you find out that it was going to be your last day of work? A. It was late afternoon, and Rick Meckler paged me and he asked me to call the office, which I did. And he said, "Could you please come into the office?" And I told him that it was really busy on calls. He said, "Carol, it won't take very long. I really need your help. Could you please come into the office?" And I told him I would. When I came into the office, he said, "Could you wait just a minute?" He said he had to go back downstairs. And when he came back up, he had brought Art Finfer. He said that he was at the bar. He brought him up. And from there Art Finfer had gone downstairs-said, "Go downstairs and I will be there in a minute." And Art went in the hallway and stood in front of the elevator and waited for it to come. And Rick put his arms around me and said, "Carol, I am really sorry about this. If there was anything I could do, but I am too new." What occurred in the restaurant is revealed by the following credited aspects of the testimony of Finfer and Van Tuinen:¹¹ [Excerpts from Finfer's testimony] I asked Carol how many pagers she had sold since the 1st of September, and she said she didn't know. At that point, Rick said, "Four." I told her that she was going to be terminated. I told her-oh, no. Excuse me. Before that I asked her what she had going in the ways of sales. She told me that she had a possibility of a sale at the Holiday Inn, and a couple of other possibilities. I said that was very unfortunate, because I was going to be terminating her at that point for lack of sales. At that point Mrs. Van Tuinen lost her temper, started to raise her voice and left. [Excerpts from Van Tuinen's testimony] He said, "Lack of sales." I said, "That's impossible." I called him a liar and a cheat, and I said he had broken the contract that he promised that the three of us would have, Colleen, myself and Rick in selling. I told Rick, I said, "What about the Holiday Inn sale that I had?" He said, "Carol, there is nothing I can do. 9 Some of the testimony is contradictory as to whether Meckler telephoned Finfer on or about September 19 about the letter demanding recognition or whether Finfer discovered it on his own. I credit Finfer's testimony as indicated. The overall facts would not be affected by a different finding. Similarly, the testimony as to whether Finfer first telephoned Slodowitz and then telephoned the attorney at Slodowitz's instruction or whether Finfer telephoned the attorney and then telephoned Slodowitz is contradictory. A finding one way or the other would not affect the overall results herein. Art Finfer asked me for my car keys. I told him I had to have a way home. He demanded I give him 10 I credit Van Tuinen's testimony over Meckler's where in conflict. 11 The testimony of witnesses contradictory of the facts found is discredited. DECISIONS OF NATIONAL LABOR RELATIONS BOARD my car keys right away, and I told him I would not give them to him at that time. I ran from the bar to the elevator, to the upstairs. I went to the office, pounded on the door. I went in and I got my briefcase and my other personal belongings and I left. By the time I got back out of the office door, Art Finfer was running down the hall after me. I went out the back hallway of the hotel and on down to my car and went home. Also at the bar he threatened. He said, "If you do not give me the keys, I am going to put a warrant out for your arrest." I told him to do it, that I had a right to get home. At some date prior to October 6, 1978, apparently after September 7, 1978, the Union filed a representation petition involving Respondent's employees in the appropriate bargaining unit. Said petition was docketed as Case 8-RC-11514. On October 6, 1978, the parties met at the Regional Office, apparently for a hearing or prearranged conference, and executed a Stipulation for Certification Upon Consent Election. A charge, dated October 3, 1978, was filed with Region 8 on October 5, 1978, and docketed as Case 8- CA-12312. Said charge was on 8(a)(1), (3), and (5) allegations. It alleged majority status, and alleged that a bargaining unit employee had been discharged for activities on behalf of the Charging Party Union. The above charge was served on Respondent by registered mail with date of delivery thereof shown as of October 6, 1978. Godley, bookkeeper for the Respondent's Toledo office, credibly testified to the effect that on or about October 6, 1978, she picked up the mail which was left at the hotel where Respondent's Toledo office was located, and that she took the same to Meckler. What occurred is revealed by Godley's credited testimony. I normally went between ten and eleven o'clock, because that's when our mail usually came in, and I picked up the mail and I took it upstairs and sorted it and began opening it, and I noticed the National Labor Relations Board on the top of the paper, and I took it in and laid it on Mr. Meckler's desk. He was on the phone at the time, and he came out. I went back to my desk and I sat down, and he came out I would say within three to five minutes. He had the papers in his hand. He said to me, "Do you know anything about this Union business?" And I said, "No, I don't. Why?" And he said, "Well, you do know that Carol was fired because of this?" And I said, "No. I don't know anything about it." Meckler testified in denial of such conversation and testified credibly to the effect that he was not, and could not have been, at the office on October 6, 1978, and that he was not at the office on October 7 or 8, a Saturday and Sunday, but was in the office on October 9, 1978. Of all of the witnesses in this proceeding, Meckler was the one with the appearance of least credibility. I note that Godley's testimony did not fix the time of the events precisely. I am persuaded that Godley appeared to be a thoroughly truthful witness and appeared to have no interest in the outcome of the proceeding. I credit her testimony and I find that the event occurred on October 9, 1978. D. Conclusions 1. The facts are clear that Respondent, by Meckler, interrogated employees on September 12 and 13, and on other dates between September 12 and October 9, 1978, about the Union, what they knew about the Union, and who started the Union. Such interrogation does not reveal itself to have had a legitimate purpose and employees were not given assurances of nonreprisal. Accordingly, it is concluded and found that Respondent, by such conduct, engaged in conduct violative of Section 8(a)(1) of the Act. 2. Considering the facts relating to Respondent's discharge of Van Tuinen on Setpember 21, 1978, I am persuaded that the facts reveal that the discharge of Van Tuinen on such date was discriminatorily motivated because of belief of her union activity and violative of Section 8(a)(3) and (1) of the Act. The persuading factors are the facts which reveal a basis for Respondent's belief that Van Tuinen would be the one sponsoring union activity, the timing of events, and Meckler's admission to Godley to the effect that Respondent had discharged Van Tuinen because of her union activity. Thus, Van Tuinen's response to Finfer concerning her demotion from manager on August 16, 1978, revealed her strong displeasure with such demotion. Meckler's remarks to Van Tuinen on September 12, 1978, reveal a belief that she was an activist, a "NOW"-type person. The timing of events reveals a discharge of an activisttype person, reasonably believed to be a leader in the ongoing union activity, 2 days after top management became aware of union activity. Finally and most persuasive, Godley's credited testimony reveals an admission by Manager Meckler that Van Tuinen was discharged because of her union activity. ALthough I am persuaded, as the credited facts reveal, Respondent was seriously comtemplating the discharge of Van Tuinen at the end of September if her sales were not at an acceptable level, and that this contemplation was without regard to any union or protected concerted activity of Van Tuinen, I am persuaded that the facts reveal that Respondent accelerated its decision to discharge Van Tuinen because of its belief of her union activity. Although, had Respondent not discharged Van Tuinen on September 21, 1978, Respondent, without discriminatory considerations, very well might have discharged Van Tuinen at the end of the month, one can only speculate from this record whether between September 21 and the end of the month Van Tuinen's sales would have been of such a nature that such discharge would or would not have occurred. 3. The facts are clear that the Union had proper authorization cards from all three of the employees in the appropriate bargaining unit on September 12, 1978. The facts are clear that since that date Respondent has refused to bargain with the Union. The commencement of the unfair labor practices of unlawful interrogations as to DIGITAL PAGING SYSTEMS OF TOLEDO, INC. employee union beliefs, activities, or desires, coupled with the discriminatory discharge of one of three employees in the bargaining unit, reveals pervasive unfair labor practices of such a nature that the possibility of erasing the effects of past unfair labor practices and of ensuring a fair election by the use of traditional remedies, though present, is slight, and employee sentiment once expressed though cards, on balance, is better protected by a bargaining order. Accordingly, it is concluded that the facts reveal, in accord with Gissel, 12 that Respondent has violated Section (a)(5) and (1) of the Act by refusing to bargain with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. Having found that Respondent discharged Carol Van Tuinen in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent offer Van Tuinen immediate and full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to her seniority and other rights, privileges, or other working conditions, and make her whole for any loss of earnings or benefits suffered by reason of such discrimination by payment to her of a sum of money equal to the amount she normally would have earned as wages and other benefits from the date of her discharge to the date on which reinstatement is offered, less net earnings during that period. The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).¹³ It having been found that Respondent has refused to bargain with the Union (Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) as regards the appropriate bargaining unit employees, as a result of its refusal to bargain and accompanying unfair labor practices, it will be recommended that Respondent be ordered to bargain with the Union (Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America), as the exclusive bargaining representative of its employees in the unit found appropriate and, upon request, embody in a signed agreement any understanding reached. 14 The unfair labor practices involved herein, including the discharge of one employee in a bargaining unit of three employees, with such discharge occurring after a demand for recognition but while representation status was pending resolution, are of the type which have broad impact upon employees, and require a broad ceaseand-desist remedy. Such remedy will be recommended. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Digital Paging Systems of Toledo, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and had been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Carol Van Tuinen on September 21, 1978, Respondent has discouraged membership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. An appropriate bargaining unit of Respondent's employees is: All communication representatives, solicitors, and bookkeeper/secretaries, excluding confidential employees (head bookkeeper) and professional employees, guards, and supervisors as defined in the Act. 6. Since September 7, 1978, the above-referred-to Union has been designated as collective-bargaining representative of employees in the above-referred-to appropriate bargaining unit by a majority of such employees. 7. In the context of the conduct referred to above, and the facts otherwise referred to above, Respondent has refused to bargain with the Union as regards the employees in the appropriate bargaining unit since September 12, 1978, and thereby has violated Section 8(a)(5) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 12 N.L.R.B. V. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 13 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 14 The bargaining order, in accordance with Board practice involving Gissel cases, will be dated as of the date of the demand for recognition and commencement of the unfair labor practices, September 12, 1978. DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER¹⁵ The Respondent, Digital Paging Systems of Toledo, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall: (a) Discharging, or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected concerted activities. (b) Interrogating employees concerning their union activities or beliefs in a coercive manner. (c) Refusing to recognize and bargain with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representaive of its employees in the following appropriate bargaining unit: All communication representatives, solicitors, and bookkeeper/secretaries, excluding confidential employees (head bookkeeper) and professional employees, guards, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exericse of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Upon request, recognize and bargain with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 20, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and 1. Cease and desist from: Helpers of America, as the exclusive collective-bargaining representative of its employees in the bargaining unit set forth above, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Carol Van Tuinen immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay or benefits, with interest, suffered by reason of the discrimination against her in the manner described above in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at Respondent's office in Toledo, Ohio, copies of the attached notice marked "Appendix."¹ Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 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. 16 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."