Cousins Associates, Inc

COUSINS ASSOCIATES, INC. 73 Cousins Associates, Inc. and John G. Seymour, and Robert G. Kilpatrick Cousins Associates, Inc. and Carl Genovese. Cases Nos. 2-CA- 6157 and 2-CA-6159. November 12, 1959 DECISION AND ORDER On June 12, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as modified herein.' 1. We find no error in the Trial Examiner's denial of the Respond- ent's motions of May 20 and June 8, 1959, to reopen the record. Re- IL In his Intermediate Report, the Trial Examiner stated that he could not credit the denial by Wilson, secretary-treasurer of Respondent, that he threatened employees with imposition of a requirement to remain on the "island" in bad weather should the Union be successful in its campaign for recognition . The Trial Examiner based his refusal to credit such denial by Wilson on the latter 's admission on the record that some of the "accusations" made against him were true . We do not share the Trial Examiner's belief that such a general admission should negate a specific denial in a given instance. How- ever, even assuming that Wilson never made such a statement , this does not affect our finding of conduct violative of the Act 'on the part of Respondent . Nor is such finding affected by the inaccuracies in the Intermediate Report noted below. At one point in his Intermediate Report, the Trial Examiner stated that the three discharged individuals were "employees of long and satisfactory service." In 'fact, each of the three men had been employed by Respondent only since June 24, 1958, the effective date of the lease of the two service stations by Cities Service to the Respondent. The Trial Examiner further stated , with respect to employee Genovese , that it is un- disputed that he had never before failed to inform his supervisors when he could not come in to work . The record establishes that there is dispute with respect to this point. Secretary-Treasurer Wilson testified that Genovese did not call in one day in August 1958 , when he stayed home from work allegedly to go swimming. In affirming the Trial Examiner's finding that Shop Steward Carangi was discrimina- torily discharged , we do not rely upon his finding that Wilson 's contention of economic necessity is refuted by his earlier testimony that two or three new attendants had been hired shortly after the discharges. Wilson testified that additional employees were hired to replace several who had quit. There is, however, no other evidence in the record establishing the financial necessity for a reduction in force ; and we are satisfied, in any event, upon the entire record , that Carangi was discharged for discriminatory reasons. k125 NLR1 No. 15. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent initially contended that the record should be reopened be- cause it had not been represented at the hearing by counsel. It should be noted, however, that Respondent had due notice of hearing, and was thus afforded an ample opportunity to secure counsel. The com- plaint and notice of hearing issued on January 28, 1959. The hearing was originally scheduled for March 2, 1959, and was subsequently postponed to April 6, 1959. The Respondent's secretary-treasurer,. John E. Wilson, answered the complaint by letter of February 2, 1959. It should also be noted that Wilson, who appeared on behalf of the Respondent at the hearing, and who is not an attorney, was specifically apprised of his right to be represented by counsel but chose to appear personally and conduct the case for Respondent. At no time durin - the hearing did the Respondent request adjournment for the reason that it was unrepresented by counsel. Respondent now also contends that, because it lacked representation by counsel, it did not receive a fair and impartial hearing in that the Trial Examiner failed to fully inquire into the facts by calling and questioning witnesses, failed to prevent the General Counsel from ask- ing leading questions, and failed to direct the attention of Respond- ent's representative, Wilson, to the fact that certain of the General Counsel's evidence was uncontradicted and would remain so unless Wilson called witnesses who could properly refute it-all of which Respondent states to be the duty of the Trial Examiner where a re- spondent lacks counsel. We find no merit in this contention. The record established that the Trial Examiner explained to Wilson the procedure to be utilized at the hearing and detailed the rights of Respondent with respect thereto. Both the Trial Examiner and counsel for the General Counsel offered to answer any questions Wilson might have during the course of the hearing. The Trial: Examiner frequently questioned witnesses in order to become better acquainted with the facts of the case; and, when Wilson was unable to properly phrase questions to meet the General Counsel's objections of leading the witness, the Trial Examiner rephrased such questions in proper form and asked them of the witness on Respondent's behalf. We do not deem it necessary for a Trial Examiner at a hearing to provide all of the legal services that one would expect from his own counsel. In all of these circumstances, especially in view of the fact that no assertion has been made by Respondent that it seeks to intro- duce newly discovered evidence, we do not believe that the Respondent has shown adequate reason for reopening the record. A. M. Andrews Company of Oregon, et al., 11.2 NLRB 626, 627. 2. Respondent contends that the Trial Examiner erred in admitting testimony concerning events which transpired prior to the lease of the two service stations herein by Cities Service to the Respondent. The Trial Examiner stated in his Intermediate Report that he "spe- COUSINS ASSOCIATES, INC. 75 cifically excludes as findings of unfair labor practices any incident of interrogation occurring before the Respondent took over the stations. Such incidents are relevant, however, to the issue of knowledge on the part of supervisors as to union adherence of the employees." We agree. Knowledge gained prior to the June 24, 1958, leasing certainly was not expunged from the minds of these supervisors, who continued at their same jobs upon Respondent's taking over management of the stations. Respondent's supervisors having been in possession of such knowledge after June 24, 1958, Respondent itself, is deemed to have been in possession of such knowledge. Kollers Craft Plastic Products, Inc., 114 NLRB 990. We find that such testimony was admissible for this limited purpose. In addition, Respondent had independent knowledge of the union adherence of the discharged employees as evi- denced by the events occurring subsequent to the leasing. Such knowl- edge was acquired as a result of several instances of interrogation by supervisors and by Wilson, Respondent's secretary-treasurer. 3. It is further contended by Respondent that Station Managers Gregory and Sullivan and Assistant Managers Murphy and Pepper were not supervisory employees. Respondent states that Gregory was not hired until February 1, 1959; that Sullivan was never hired; and that Murphy and Pepper were not hired until September 2-1, 1958,. which was subsequent to the discharges in issue herein. The record establishes, however, that an arrangement existed between Cities Service and the Respondent, whereby Cities Service would maintain these men on its payroll in order that their period of service with that Company would not be interrupted. The purpose of this arrange- ment was to assure these men certain fringe benefits should Respond- ent later desire to dispense with their services, or should the lease to Respondent be terminated. In either such case, these employees would again go to work for Cities Service. In actuality, the Respondent began reimbursing Cities Service for the salaries of each of these em- ployees as soon as its lease became effective. Each of these men was responsible only to Respondent and worked only for Respondent. The payroll arrangement was purely an accommodation to these employees.' The record establishes, in addition, that the managers and assistant managers were in charge of seeing that the two stations were properly run. All of the other employees worked under their direction; the great majority of all orders given originated with the managers or assistant managers; and their positions required them to exercise authority of more than a routine nature. Further, both the managers and assistant managers had the authority to discharge employees.3 2It was decided by Respondent, after September 1, 1958, that the services of Sullivan were not needed. Sullivan then returned to Cities Service's employ elsewhere. 8 Pepper, assistant manager, notified Genovese that he, Pepper , had been the one who had terminated him. Upon learning that Carangi was not returning to college in the 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner correctly found that the managers and assistant managers at Respondent's service stations were supervisors within the meaning of Section 2(11) of the Act. Despite its position that the managers and assistant managers were not supervisors within the meaning of the Act, Respondent contends that the shift managers, who were subordinate to the managers and assistant managers were supervisors. (Two of the discriminatees herein, Seymour and Kilpatrick, were shift managers.) The record shows that 80 percent of the work of shift managers is identical to work done by attendants and includes such tasks as pumping gas, changing oil, and cleaning restrooms. Their duties differ from those of regular attendants in that they also read the meters on the pumps, count and replenish, if necessary, the supply of cans of oil on the service islands, and hold and count the change made available for dealing with customers. They do not give instructions to attendants unless so instructed by the manager or assistant managers, and they have no authority to hire or discharge employees or to recommend such action. Accordingly, we find, in agreement with the Trial Examiner, that the shift managers at the Respondent's service sta- tions are not supervisors within the meaning of the Act. 4. Respondent contends that the complaint herein should be dis- missed because the Board did not follow its own rules and regulations in that no opportunity for settlement was afforded Respondent in accordance with Section 101.7 of the Board's Statement of Procedure and Section 1002(B) of the Administrative Procedure Act. Such contention is without merit. "Nothing in the [Administrative Pro- cedure] Act or in the Board's own Statement of Procedure requires the General Counsel to take the initiative in broaching settlement; he need only be receptive to settlement overtures made by parties re- spondent." Gimbel Brothers, Inc., 100 NLRB 870, 871. Respondent herein made no such overtures of settlement. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Cousins Associates, Inc., New- burgh, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 14-539, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or in any other fall, Murphy, an assistant manager, stated : "Damn it, I thought you were going to save me the trouble of firing you." On another occasion, an assistant manager discharged, on the spot, an employee who had been misbehaving. Although there is, in the record, no instance of a manager's discharging an employee, that the managers possessed such authority may be inferred from the fact that their subordinates, the assistant managers, possessed such authority. COUSINS ASSOCIATES, INC. 77 labor organization of its employees, by discharging employees or otherwise discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees regarding their union activities, af- filiations, or sympathies in a manner constituting interference, re- straint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John G. Seymour, Robert G. Kilpatrick, Oscar F. Carangi, and Carl Genovese immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (c) Post at its Modena and Plattekill service stations the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's representative, be posted by it at each service station immediately after receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in Local 14-539, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any labor organization, by discriminating in respect to the hire, tenure, or other conditions of employment of any employee. WE WILL NOT interrogate our employees concerning their organi- zational activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. WE WILL offer to John G. Seymour, Robert G. Kilpatrick, Oscar F. Carangi, and Carl Genovese immediate reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the dis- crimination against them. CoUSINs AssoCIATEs, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed and served in the above -entitled proceedings , an order consolidating cases, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by an officer of the Respondent Corporation, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, was held in Newburgh, New York, on April 6 and 7, 1959, before the duly designated Trial Examiner. COUSINS ASSOCIATES, INC. 79 At the hearing General Counsel and the Respondent were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. On May 20, 1959, a motion and accompanying affidavit was received from Attor- ney Charles R. Katz,' stating that he had been retained as counsel for the Respondent and requesting that the hearing be reopened. General Counsel opposed the motion. Said motion was denied on May 25, 1959. Accompanying counsel's brief, received on June 8, are certain affidavits in apparent support of what appears to be a renewal of said motion to reopen. The Trial Examiner is not persuaded that the ruling should be reversed. It is reaffirmed. (See A. M. Andrews Company of Oregon, et al., 112 NLRB 626.) Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Cousins Associates, Inc., is a New York corporation, having its principal office at Newburgh, New York. It operates two automobile service stations on the New York State Thruway, known as the Plattekill Service Station and the Modena Service Station, under lease from Cities Service Oil Company, and is engaged at said service stations in the retail sale of gasoline, oil, automobile accessories, and related products and services. During the period from June 24, 1958, when the Respondent began operations as above described, to the date of the issuance of the complaint in March 1959, the Respondent sold products and services valued at more than $500,000. The Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 14-539, Oil, Chemical and Atomic Workers International Union , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The Respondent leased from Cities Service and assumed operation of the two service stations at Modena and Plattekill just a few days before there was to be held, pursuant to a Board hearing, an election among the employees at the two stations, to determine whether or not they desired to have the above-named labor organization represent them in collective bargaining. It appears that this election, in Case No. 2-RC-9424, was canceled because of the change in operating control from Cities Service to Cousins Associates. According to the testimony of J. E. Wilson, secretary-treasurer of the Respondent Corporation and most active in its management, when taking over operation of the two stations on June 24 he "tried to hire everyone that was already employed there." On that date, and upon their release from Cities Service payroll, a number of the employees and Bernard Walsh, an officer of Local 14-539, raised with Wilson the question of recognizing the Union. Wilson agreed to "consider" the matter, but said he wanted to "get his feet on the ground first," according to Walsh's undisputed testimony. With this tentative assurance of later consideration, a number of the employees who had been on Cities Service payroll were placed on the payroll of the Respondent. It is clear from Wilson's own testimony, however, that shortly after taking over operating control of these employees, he had a change of mind on the matter of recognizing the Union. And the testimony of several employees is undisputed, as findings below reveal in more detail, to the effect that Wilson and his supervisory managers and assistant managers began a campaign designed to discourage union activity. Early in September the Respondent dismissed from its service four employees: John G. Seymour, Robert G. Kilpatrick, Oscar F. Carangi, and Carl Genovese. It is General Counsel's claim that these four employees were discharged to discourage union membership and activity, and that such conduct and certain coercive remarks 'Wilson, an officer of the Respondent, appeared at the hearing ; on May 20, 1959, by a motion hereinafter described, Katz informed the Trial Examiner that he had been re- tained as counsel and he thereafter filed a brief for the Respondent. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made by the Respondent's supervisors, interfered with rights guaranteed to employees by the Act. The Respondent, on the other hand, contends that the dismissals were for legal cause, and that it in no way violated the Act. B. Interference, restraint, and coercion Since the motive for the dismissals is the chief issues in this case, it may be well first to consider remarks atributed to Wilson and his supervisors which may throw light upon that motive. It is undisputed that on several occasions during the summer of 1958 Manager Gregory at the Modena station told John Seymour, who was on the union organizing committee of employees, that "unions were no good," and that it was a question as to whether the employees "wanted a union" or "wanted a job." He also told Seymour that he "should try and talk the men out of negotiating for this Union" and that he would have a "hard time finding a job elsewhere" if he should be fired for "negotiating with the Union." That Wilson himself, after persuading the former Cities Service employees to continue operating the two stations for him with the assurance that he would later consider recognizing the Union as their bargaining agent, not only changed his mind but openly tried to dissuade and discourage such activity is made clear by the credible and largely undisputed testimony of several employees besides that of the four whose discharges are in issue. Early in July employees DeLauri and Kilpatrick approached Wilson with a peti- tion signed by 27 of the 31 employees, according to DeLauri's uncontradicted testimony, to discuss the question of recognition which Wilson had deferred on June 24. They handed him the document, and Wilson promptly returned it to them. Among other things he declared that there were "strictly no benefits to be derived from having a union" and warned them that if they insisted upon being so repre- sented "there would be no coffee breaks" and in bad weather the attendants would be required to remain at their stations on the "island," 2 where the gas pumps are located. Finally Wilson told the committee to "give him more time." A week or so later DeLauri, another employee, and the union representative again submitted the petition to Wilson, who again gave it back and asked for "more time." In August Wilson called separately a number of employees from their work and tried to discourage their union adherence. For example, he told DeLauri that after his 18-month lease with Cities Service was up "the boys could have a union if they wanted it" but if they insisted upon a union "he could lease the station out in- definitely" and "this could go on and on from one person to another." Wilson asked employee Harry O'Jea to try to get the union "vote" postponed, and said that if he was "pushed" for such a vote he "would probably have to follow procedures on re-leasing the station back to Cities Service or to another person." He told the same employee that if he did re-lease the stations, the union "insti- gators" would probably find it pretty hard to find a job." Wilson made similar threats to subleasing the stations if the Union came in to employees Joseph O'Jea and M. E. Watters. The foregoing findings make it plain, in view of the Trial Examiner, that by early September Wilson and Gregory had manifested to employees their opposition to dealing with the Union and to rights accorded the employees under the Act. C. The discharges In the light of the circumstances described by employees who were not themselves discharged (and whose testimony in the main not only lacks specific denial but was thus generally characterized by Wilson: "Some of the accusations that have been made are true with a litle change of wording"), attention is now turned to the four discharges in early September. Since all three were summarily dismissed on September 4, 1958, the terminations of Seymour, Kilpatrick, and Carangi will be treated as a group. Both Seymour and Kilpatrick were shift managers 3 at the Modena station, while Carangi was an attendant at the Plattekill station. 2 The Trial Examiner cannot credit Wilson's denial that he threatened to invoke this requirement. He readily admitted , as noted hereinafter, that some of the "accusations" were true. 8 The title "shift manager" was accompanied with no authority to (hire or fire or to exercise other managerial functions qualifying the holder as a supervisor within the mean- ing of the Act. There were four shift managers at each station , they operated under the supervision of two assistant managers and a manager at each station. COUSINS ASSOCIATES, INC. 81 All three were active union leaders, and were known to management as such. Kilpatrick was the union steward at Modena, Carangi at Plattekill. As found above, in July Kilpatrick and another employee twice approached Wilson with the petition seeking recognition. Seymour was on the organizing committee of employees, and was with the union representative on June 24 when the latter first asked Wilson for recognition. In mid-July Wilson asked Seymour if he was "still interested" in the Union. When Seymour replied that he was, Wilson told him he "would be forced to lease the station out the same way that Cities Service Oil Company had done." At the same time Wilson accused him of being a union "instigator" and warned him that if he left for any reason he "would probably have a hard time finding a job elsewhere because of that reason." 4 During a similar interview in August with Kilpatrick, Wilson told this employee that they did not need a union, and that he could be "branded a Union instigator and can be blackballed around here and won't be able to get a job any place." 5 And in August Wilson interrogated Carangi as to whether or not he was a union member and then told him he could "go farther" without the Union than with it. A few days before being discharged, this employee was asked by Assistant Manager Murphy if he was returning to college that fall. When the employee replied that he was not, Murphy replied, "Damn it, I thought you were going to save me the trouble of firing you." s There is no evidence that any of the three employees was accorded advance warn- ing of discharge. Seymour, at home on September 4, was visited by another mem- ber of the Respondent firm, given his paychecks, and told he was fired. When Seymour asked why, he was merely told to see Wilson. September 4 was also Kilpatrick's day off duty, but he reported at the station to pick up his regular paycheck. Upon arrival he was informed by Wilson that he was fired. He asked why. Wilson replied that he was "unqualified." Kilpatrick sought an explanation. Wilson said that he did too much work himself. The em- ployee countered by stating in effect that in order to give service, nine-tenths of the time he had to work along with the attendants because there were not men enough. Wilson handed him his pay in full. At the Plattekill station the same day, Carangi was summoned from his day off by Manager Gregory, and discharged. To Carangi's request for an explanation, the manager said only that he was not "capable" and when the employee protested he added that he was only carrying out orders. In the evening of the same day, after both Seymour and Kilpatrick had been fired at Modena, it is undisputed that together with the union steward, DeLauri, they went to see Gregory, at the other station (and who by then had been made manager of both stations) to seek a reason for their summary dismissals. Gregory gave them no reply for a time, and then said that Seymour did not keep the station clean and that Kilpatrick was always counting his change. No member of management except Wilson testified as to the circumstances of the discharges. Wilson gave the following reasons, in substance, for the dismissals: 1. Carangi was "selected" because "we were going to have to cut down anyway" and "it was to our interest to keep the employees who were looking out for our interest as much as possible." He further said that Carangi's "sales when a contest was on were very good, and for days when there was not a contest on . . . he would appear to be sulking, and we got absolutely no sales from him." 2. Kilpatrick, he said, was "spending all his time-practically all of his time- counting his money." 3. Seymour, according to Wilson, "didn't act as a shift manager . . . when he would cover the midnight shift, he would discourage work." Wilson's vague reasons for the discharges lacks not only the support of any com- pany records but the testimony of any of his managerial staff. His claim of reducing force, in the case of Carangi, is refuted by his own earlier testimony, to the effect that shortly after these discharges he hired two or three new attendants and appointed other shift managers. As to Seymour's "selling record," it is uncontradicted that Gergory had compli- mented him on this, and that earlier he had promised him a promotion to the super- visory position of assistant manager. And it is likewise uncontradicted that Kilpatrick was the top salesman among the shift managers, and had won the August contest for sales of `oil changes, and fan 4 The quotations are from Seymour's undisputed testimony. 6 The quotations are from Kilpatrick's undisputed testimony. 6 Wilson conceded the Respondent's responsibility for conduct of assistant managers and managers. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belts, and stuff like that." His achievement is obviously inconsistent with Wilson's charge that he was always counting his change. The Trial Examiner can discern no merit in the reasons given by Wilson for dismissing these three employees of long and satisfactory service. The real motive is revealed not only in the appraisal of management's earlier and repeated efforts to discourage their union activity and leadership, but in certain unrefuted testimony of employee M. E. Watters and C. Genovese. Watters testified that shortly after the action he asked Gregory why Seymour and Kilpatrick had been let go. The manager added, after saying that they "didn't clean up the station," that "Well, we got them anyway-they got the shop steward and the instigator." According to Genovese, on September 5 Gregory told him, "See, I told you the three agitators would be fired" and named the three. The same day Assistant Manager Pepper told Genovese that the "three agitators, Kilpatrick, Seymour and Carangi were gone and now they were gone the Union was broken. . Undisputed testimony, in the opinion of the Trial Examiner, fully supports the conclusion here made: that Seymour, Kilpatrick, and Carangi were actually dis- missed on September 4 by the Respondent because of their union activity and to discourage union membership. Carl Genovese: Genovese was also one of the attendants taken over by Wilson from the Cities Service payroll. That his supervisors considered him to be active in the Union is established by his uncontradicted testimony. Just before the Re- spondent assumed control of the operations, Manager Gregory transferred him from the Modena to the Plattekill station after accusing him of being "swayed by the agitators" at Modena, and asking him how much he was paying for union dues. One of his assistant managers at Plattekill, after the Respondent took over, was Murphy, who early in July queried the employee about his union sympathies and told him he could "forget about the Union" or he would be "marked as an agitator" and if he lost his job would be "blackballed on any jobs in the Newburgh area." When Genovese protested that they "had a majority of the men signed up for the Union," Murphy advised him, "Just forget about it. It is not going to come in." Several times during the summer Pepper, also an assistant manager, warned Genovese: "I hope you forget about" the Union, "and if you don't you won't be here very long." The last day Genovese worked was September 7. According to the work schedule, posted in advance at the station, he was due to have September 9 and 10 off. On September 8, a day when he was scheduled to work, according to his undisputed testimony, he had to remain at home because his wife was injured in an oven explosion. He tried twice from a grocery store to telephone the station concerning. his absence, but each time received no answer. That evening he was visited at his home by fellow employees DeLauri and Harry O'Jea, who informed him that he had been terminated that day-a notice to that effect having been written on the posted schedule. Since he had not been due to report anyway on September 9 and 10,. it was not until Thursday morning, September 11, that he took his uniforms back to the station, customary when an employee is terminated. He asked Pepper if it was he who terminated him, and the assistant manager said that it was, and that he had done so because Genovese had not called in to account for his absence on the 8th. He declined to accept the employee's protest that he had tried, unsuccess- fully, to reach someone at the station by telephone. There is no contradiction in the record of Genovese's testimony upon which the foregoing findings are based. Wilson's claim, as a witness, that Genovese "fired himself" by not reporting for work on September 8 and not notifying management, fails to withstand the scrutiny of reason in the light of practice. It is undisputed that Genovese had never before failed to inform his superiors when he could not come in to work, and it is likewise uncontradicted that no disciplinary measures had been taken against another employee who in August had neither reported for work nor called in. The Trial Examiner is convinced and finds that the severity of the Respondent's action, its refusal to accept or at least to investigate the reasonable explanation offered by the employee, and the fact that it was taken publicly on September 8, even before the employee had had an opportunity to proffer any explanation, plainly exceeded the normal and reasonable conduct on the part of an employer. It is clear, and is concluded and found, that the reason advanced for his dismissal by the: Respondent was but a pretext and that the real reason lay elsewhere. In view of the several incidents of warnings and coercive interrogations of the employee by his supervisors, the Trial Examiner concludes and finds that the real motive for the Respondent's action in dismissing the employee was to discourage. union membership and activity. COUSINS ASSOCIATES, INC. 83 D. Conclusions in general In summary, the Trial Examiner concludes and finds that the Respondent, by its discriminatory discharges of Seymour, Kilpatrick, Carangi, and Genovese, for the purpose of discouraging union membership and activity, and by the coercive interro- gations 7 and threats of economic reprisals uttered by Wilson, Gregory, Murphy, and Pepper, described above, interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation 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 the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer immediate and full reinstate- ment to employees Seymour, Kilpatrick, Carangi, and Genovese, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimina- tion to the date of the offer of reinstatement, less his net earnings during such period, in accordance with the Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. In the opinion of the Trial Examiner, the above-described unfair labor practices indicate an opposition on the part of the Respondent to the purposes of the Act generally. Therefore, in order to make effective the interdependent guarantees in Section 7 of the Act, thereby minimizing industrial strife which burdens and ob- structs commerce, and thus effectuate the policies of the Act, it will be recom- mended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 14-539, Oil, Chemical and Atomic Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminatorily discharging Seymour, Kilpatrick, Carangi, and Genovese to discourage membership and activity in the above-named labor organization, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 4 The "coercive interrogations" include, in the opinion of the Trial Examiner, (1) Wilson's asking Seymour if he was "still interested" in the Union, in a context of warning him that he would have a hard time getting a job elsewhere because he was an "instigator" ; (2) Wilson's similar interrogation of Carangi followed by his statement that the employee could "go places further without a Union" ; and (3) Murphy's querying of Genovese as to his union sympathies in a context of warning him that he would be "marked as an agi- tator" and "blackballed" in the Newburgh area. The Trial Examiner specifically exclude& as findings of unfair labor practices any incident of interrogation occurring before the Respondent took over the stations. Such incidents are relevant, however, to the issue of knowledge on the part of supervisors as to union adherence of the employee.