Truck Drivers Union Local 164

EI)t'(ISIONS OF NAIO()NAI LABOR REI.ATIONS BOARI) Truck i)riiers Union Iocal 164, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Evelyn McCann and Mishele McCann. Cases 7 (A 14751(1) and 7 CA 14751(2) July 26, 1979 DECISION AND ORDER BY CIIAIRMAN FANNIN(; ANI) MI MBIRS JI NKINS AN) PNF I[I.() On March 20. 1979. Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Truck Drivers Union ocal 164, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Jack- son, Michigan, its officers, agents, successors, and as- signs, 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. I Respondent's motion to reopen the record to receive additional evidence is hereby denied inasmuch as that present employees would have to be dis- charged in the event the discriminatees are reinstated does not constitute a defense. APPENDIX NOrI('E To EMPIOYIEIS AND MEMBERS POSIIED BY ORI)DR () TIlE NAI()NAI. LABOR REI.AI()NS BOARI) An Agency of the United States Government WLi WIl. NOT discharge, reduce the employ- ee's salary, or otherwise discriminate against any office clerical employee for supporting Office and Professional Employees International Union, ILocal 10, AFIL CIO, or any other union. Wl Wl l1I N()I threaten to eliminate employees pension benefits for engaging in collective har- gaining. Wi \Ni11. N)I coercively question our employ- ees about their union sympathy. \Vi' Will. Not deny any employee time off for engaging in union activity. WI W ILL NOI in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed by Section 7 of the Act. Wi. Wil.l. oler Evelyn Mc('Cann and Mishele McCann immediate and full reinstatement to their former jobs or, if their jobs no longer exist. to substantially equivalent jobs, without preju- dice to their seniority or other rights and privi- leges, and make them whole for any loss of pay or other benefits since their discharge. plus inter- est. TRUCK [)RIVIRS UNION L()(AI. 164. INI R- NA I ONAI BR()orIIRtOO(I) (O) IIANISII IRS, CIIAiltI [FRS. WARI I()t'SIMIN AND HIA:.P- IRS O()F AMIRI(A D)ECI SION SIAlHI:NI ) I L CASL MARION C. LAI)wI(;, Administrative Law Judge: These consolidated cases were heard at Jackson. Michigan. on Jul 12 13, 1978.'1 The charges were filed on Januarx II and the consolidated complaint was issued on February 28. These cases arose when Truck Drivers Union Local 164. the Respondent (herein nion or ocal 164). suddenly without prior warning- discharged two of its three office clerical employees who had authorized another union to represent them. The primary issues are whether Local 164 (a) unlawlull threatened and interrogated the three em- ployees and denied one of' them time off in reprisal for en- gaging in the protected concerted activity, (b) discrmina- torily reduced the salary of' the one employee. and (c) discriminatorils discharged her and her daughter. in viola- tion of Section 8(a( I) and (3) of the Act. Upon the entire record, including my observation ot' the demeanor of the witnesses. and after due consideration of the briefs filed hy the General Counsel and Local 164. make the following: FINDINGS t Fi I. It RISI)I( II()N l.ocal 164 maintains an office in Jackson. Michigan. where it represents about 3,0(X) members employed in Hills- 'All dates are romn September 1977 through July 1978 unless other wise indicated. 243 NLRB No. 133 704 TRUCK DRIVERS UNION LO(XAL 164 dale, Jackson, and Lenawee counties, and where it annually transmits in excess of $100,000 in per capita taxes to the Teamsters International Union in Washington. D.C. Local 164 admits that, to the extent it employs office clerical em- ployees. it is an employer engaged in commerce within the meaning of Section 2(21. (6)., and (7) of the Act. and that the Union, Office and Professional Employees International Union. Local 10. AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. It. AI.I.FiEil) UNFAIR I.ABO(R PRA( II(FS A. Threat iand Belatled .4pprorul The three individuals on the Union's clerical staff were dues-paying members of the Local and were covered b the Teamsters Central States pension plan. In early September, one of them. Office Manager FEel,,:n McCann, went with office clerical employees Mishele McCann (Evelyn's daughter) and Majorie Lester into Sec- retary-Treasurer Martin Hands' office and told him. "Mar- tie. we would like to get a contract"-- referring to represen- tation by Office Employees Local 10. It is undisputed that Hands' first reaction was "No, no was. there is not going to be any contract in my office." He stated that they did not need one and that he would take care of them as long as he was there. In the discussion which followed, as the undis- puted testimony reveals, he threatened them with the loss of their pensions, telling them that "we couldn't have our Cen- tral States pension" if represented by another union. Evelyn McCann. who had over 22 years of service with the Local and who handled the Local's pension matters. responded that they could keep their pensions "because the original trust agreement said that all employees of the Local could belong to the pension fund." However, Hands did not with- draw the threat. In its brief, the local asserts that "Hands said that there was a possihiliti that they would lose their Teamsters pension if they went into the Office Workers Union" (emphasis supplied), but this clearly misstates the undisputed testimony. Inasmuch as there was an unequivo- cal threat to eliminate the existing pension benefits (a mat- ter of particular concern to Evelyn McCann because of her 22 years of service), I find that the threat was coercive and violated Section 8(a)(1) of the Act. In the same conversation, as Mishele McCann credibly testified. Hands also said that "if you think the reason you need a contract is because of your wages ... Evelyn made the most money because she had been there longest, and that I made the least amount of money because I was new there, and that Marge's pay was between ours because she had been there a lot longer than I had and not as long as Evelyn." Hands also mentioned that he was expecting some opposition at the upcoming (November 3) nomination meeting. Hands finally stated in the conversation that Mishele McCann and Lester could have a contract, but that (Office Manager) Evelyn McCann could not. Sometime later. in the latter part of September, Hands belatedly gave Evelyn McCann his consent to her being in the bargaining unit as well. It is undisputed that he told her. "You girls go ahead and get the contract but . . . I want you for technical rea- sons . . . to resign as office manager" so that "there will he no problems." He specificall explained. "I didn't mean fior you to leave . . . The purpose that I want you to write the letter is so that when yvo get the contract l[emphasis supplied] there will be no problem" of them saying "ou are manager and so forth." (She had been gi en the title of office man- ager in 1974. without any change in duties or ans increase in salary. as she credibly testified.) Thus, Hands was agree- ing to a three-employee bargaining unit. It is eident that. at that time, he did not intend to reduce Evelyn McCann's salary (which he earlier that month had stated was based on her seniority) and did not intend to replace her. In compliance with Hands' wish. Evelyn M\cCann suh- mitted her written resignation as "office manager" on Octo- her 14. effective that das. She continued to perform the same duties at the same salary. Her resignation from ans supervisor 5 authority was formally accepted hb the eecu- tive board 3 weeks later on November 3 in the hoard's meeting held immediately before the regular membership and nomination meeting). Meanwhile, Evel.n McCann had received authorization cards from the Office rEmployees. but is a courtesy to Hands, who had asked her to "hold off," she waited until after the nomination meeting (at which Hands' nomination was unopposed) to ha e the cards signed on November 4. She then had the three cards mailed to the UInion before going on vacation. B. Opposition to U'niont:ati on I. Repeated interrogation Shortly after Evelyn McCann returned from her Noxem- her 5 21 vacation in C'alifornia. Secretari--Treasurer ltands receied the I. non's formal bargaining request. At this time. Hands began demonstrating that he (or Local 164) had had a change of mind about negotiating with the LUnion for a contract coering the three office clerical cm- plo\ ees. Upon seeing the nion's letter. Hands asked EBelsn McCann. "ls this really what you want?" It is undisputed that when she said yes. he responded. "Okay. I hope you art not sorn'." (Emphasis supplied.) The following week. shortly before the December I executive hoard meeting. Hands similarly interrogated all three of the clerical em- plosees together. and referred to reprisals to be taken against them. He called them into his office, picked up the Union's letter from his desk, waved the letter in the air, and asked them, "Are you sure you want to go through with this, are you sure this is what you want, do you want to go through with it?" When all three of the employees answered yes. he stated that they would have "to decertify from this local union" (referring to their losing such Teamsters bene- fits as the Central States pension plan) and stated that Eve- lyn McCann would notice a pay cut in her next week's paycheck (asserting that "The reason why it wasn't done in the November executive hoard meeting is because there wasn't time but it will he done now"). Again in this conver- sation he added. ''I hope that ot ire not goring to h vorr . . . that Sou want to go through with this union." I E(mpha- sis supplied.) 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, when interrogating Evelyn McCann individually and the three clerical employees together about their union sympathy, Hands failed to give them any assurances against reprisal, but instead gave them at least implied warnings about being sorry. In the group meeting, he dem- onstrated what he meant about being sorry he referring again to the loss of their Central States pension benefits and by announcing his decision to have the executive board ap- prove a reduction in Evelyn McCann's salary. Particularly in this context, I find that the interrogation of Evelyn McCann individually and the three employees together tended to coerce them in interference with the exercise of their Section 7 rights, in violation of Section 8(a)( I) of the Act. 2. Salary reduction On December 2. Evelyn McCann read the December 1 executive board minutes, which stated that her salary was being cut, effective December 2. to the salary of the other clerical employees. At the time, she was being paid $250 a week after 22 years of service. Employee Lester. with 5-1/2 years of service, was being paid $200 a week: and Mishele McCann. Evelyn's daughter who was hired the preceding January, was being paid $135 a week. Upon reading the minutes. as Evelyn McCann credibly testified, she went into Hands' office and asked what her wages were supposed to be and he replied $190( a week. Thus, despite her much greater seniority and her continuing to perform the same duties. Evelyn McCann's salary was being reduced to $10 below Lester's $200 salary, Hands claimed at the hearing that the reduction to $190 was an error. and the Teamsters Local asserts in its brief that the error was "caused by Evelyn McCann herself." the book- keeper who prepared the paychecks. However, earlier Hands had admitted that it was the executive board which had decided to reduce her salary $60 a week. In his January 20 "Answer to Charge" (G.C. Exh. 10, prepared in Union attorney Williard Rappleye's office). Hands admitted that "On December I, 1977, the executive board reduced her weekly earnings by $60.00 per week," and that on January 5, "it was decided that her wages should have been reduced only $50.00 per week and paying of $10.00 for five weeks was then authorized by the Executive Board" and included in her final paycheck. (This answer shows that the executive board decided, immediately before Hands summarily dis- charged her, that her salary should not have been cut $60 a week, from $250 to $190, but only $50 a week, from $250 to $200-in preparation for discharging her and her daughter. as discussed later.) When Hands was confronted at the hearing with his January 20 answer and asked about the executive board's decision to reduce her salary $60 a week, he claimed that he "assumed" she was then receiving $260 a week and "they dropped it back to $200 which was Marge's salary at the time." This response, though, conflicts with the other part on his January 20 answer which revealed that the executive board did not correct a payroll error, but reversed its decision for a $60 reduction and "decided that her wages should have been reduced only $50." (As a witness, Hands appeared to be fabricating whatever he thought might be plausible, rather than being forthright and candid.) In September, Hands had told the clerical staff that Eve- lyn McCann's higher salary was based on her long years of service; and he had said nothing about cutting her salary when he suggested that she resign as office manager, relin- quishing any supervisory authority. Her duties had re- mained the same and, of course. she continued to have over 16 years greater seniority than Lester. Yet, after repeatedly implying a warning that the employees would be sorry for seeking outside representation. he was having the executive board approve a sharp reduction in her salary, to an amount even below the salary of junior employee Lester. I find that this reduction in her salary first in the amount of $60 a week and later revised to $50 a week was clearly discriminatory and retaliatory, and that ocal 164 violated Section 8 a)( 3) and (I) of the Act by reducing her salary while she was still performing the same duties. (In support of this finding. I note that the Union raised Lester's salary to $250 a week after Lester assumed Evelyn McCann's du- ties following her discharge, even though Lester adamantly refused to accept any supervisory responsibility to hire and fire.) 3. Denial of time off On Monday, December 5. the next workda., Hands again demonstrated what he meant when he repeatedly ex- pressed the hope that the clerical employees would not be sorry for seeking a union contract. Evelyn McCann had a 2 p.m. Tuesday appointment with an attorney outside the office on a personal matter. She asked Ilands on Monday if she could have 4 or 5 hours off the next day., and told him that the appointment was very important and that she would be glad to make up the time. It is undisputed that despite the prior time-off privileges. he replied. "No. I am not letting you. 7Thi.s i he wal' you girls want to hbe( this i the nva' I am3 going to he wit/h vou [empha- sis suppliedl." in an obvious reference to their union ac- tivity. I find that the refusal to permit her to take the time off was clearly an unlawful reprisal. in violation of Section 8(a)(I ) of the Act. 4. Attempts to replace Evelyn McCann Local 164 emphasizes in its brief that the union activities "were clearly led by Evelyn McCann." As stated in the brief, in September when "the three office girls came into Hands' office and said they would like to have a union contract .. . Evelyn McCann led them there . . . she tele- phoned the Office Workers Union in Detroit as she re- ported to Hands] and authorization cards were forwarded to Evelyn McCann .... She held these cards for approxi- mately two months before giving them to the employees to sign." It is clear that Local 164 considered Evelyn McCann to be the moving force behind the efforts to obtain a union contract. In late November and early December, when Local 164 was demonstrating its opposition to the Union (by coer- cively interrogating Evelyn McCann and the two other of- fice clerical employees, repeatedly referring to their being sorry for seeking a union contract, referring again to their losing their pension benefits, and denying Evelyn McCann 706 FRUCK DRIVERS UNION LOCAI. 164 time off because "This is the way ou girls want to he." as found above). the Union was attempting to replace her as office manager, for no apparent reason other than under- cutting the efforts to obtain a union contract. As conceded in the Local 164's brief, she was continuing to perform the duties and functions of office manager. There were only two other employees in the office. and there was no occasion for her to be exercising any supervisory authority to hire or fire. Hands' first approach was taken shortly after he told Evelyn McC('ann that he hoped she would not be sorr. and to "go ahead and write the letter" to the Union. stating that he would meet at ans time. He then asked her if she would "take the po'ition of office manager with the right to hire and fire"-thereby removing herself from the bargaining unit. (This request belies Hands' testimony that he began losing confidence in her in July or August 1977.) When she refused. he began trying to replace her. He asked clerical employee Lester on December 1 if she "would accept the position of office manager with the power to hire and fire." and told her he desired an answer by the time of the execu- tive board meeting that evening. Wanting to remain in the bargaining unit. Lester said that she would. but "without the power to hire and fire." (She asked why he had waited since Evelyn McCann resigned in October until then to ask. but he did not respond.) If Lester had agreed to accept supervisory authority. that would have eliminated her from the bargaining unit, leaving only Evelyn and Mishele McCann: and Evelyn McCann would also have been elimi- nated from the unit if she refused an offer to take Lester's job at Lester's lower salary. It was in this context that Hands obtained the approval of the executive board on De- cember I to reduce Evelyn Mc('ann's salary to $190 a week $10 below Lester's salary- even though Evelyn McCann had much greater seniority than I.ester and was still performing the duties and functions of office manager. Despite the large reduction in her salary, Evelyn McCann did not resign. Hands told clerical employee Lester on December I that she "had until an advertisement was to be placed" to accept the positon of office manager with the power to hire and fire. He next asked her on December 8 if she would accept that position, telling her that he was going to post a notice that the position was "open." She again said she would accept it but without the right to hire and fire, and he pro- ceeded to post the notice of a "Job Opening for office man- ger-with power to hire and fire, bookkeeping, shorthand. machine operator (Titan)" near her desk. Thus. after Lester repeatedly refused to accept supervisory authority and leave the bargaining unit, Hands began advertising the po- sition as being "open." indicating that he planned to hire an outsider and to remove Evelyn McCann from the payroll. Failing to find a new office manager to replace Evelyn McCann, Hands once again asked clerical employee Lester at the end of December if she would accept the position of office manager with the power to hire and fire. and she again refused, stating that she would accept it without that power. The following week, Local 164 summarily dis- charged both Evelyn McCann and her daughter, and Hands thereafter appointed Lester as the new office man- ager, without the power to hire and fire, at Evelyn McCann's previous salary of $250 a week. (At the time. the Union's representative had still not isited Hlands to begin negotiations of an agreement.) C. .4 lleged Di scriinalorv Di hlllrXgc I. Discharged without warning Eveln McCann (the widow of Secretar)-Irecasurer Hands' predecessor) had been employed in local 164's of- fice since August 1955. It is undisputed that during her over 22 ears of service, she regularly worked many hours of unpaid overtime, averaging 45 to 47 hours otf work most of the weeks during that time. As partial compensation for the long workweeks, the local permitted her and other members of the clerical staff to take time off when the work as caught up, and to have certain privileges. such as charging to the local personal long-distance telephone calls when placed at the office. (Ivelsn Mc('ann estimated that her calls amounted to about $20 a year. Hlands. who personall authorized this practice in December 1971 also charged personal calls to the Union. In Januar) 1976h. clerical em- ployee l.ester offered to pas for a telephone call she had placed to California when Hands asked her about it. but as she credibly testified, "He told me it wasn't necessar since I . .. had pwtu in hoursljr which I had nol heen pidtl iemphasis supplied], that as long as he knew who that call was made by. that it was all right." I discredit [lands' denials.) In addition, because of the use of private cars on union business. Local 164 gave Evelyn McCann as well as em- ployee Lester since December 1975) the privilege of filling the tank with gas each week at its expense. F:vel, n Mc('ann used her car for such union business as going to the hank. hospitals. employers (under contract), and funerals. and permitted business agents to use her car when their cars were tied up. As she credibl testified, she was permitted to have an extra tank of gas when she drove her personal car to meetings in Detroit and (apparentl? because of her un- paid overtime). either lands or the Union's president (who did not testify) personalls authorized payment for each ad- ditional car expense such as a minor repair or mounting snow tires) charged to the Union. She had the gasoline charged to the Union until late 1976 or early 1977. when she began paying cash for the gasoline at a self-service sta- tion and being reimbursed. From late 1973 through the summer of 1975 (a considerable time before her daughter. Mishele was hired to work regularly for the Union in Janu- ary 1977). she would often find it more convenient to send Mishele to the service station to get the gasoline in one of her two cars. Darrell Ellick, a business agent and trustee of l.ocal 164, admittedly had observed Mishele McCann charging the gas. but no question was then raised about this practice. In late December. after Hands had failed to find a re- placement for Evelyn McCann, he received the Union's telephone hill and found a charge on it for a call she had placed from California to the office while on vacation in November. (He claimed that he believed this to be a per- sonal call, but in fact. it was a business call involving one of the members' pension.) Meanwhile, trustee Ellick. recalling that he had seen Mishele McCann charging gasoline at the Union's charge-account service station, happened to decide 707 I)(CISIONS OF: NAFIONAI. IABOR RELATIONS BOARI) on Tuesday. January 3, to go by and ask the owner of the service station if both Evelyn and Mishele McCann had signed for the gasoline. (When asked what gave him the idea of checking on this, he answered. "Because for the fact that I had seen Mishele sign gas coupons . . . and I didn't know what she was doing. I couldn't accuse anything until I went out and checked because I couldn't accuse some- body until I went ahead and checked everything out." lie testified he could not remember when he last saw this, and he made no effort to explain why lie waited until January over 2 years after Mishele McCann last charged any gaso- line to the Union.) The station owner remembered Mishele McCann charging gasoline and gave Ellick a written note that both of them charged gas to the Union "with the un- derstanding Evelyn McCann was to straighten up the daughter's gas bills with the l.ocal." (When called as a de- fense witness, station owner Charles Ewers could not re- member having had any conversation with either Evelyn or Mishele McCann concerning that practice. and when shown his handwritten note, Respondent's Exhibit 4. he tes- tified, " guess I more or less figured [emphasis supplied] she was gonna reimburse the [Union] for it." He did not appear to have a good memory.) That same day, Ellick showed Hands Ewers' note. (When repeatedly asked on cross-ex- amination why Ellick had decided on January 3 to talk to Ewers, or what inspired Ellick to get the note from Ewers, Hands was most evasive. He finally claimed. "1 don't think he explained to me, only that he knew that something wrong was going on [although Mishele McCann last charged gasoline in 1975] and he is the trustee of the local union and he wanted me to know that this was happening." I find this response to be another fabrication.) That eve- ning, Hands and Ellick spent about 2 hours checking the 1975 gasoline charges: ound that both Evelyn and Mishele McCann had signed the mother's name: and wrote on the reverse side of Ewers' note three dates in the summer of 1975 when it appeared that Mishele had signed her moth- er's name. Before checking the records that Tuesday evening, Janu- ary 3, Hands had not mentioned anything to Evelyn McCann about the gasoline charges-nor anything about using the office telephones for personal calls since he first authorized the practice in December 1971. On Wednesday. Hands drove Evelyn McCann to a meeting in Detroit and still did not mention anything to her about telephone calls or ask her about Mishele signing her name on gasoline tick- ets. (I discredit Hands' testimony on cross-examination that he had not asked Evelyn McCann at the time of her Thurs- day evening discharge about her California call on the De- cember telephone bill because "That [was] the first opportu- nity that I had.") During the day Thursday, January 5. Hands still did not say anthing to Evelyn McCann about personal telephone calls or about her daughter having signed her name on gasoline tickets over 2 years earlier. The evidence does not reveal what he reported to the executive board that eve- ning. except that the board amended its December decision to reduce Evelyn McCann's salary by $60 a week (to $190 a week-$10 less than the salary of a much less senior em- ployee, as discussed above), deciding that the wage reduc- tion should have been only $50 and that she should be paid the difference. However. because of what happened a few minutes after this executive board meeting, I infter that the board itself authorized the discharge of Evelyn and Mishele McCann. I also infer that Hands and the executive board realized that Evelyn McCann's December salary cut of $60 a week was obviously discriminators. and that the board decided to reduce the amount of the reduction in prepara- tion for discharging her and her daughter. After the executive board meeting. Secretary- reasurer Hands called Evelyn McCann out of the Union's member- ship meeting to discharge her. As stated in lands' JanuarN 20 "Answer to Charge" (.C. Exh. 10, prepared in Union Attorney Rappleye's office), "lDuring this meeting she was requested to come to the office of' Secretary-T'reasurer svo thrt .she could e ilrmed [emphasis supplied] about the termination of her services...." As stated in his pretrial affidavit. "On January 5. '78 I called Evel n McCann out of a membership meeting to in/ormo her [emphasis supplied] of her discharge." (Although the affidavit was written with poor penmanship, Hands signed it in the presence of Attor- ney Rappeye.) In Hands' office, as Evelyn McCann credibly testified. he said that she and Mishele were discharged. She asked, "What fior, what am I fired for'?" He pulled a piece of paper from under his desk blotter and responded. "For theft." She asked what she had stolen and he stated. "Telephone calls." She responded. "That is a little ridiculous isn't it? You were the one that approved that we could make personal calls on the telephone here," and "There was never anything said we couldn't do it." He then said that she had called her brother in California. (This was a reference to an October telephone call which, like her November call from Califor- nia to the office, he had never mentioned before.) She asked why Mishele was fired, and he said. "I have an affidavit [Ewers' note, Resp. Exh. 41 stating that she signed your name to gas bills." She told him that she had authorized Mishele to sign her name. (Hands did not mention any other reason for discharging them. He did ask her why she had made her salary $190 ai week. When she answered. "Because you told me to," he denied having done so.) As she was leaving he said, "I will have to admit that you did a hell of a good job in here." (Before her union activity. he had referred to her as his "Gal Friday.") The next day, when Evelyn and Mishele McCann re- turned to the office to pick up their belongings, Hands said. "Now I don't want to press any charges against you so would you be willing to reimburse the Local Union for the telephone calls." Evelyn McCann answered. "Certainly I will it' that is what you want . . . Provided everybody else has to do the same thing." He asked what she meant and she said, "Everybody else in the office that has made per- sonal calls." (Hands never told Mishele McCann, either verbally or in writing, why he had discharged her. It is undisputed that the Union informed the unemployment commission that it discharged her fobr signing her mother's name to gasoline bills on several occasions in 1975.) Thus Local 164, which regarded Evelyn McCann as the instigator of the Union which it was opposing for its office staff. had been unsuccessful in its efforts to eliminate her from the bargaining union. (She had refused the November offer of supervisory authority: she did not quit in December 708 IRl('K I)RIViRS NION L.()A(41. 164 when her salarN was reduced below that of a much less senior employee: and the Union failed in its etorts to re- place her.) Finally on January 5. the executive bhoard re- duced the amount of the discriminatory reduction of her salary and authorized her and her daughter's discharge. Then without any prior warning. Secretary-Treasurer Hands summarily discharged her and her daughter. pur- portedly because she had charged to the local personal tele- phone calls (which -lands had personally authorized office clericals to make because of their unpaid overtime) andti because her daughter had signed her name to gasoline tick- ets over 2 years earlier (a practice to which the ocal hadt not objected. despite the admitted knowledge of trustee Ellick that the daughter was charging gasoline where the Union had its charge account). 2. Shifting. unfounded, and frivolous defenses At one point in his testimony. Secretary-Treasurer Ifands partially corroborated employee Evelyn McCann's testi- mony about the reasons he gave for discharging her and her daughter on January 5. He testified that he told them he was discharging them "for the use of the long distance call while on vacation, and, secondly, for allowing her daughter to purchase gas and sign her name and the Local paying the bills." However, the local asserted a number of' different defenses. Contrary to his admissions in his January 20 "Answer to Charge" (G.C. Exh. 10) and in his pretrial affidavit that he called Evelyn McCann out of the membership meeting to discharge her, Hands claimed at the hearing, "I thought we could have straightened it out" (by her making restitution to the local) and "I did not have the intention of firing her at that point." but she "smartmouthed at me . . . and said she owned both cars and she had the right to have gas put into both automobiles." He claimed. "I blew my cool" and decided to discharge both of them. In its brief, the local argues that "Had it not been for the argumentative position of Evelyn McCann on January 5 she would still he emplosed by the Local Union.... To argue with the Secretary-Trea- surer over her 'right' to permit her daughter to sign her name to gas tickets because both cars were in her name was something that Hands would not tolerate and that factor tipped the balance in his mind toward discharge." (Empha- sis supplied.) I reject as an afterthought this contention that Evelyn McCann "would still be employed by the Local Union" if she had not been argumentative. As previously indicated, I infer instead that the executive board had al- ready authorized the discharge of both her and her daugh- ter and find, as admitted in his answer and pretrial affidavit. that Hands called her out of the membership meeting to discharge her. Elsewhere in its brief, the Union argues that the dis- charge of Evelyn and Mishele McCann "would not have occurred were it not for the clearly established abuse of union funds on their part," and that Secretary-Treasurer Hands could not permit the "financial irregularities." In support of this contention. the Union argues. first. that while Mishele's signing of her mother's name on three dates (in the summer of 1975) "triggered" the discharge, a subse- quent investigation (Resp. Exh. 16) "showed a much more serious and frequent abuse of the gasoline priilege" that o0er a 3-iear period. "both the mother and the daughter purchased gasoline, as well as other purchases for their cars. and charged these items to the l.ocal Union." 'I'o the con- trary, I find that no abuse was shown. (A tabulation of the charges sho, s that for nearly 2 years beginning in Dlecem- her 1973 excluding vacation or other leave time of 5 weeks beginning July 1, 1974. 4 weeks beginning March 3. 1975. and weeks beginning April 28. 1975 fircther Evelyn or Mishele McC'ann purchased the gasoline charged to the local during 49 of the 75 weeks. During 12 weeks, neither of them charged any gasoline to the Union: and during 14 weeks, both of them did the evidence not showing which tof these 14 double purchases were charged to make up tor weeks when no gasoline was charged and which were made when Evel3n drove her car to Detroit on Union business. On 49 percent of the occasions 38 of the 77 purchases 19 or more gallons were purchased: and the average number of gallons purchased during the entire 75 weeks including the weeks when there were no purchases and when there were two purchases was 18.93 gallons. Over the entire pe- riod. Evelyn McCann purchased the gasoline 39 times and Mishele McCann 38 times, in the total amount of $819.36 for gasoline and $95.59 'or other charges. In view of these figures and the credited testimony that payment for each of the additional charges was specifically authorized. I find no abuse in the gasoline privilege.) Secondly, the Union con- tends that velyn McCann wrote seven unauthorized checks to her daughter in 1974 and 1975 in the total amount of $320 for cleaning the union offices. However it is undisputed that Mishele was called in to do office work when clerical employees were behind with their work or on vacation and that Hnads himself' or the Union's president in his absence determined each time how much to pay her for this temporary relief work. (I discredit Hands' denial of the credited testimony that he instructed Evelvyn McCann to make out the checks in this fashion, charging the work to office-cleaning expense.) I find this defense to be oh,.iously frivolous in view of Hands' signing seven different checks made out in this fashion. after MNishele had perotbrmed the office work. Thirdly. as another 'clearly established abuse of union funds," the Union contends that Evelyn McCann gave herself a $30 weekly salary increase on September 3. 1976, when the executive board had authorized an increase of only $20. I find this defense also to he frivolous. ((on- trary to his denial. she credibly' testified that when she read the September 1976 executive board minutes and told Hands that she was really disappointed with the $20 raise, he told her to go ahead and make hers $30--raising her salary to $240 for the next 12 months. When she raised the point that the executive board had approved only $20, he said to go ahead, "I will take care of it.") The Union's brief appears to imply that one morning a tew days before her discharge. Evelyn McCann notified the Leone Township within the hour that a group of township employees had telephoned the Local seeking representa- tion. However there is no evidence to support such a de- fense, and Hands admittedly did not discharge her over this matter. (She did mention to a close friend, who also lived in that township, that the employees there wanted to he orga- nized, but this conversation occurred that evenine, several 709 I)t0('ISIONS 01f NAIIONAI, LABOR REILATIONS BOARD hours after the supervisor was informed presumably by one of the township employees.) The Union's brief also asserts that Evelyn McCann had not filed a claim with the health and welfare office for money due the local. However, this matter was not litigated after the local's union attorneyv indicated that the evidence was not offered for its truth. At the hearing, the counsel asserted for the first time a further defense that [Evelyn McCann was still a supervisor at the time of her discharge. To the contrary, Hands testi- fied that she was not, because "She had turned in her resig- nation" as office manager before that. In its brief, the Union argues that "whatever union activities have been en- gaged in" by Union's employees, "they were clearly led by Evelyn McCann. a supervisory employee." and "These ac- tivities, on the part of a supervisor, so tainted the alleged union activities, that no violation of law can he found." In so arguing, the Union ignores the fact that the cards were not signed until after her resignation as office manager had been accepted, and she was not discharged until 2 months later, after she refused to accept back any supervisory au- thority. I find this to be another frivolous defense. Finally. ignoring the largely undisputed evidence of its opposition to the Union, the Union denies any animus and argues, "There was no antiunion consideration used by Hands in making the decision nor did the decision to dis- charge McCann come as a result of her union activities." 3. Concluding findings After weighing all of' the evidence, I find that after Local 164 failed in its efforts to undercut its clerical employees' union organizational efforts (by eliminating Evelyn McCann. or both her and Marjorie Lester, from the bar- gaining unit), it began checking secretly to find some pre- text for discharging Evelyn McCann. It seized upon her daughter's practice of charging gasoline purchases in her name over 2 years earlier (although no objection had been previously raised to this practice), and the practice of charg- ing telephone calls (although Secretary-Treasurer Hands had specifically authorized this practice, as partial compen- sation for unpaid overtime). Then on January 5, in prepara- tion for Evelyn McCann's summary discharge along with her daughter, the executive board reduced the amount of the discriminatory reduction of her salary in an effort to conceal the real motivation for discharging them. A few minutes after the executive board meeting, Hands summa- rily discharged them without any prior warning, thereby eliminating from the payroll two of the three employees in the bargaining unit. Thereafter, the Union raised various shifting and unfounded defenses, including several defenses found to be frivolous. Under these circumstances, and based on all of the fore- going credited evidence. I find that the Teamsters Local discharged office clerical employees Evelyn and Mishele McCann because of Evelyn McCann's leading role in seek- ing representation by the Office Employees Union of the Local 164's office clerical employees and because of both of their union activity. I therefore find that the Union discrim- inatorily discharged them to discourage membership in the Union. in violation of Section 8(a)(3) and (1) of the Act. CON(CI.IlSIO)NS ()F .AVW 1. By discharging office clerical employees Evelyn McCann and Mishele McCann on January 5, 1978, because of their support of the Office Employees Union. Local 164 engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and ( I ) and Section 26) and (7) of the Act. 2. By discriminatorily reducing Evelyn McCann's salary on December 2. 1977, Local 164 further violated Section 8(a)(3) and (I) of the Act. 3. By threatening to eliminate the employees' existing pension benefits, by coercively interrogating the employees concerning their union sympathy, and by refusing to permit an employee to take time off as a reprisal for the employees' union activity. Local 164 violated Section 8(a)( I) of the Act. RI/MII)Y Having found that Respondent Local 164 has engaged in certain unfair labor practices. I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily reduced one employ- ee's salary and thereafter discriminatorily discharge her and another employee, I find it necessary to order it to offer them full reinstatement, with backpay for the reduction in salary and for their lost earnings from date of discharge to date of proper offer of reinstatement, less net earnings, in accordance with the formula set forth in /' W. Woolworth C(omlpanv. 90 NLRB 289 (1950). plus interest as computed in Florill Steel Corporation, 231 NLRB 651 (1977). See, generally. lsis Plumbhing Heating Co., 138 NLRB 716 (1962). Inasmuch as Respondent's unlawful conduct goes to the very heart of the Act. I find it necessary to issue a broad order, requiring Respondent to cease and desist from in- fringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, Truck Drivers Union Local 164, Inter- national Brotherhood of Teamsters, Chauffeurs. Ware- housemen and Helpers of America. its officers, agents, and representatives, shall: I. Cease and desist from: (a) Discharging, reducing the employee's salary, or oth- erwise discriminating against any employee for supporting Office and Professional Employees International Union. Local 10, AFL-CIO, Jackson, Mississippi, or any other union. 2 In the event no exceptions are filed as provided b 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. 710 TRUCK DRIVERS UNION lOCAL 164 (bh) Threatening to eliminate pension benefits if employ- ees engage in collective bargaining. (c) Coercively interrogating any employees about union sympathy. (d) Refusing to permit an employee to take time off in reprisal for employees engaging in union activity. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to et: fectuate the policies of the Act: (a) Offer Evelyn McCann and Mishele McCann immedi- ate and full reinstatement to their former jobs, or. if their jobs no longer exist, to substantially equivalent positions. without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay and other benefits in the manner set forth in the remedy section. (b) Preserve and, upon request, make available to the Board or its agents. for examination and copying, all pay- roll records, social security pas ment records, timecards. personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its office and meeting places copies of the attached notice marked "Appendix.' Copies of the notice, on tforms provided by the Regional Director for Region 7. after being duly signed by Respondent's authorized repre- sentative, shall he posted b Respondent immediatelN upon receipt thereof" and be maintained bh it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken bh Respondent to ensure that the notices are not altered. defaiced. or covered by an' other material. (d) Notif', the Regional I)irector. in writing. vkithin 20 days from the date of the Order. what steps Respondent has taken to comply here, ith. In the event that this Order is entrrced h\ . Judgemcnt ot the ln lled States Court of Appeals. the words n the notice reading "Posted h Order ,of the National Labor Relations Board" shall read Posted Pursuant to a Judg- ment of the nited Stales (Court i Appeals Fnlilorcing n Order of the Na- iional l.abor Relations Board" 711