Trettenero Sand & Gravel Co.

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enter any company area without establishing positive identification at the perimeter gate. Had the undersigned failed to return to the guard post , it would have been impossible for Posner to halt or identify the car or the occupant. Posner stated that all cars entering through his post must have a special DACO decal, and that his post orders require positive identification of employees by badge and identification card sight check. Posner was advised that his disregard for his post orders would be reported to the Chief of Plant Protection. This report is submitted for your information and any action deemed necessary. JCI: mj [s] J. C. Ingham, J. C. INGHAM, G-20. Donald L. Trettenero and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co. and International Hod Carriers , Building and Common Laborers Union of America, Local No. 1140, AFL-CIO. Case No. 30-CA-745. November 3, 1960 DECISION AND ORDER On March 11, 1960, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a brief in support thereof. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,2 conclusions, and recommendations.' 1 The Respondent contends that the Trial Examiner's refusal to exclude from the hear- ing those employees named in the complaint as alleged discriminatees , was an abuse of his discretion and prejudicial to the Respondent . We find no merit in this contention. These persons are not mere witnesses ; they occupy the position 'of complainants and as such are entitled to be present during the taking of the entire testimony . Happ Brothers Company, Inc., 90 NLRB 1513, at 1526. Jaques Power Saw Company, 85 NLRB 440, at 443. The record does not support the allegation of prejudice. 2 We do not agree that Respondent 's questioning of employees concerning the union activities of other employees constituted illegal surveillance . There is no evidence that the Respondent attempted to infiltrate employee meetings, employed spy techniques, or clandestinely watched employee union activities . The questioning did not attempt to con- vey the impression that the Respondent was aware of the exact nature of individual employees' union efforts. This is not to say that the interrogations were not violations of Section 8(a) (1) ; however , we do not agree they can properly be proscribed under the label of "illegal surveillance." Independent Linen Service Co. of Mississippi , 126 NLRB 463; A & M Karagheusian, Inc., 126 NLRB 104; 'United Fireworks Mfg. Co., Inc., 118 NLRB 883; Lincoln Brassiere Co., Inc., 117 NLRB 1237 ; Aerosonic Instrument Corp., 116 NLRB 1502; Reeves Brothers, Incorporated, 116 NLRB 422; Linn Mills Company, 116 NLRB 96. 8 We cannot agree with our dissenting colleague that jurisdiction should not be asserted in this case on the ground that one of Respondent 's customers arranged for the billing of 129 NLRB No. 66. TRETTENERO SAND & GRAVEL CO. 611 We agree with the Trial Examiner that Respondent discharged em- ployees Hoffman and Worth in violation of Section 8(a) (3) and (1) of the Act. The record shows that union activity by the Respondent's employees commenced on June 16, 1959, when a union business agent approached Hoffman, and Hoffman signed a union authorization card. Subsequently, other employees signed authorization cards. On June 18, the business agent met with the Respondent at which time some general discussion was had concerning wage increases and Sunday work requirements. At this meeting the Respondent learned that Hoffman had joined the Union. Immediately following this meeting the Respondent called a meeting of its employees. After some discus- sion as to what the employees were seeking, the Respondent granted a general pay increase and promised revision of Sunday work schedules. In succeeding days the Respondent interrogated various employees as to their union sympathies and activities and the sympathies and activi- ties of others. During this period, the Respondent learned that a union meeting had been held at Hoffman's home. On June 26, 1959, Hoffman was abruptly discharged ostensibly because of his physical defects. It is the Respondent's contention that Hoffman's physical condition impeded him in his work and constituted a hazard to his fellow em- ployees. In support thereof the Respondent made much of an incident which occurred sometime during 1958 when Hoffman, because of his physical condition, allegedly was unable to aid a fellow pumper who had fallen into a lake. Respondent's explanation is belied by his actions. Hoffman's physical condition was known to the Respondent at the time he was originally hired in 1950 or 1951. Although he was not continuously employed by the Respondent since that date, at no time was he discharged or laid off because of his physical condition. At this date the use of the lake incident or his previously known physi- cal condition as a cause for discharge is implausible. In view of Re- spondent's union animus, its illegal opposition techniques, its knowl- edge of Hoffman's union adherence and support thereof, and the timing of the summary discharge, we find that Respondent's expla- nation is but a pretext for what in fact was an illegal discharge calcu- lated to discourage protected union activity. As such, the discharge constitutes a violation of Section 8(a) (3) and (1) of the Act. As in the case of Hoffman, Worth's union adherence was known to Respondent .4 He too was summarily discharged during the organi- its out-of-State shipments through another company solely to satisfy the credit require- ments of its supplier. To hold , as our dissenting colleague does , that such shipments are "indirect" rather than direct inflow raises to the status of a jurisdictional fact an arrangement for credit that had no bearing at all with respect to the amount of inter- state commerce affected by this Respondent. * On direct examination , Donald Trettenero credibly testified that he knew before Worth's discharge that he had signed a union authorization card. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation campaign, 1 week after Hoffman's release. Respondent stated that Worth was released because he was an unsatisfactory employee and because of the overstaffed condition then prevalent. Both expla- nations lack credulity in view of the evidence in the record. Respond- ent's testimony that Worth was a "pretty good driver," coupled with the three pay raises granted him in his short 41/2 weeks of employment, obviates the first explanation. The "overstaffed" contention is belied by the fact that three new employees were hired during the week prior to Worth's discharge and one or two were hired the day following his discharge. At least three of these new employees performed substan- tially the same work as Worth. As in the case of Hoffman, the timing of Worth's discharge coupled with Respondent's knowledge of his union adherence, when viewed in the light of Respondent's antiunion actions during the 2 weeks preceding the discharge, convince us that his discharge was, in fact, calculated to discourage union membership, and as such was in violation of Section 8(a) (3) and (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Donald L. Tret- tenero and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Hod Carriers, Building and Common Laborers Union of America, Local No. 1140, AFL-CIO, by discharging or refusing to reinstate any of its em- ployees or by discriminating in any manner in regard to their hire or tenure of employment or any term or condition of their employment. (b) Interrogating their employees concerning their membership or other activities in behalf of the Union, or any other labor organiza- tion; interrogating their employees regarding the union membership and activities of their coworkers; granting wage increases to its em- ployees, changing its employees' work schedule, and granting their employees any economic benefit in order to discourage union member- ship; and from engaging in any activities constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist the Union, or any other labor organization, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by TRETTENERO SAND & GRAVEL CO. 613 an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8(a) (3) of the Act, as modified in the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Paul F. Hoffman and Ervin Worth immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Paul F. Hoffman and Ervin Worth for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each a sum of money equal to the amount which each normally would have earned as wages from the date of their re- spective discharges to the date of Respondent's offer of reinstatement, less his net earnings, during said period, in the manner set forth in the section of Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and their right of reinstatement under the terms recommended herein. (d) Post at its establishment at Scottsbluff, Nebraska, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region (Kansas City, Missouri), shall, after being duly signed by Respond- ent's representative, be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are 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 the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. MEMBER RODGERS, dissenting : I_ would not assert jurisdiction in this case. The Respondent is a partnership engaging in the extraction, proc- essing, and sale of sand and gravel at various locations in Nebraska. It is, thus, a nonretail enterprise to which the $50,000 outflow-inflow jurisdictional standards enunciated in Siemens Mailing Service, 122 NLRB 81, apply. The record shows that the Respondent has no direct 5In 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" 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outflow, and that its direct inflow is but from $600 to $700 a year. As to the Respondent's indirect inflow, if any, the record is silent. Therefore, if jurisdiction is to be asserted over the Respondent, it could be done only upon a showing that the Respondent has an in- direct outflow of at least $50,000 within the meaning of Siemons. Siemons defines indirect outflow as "sales of goods or services to users meeting any of the Board's jurisdictional standards, except the indirect outflow or indirect inflow standard." [Emphasis supplied.] In the 12-month period beginning August 1, 1958, the Respondent sold $29,969 worth of sand and gravel to American Marietta Company's Scottsbluff, Nebraska, plant. During this same period, the Respondent sold and delivered $26,272 worth of sand and gravel to Twin City Ready Mix Company at various locations in Nebraska. During 1959, American Marietta purchased in excess of $200,000 worth of materials outside of Nebraska. It is therefore clear that American Marietta is a user meeting the Board's direct inflow standard, and the Respond- ent's sales of $29,969 to the user constitute indirect outflow as to it. However, as these sales alone are insufficient to bring the Respondent within the Board's $50,000 standard, the crucial question is whether Twin City is a user meeting a jurisdictional standard other than "the indirect outflow or indirect inflow standard." The record shows that during 1958, Twin City received $113,360 worth of sack cement which was shipped from the Ideal Cement Com- pany at Fort Collins, Colorado. However, Twin City did not pur- chase that cement directly from Ideal. Instead, because of its inability to satisfy Ideal's requirement of payment within 30 days, Twin City purchased its cement through the Cox Lumber Company, a Nebraska firm, paying Cox a small markup on the cost of the cement. Thus Twin City ordered the cement from Ideal, but shipments were made in the name of Cox to places designated by Twin City. All invoices and bills of lading were sent directly to Cox by Ideal. Cox paid Ideal and, in turn, billed Twin City. Twin City thereafter satisfied its obli- gation to Cox by periodic payments. Under these circumstances, it is clear that Twin City purchased its cement from Cox, and not directly from Ideal, and its inflow, so far as the standards go, must necessarily be classed as "indirect." Since under Siemons, the indirect outflow standard is not satisfied by a sale to a user itself satisfying at most, only an indirect inflow standard, it follows that the Respondent's sales to Twin City may not be added to those made to American Marietta to determine whether Respondent has satisfied Siemons' indirect outflow standard. Moreover, the implied finding of my colleagues that Twin City's cement purchases constitute direct inflow so as to permit the utilization of the Respondent's sales to Twin City is contrary to decisions in prior TRETTENERO SAND & GRAVEL CO. 615 analogous cases.,' Accordingly, I am convinced that Twin City does not meet a Board standard other than indirect inflow and conse- quently the Respondent does not satisfy the indirect outflow standard enunciated in Siemons, supra. I would therefore dismiss the complaint. MEMBERS JENKINS and KIMBALL took no part in the consideration of the above Decision and Order. 9 See Brooks Wood Products, 107 NLRB 237; Lucky Star Roofing Products Corp., 114 NLRB 323; W. A. Swanson Logging Co ., 111 NLRB 495 ; 0. B. Brown Fertilizer Company, 110 NLRB 1912; McDonald, McLaughlin c& Deane, 110 NLRB 1340, Casey Welding Works, 107 NLRB 929. See also C. P. Evans Food Stores, Inc, 108 NLRB 1651 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 our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Hod Carriers, Building and Common Laborers Union of America, Local No. 1140, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all of 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 National Labor Relations Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT interrogate our employees concerning their mem- bership and activities in behalf of the above-named labor organi- zation nor will we interrogate our employees concerning the union and other protected activities of their coworkers in a manner con- stituting interference, restraint, and coercion within the meaning of Section 8(a) (1) of the National Labor Relations Act. WE WILL NOT grant any wage increase to our employees nor change our employees' work schedule nor grant our employees any economic or other benefits in order to discourage membership and activities in behalf of the above-named labor organization, or in any other labor organization. WE WILL offer to Paul F. Hoffman and Ervin Worth immediate and full reinstatement to their former or substantially equivalent 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become or remain members of the above-named Union, or any other labor organization, except to the ex- tent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the amended Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. DONALD L. TRETTENERO AND RUBY TRET- TENERO d/b/a TRETTENERO SAND GRAVEL CO., Employer. Dated---------------- Ry------------------------------------- (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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on July 13, 1959, and on September 24, 1959, respectively, by International Hod Carriers , Building and Common Laborers Union of America , Local No. 1140, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel i and the Board, through the Regional Director for the Seventeenth Region (Kansas City, Missouri ), issued a complaint dated October 16, 1959, against Donald L. Trettenero and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co., herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 135, herein called the Act Copies of the charges and complaint , together with notice of hearing thereon, were duly served upon Respondent and upon the Union. Specifically the complaint alleged that Respondent : ( 1) during June 1959,2 ques- tioned its employees concerning their membership and activities in behalf of the Union; (2) during June, questioned its employees concerning their coworkers' membership and activities in behalf of the Union; (3) during June, promised and granted wage increases and changed its employees ' working schedules for the purpose of discouraging the employees' union activities ; and (4 ) on or about June 16, discharged Paul F . Hoffman and on or about July 3, discharged Ervin Worth, and thereafter refused to reinstate either of them because of their union and other protected activities. On October 26, Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held at Gering , Nebraska, on November 9 and 10, before the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel . Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues , to argue orally on the record at the conclusion of the taking of the i This term specifically includes counsel for the General Counsel appearing at the hearing 2 Unless otherwise noted, all dates hereinafter mentioned refer to 1959. TRETTENERO SAND & GRAVEL CO. 617 evidence, and to file briefs on or before December 4.3 Briefs have been received from the General Counsel and from Respondent 's counsel which have been care- fully considered. After the close of the hearing, the General Counsel and Respond- ent's counsel entered into a written stipulation correcting certain inaccuracies appearing in the stenographic transcript of the hearing . The stipulation has been approved and is hereby received in evidence as Trial Examiner's Exhibit No. I. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS OPERATIONS Respondent, a partnership consisting of Donald L. Trettenero and his mother, Ruby Trettenero, has its principal offices and place of business at Scottsbluff, Nebraska, where it is engaged in the sand and gravel business. During the period from August 1958 through July 1959, Respondent sold sand and gravel to American- Marietta Company at Scottsbluff valued at $29,696.25. During 1959 to date, American-Marietta purchased from outside the State of Nebraska, iron, steel, and cement valued in excess of $200,000. During the period from August 1958 through July 31, 1959, Respondent sold sand and gravel to Twin City Ready Mix Company, at its Mitchell and Scottsbluff, Nebraska, locations valued at $26,272.49. During 1958, Twin City purchased cement shipped to it from the State of Colorado in the amount of $113,360.10. The purchase of said cement was initiated by telephone calls made by Twin City directly to Ideal Company, located at Denver, Colorado, and the cement was then shipped in railroad freight cars from Fort Collins, Colorado, to either Mitchell or Scottsbluff, Nebraska, as Twin City specified. The cement was then unloaded by Twin City and the cars released. Ideal then billed L. W. Cox Lumber Company which, in turn, paid Ideal and then Cox billed Twin City. At no point in these transactions did Cox know in advance of the orders placed by Twin City nor did Cox ever handle the cement purchased by Twin City. It is thus clear that said Twin City's cement purchases constitute direct inflow.4 Upon the above facts, the Trial Examiner finds that during all times material herein Respondent was and now is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction over this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The Union is a labor organization admitting to membership employees of Respondent. HI. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The pertinent facts The record discloses no organizational activities among Respondent 's employees prior to June 16. On that date, Bob Schooler, a union business agent, called at the home of Paul Hoffman, a Respondent employee and whose discharge is discussed below, and obtained his signature to a union membership application card. On the same occasion Schooler requested the names of Respondent 's employees and Hoffman furnished Schooler with names of about 10 or 12 of his coworkers. Thereupon, Schooler started contacting other employees. About 10:30 a.m. on June 18, Schooler called at Respondent 's establishment and informed Donald L . Trettenero,5 a Respondent partner, that he was attempting to organize the employees with the view in mind of obtaining a contract covering, among other things, wages and hours . Schooler also informed Trettenero that he had spoken to Hoffman regarding unionizing the plant. During the course of the conversation Trettenero stated , to quote from the credited testimony of Schooler,6 s At the request of Respondent's counsel the time to file briefs was extended to December 21. d See E. Paturzo, Bro. & Son, Inc., 114 NLRB 1161; Jerry firer ens, Inc , 113 NLRB 875. S Unless otherwise specified, all future use of the name "Trettenero" will refer to Donald Trettenero, rather than to his mother, Rubv Trettenero 0 Trettenero's version of what transpired at this meeting varies to some extent from Schooler's version. After a very careful scrutiny of the entire record, all of which has 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if the employees "didn't like it there, he could [sic] fire them -and they could go somewhere else and work . . . he was going to fight the union. He wasn't against unions, but he wasn't going to be the only one that was organized." Schooler credibly testified further that he informed Trettenero that it was the Union's inten- tion to organize all the sand, gravel, and ready-mix employees in the area; that Trettenero then asked if Schooler wanted to meet with him and "the fellows that joined the union"; that when he replied in the negative and suggested that he be permitted to meet with all employees, Trettenero said, "No, they're going to lunch, and I'm going now"; and that the meeting broke up at 12:05 p.m. About 1 p.m. the same day, June 18, Trettenero had all the employees working that day assembled in the lunchhouse. According to the credible testimony of Ervin Worth, a Respondent employee and whose discharge is discussed below, Trettenero opened the meeting by stating, "What do you guys think about all the union business?"; that Hoffman said, "You think I'm the instigator of this deal, don't you?"; that Trettenero grinned and said, "Well," whereupon Hoffman stated, "Well, I'm not"; 7 and that the following then transpired: he (Trettenero) said . . . the union would put a man out there to run things that went on out there, and then he asked again what we thought about the union, and I guess I spoke up and I said I didn't know anything about it, or I would have told him,8 . he said, well, he didn't want to be the first one to go, if Twin City and Platte Valley, and the rest of them would go, he would go union too, and he talked about that a little while, and he said, "If you guys will forget about this union business . . . we can take care of all of this ourselves anyway; if you guys will forget about this union, I'll give you a raise." So, they talked about more money a little bit, and I finally asked Don (Trettenero) how much of a raise. He said, "Well, I'll give you a nickel now, and a nickel later." Hoffman testified, and the Trial Examiner finds, that Trettenero also stated at this meeting, in addition to the promised wage increase, "there wouldn't be any more Sunday work unless it was absolutely necessary." 9 The promised wage increase was not immediately forthcoming, so the employees continued their union activities. Trettenero's disappointment at the employees' failure to renounce the Union is disclosed by the following incident: Within a few days after June 18, according to the undenied and credited testimony of Hoffman, Trettenero came up to where he and employee Erwin Oberlander were working and asked them, "What the deal was on why we had . backed down on our agreement about the union?"; that Oberlander replied that he did not think he wanted to make a statement; that Worth came along while Trettenero was talking to him and Oberlander; that Oberlander said to him and Worth, "What do you fellows think about it9", to which remark he and Worth said, "We didn't think we ought to make a statement on it until all the men were present"; and that thereupon Trettenero then left. The undenied and credited testimony further reveals that the promised wage increase was put into effect about June 25; that during the week or two immediately following June 18, Trettenero questioned employees Hoffman, Worth. Darrell Bentley, Dale Schumacker, and Robert Nelson about their union activities; that Trettenero asked Schumacker which employees had signed union cards and who had attended a recent union meeting; that Trettenero asked Hoffman and Worth about the union meetings; that Trettenero was informed by employee Wesley Wilson and by Schumacker that the Union had held a meeting at Hoffman's home; that Trettenero asked Schumacker who had signed union cards and was informed that Bentley and another employee had; that Trettenero said to several employees that even though Schooler had advised him that he could not fire any employees for been carefully read, and parts of which have been reread and rechecked several times, and being mindful of the parties' contentions with respect to the credibility problem here involved, the Trial Examiner finds that Schooler's version of what took place at the June 16 meeting with Trettenero to be substantially in accord with the facts. This find- ing is supported by the fact that Schooler particularly impressed the Trial Examiner as being one who is careful with the truth and meticulous in not enlarging his testimony beyond his memory of what occurred On the other hand, Trettenero gave the Trial Examiner the impression that he was studiously attempting to conform his testimony to what he considered to be the best interest of Respondent. 7 For some years Trettenero was aware that Hoffman had a withdrawal card from a Teamsters local s Worth did not sign a union membership application card until June 24 9 Sunday work, in fact, was eliminated sometime thereafter. TRETTENERO SAND & GRAVEL CO. 619 union activities, "I can fire any man I want to at any time"; and that Trettenero said to some employees that he had heard that Schooler was looking for him and if any union man ever came to the Respondent's plant he was going to "knock hell out of him" and it didn't make any difference to him whether or not he would be jailed for doing so. 2. Concluding findings The evidence summarized above abundantly supports the allegations of the com- plaint that Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. As soon as Trettenero learned from Union Representative Schooler that his employees were engaging in union activities he assembled the employees and offered them a wage increase conditioned on their abandoning their union activities. On the same occasion, Trettenero informed the employees that all Sunday work would be eliminated " unless it was absolutely necessary" to work on Sunday. In addition, Trettenero queried many employees aboutt heir own and about other employees' activities and sympathies for the Union. He also queried some employees about the union meetings and who attended them. These interrogations, when consideration is given to the setting in which they were made, to whom they were made, the related events, and to the entire background of Respondent's unconcealed union hostility, leads to the inescapable conclusion that Trettenero's interrogations were part and parcel of a general coercive pattern de- signed to destroy the employees' freedom of choice of action. Furthermore, Trettenero, by questioning some employees regarding other employees' union activi- ties and sympathies, engaged in a form of surveillance regarding those employees' organizational activities and thus his action was no less coercive in its nature than direct questioning of the employees, themselves, concerning their own union activi- ties and sympathies. Such conduct of employers has been repeatedly held to be in contravention of the Act.ie Trettenero's conduct was nonetheless violative of the Act, even though there is no showing that the employees about whom he queried others were cognizant of his conduct. For, as the Fourth Circuit said, "Any real surveillance by the employer over the union activities of employees, whether frankly open or carefully concealed, falls under the prohibition of the Act." 11 Moreover, the Trial Examiner is convinced, and finds, that Trettenero's June 18 announcement of a wage increase, and its subsequent granting, was adroitly and stra- tegically timed to impress upon the employees that continued union adherence was a fruitless gesture, would bring them naught, and they could rely upon their employers' unilateral generosity to attain their needs. By such announcement and the subsequent granting of the wage increase Respondent further violated Section 8(a)(1) of the Act.12 B. The discriminatory discharges 1. The pertinent facts Hoffman was first employed by Respondent in 1950 or 1951, and worked as a "gravel pumper and truckdriver, everything in general" for approximately 11h years. He then was laid off because Respondent was overstaffed. Hoffman was rehired in 1956 or 1957. After working as a gravel pumper and truckdriver on the night shift for about a year, he quit because his doctor advised against his working on the night shift. In April or May 1958, he was rehired and continued to work, among other jobs, as a pumper and truckdriver. He was discharged on June 26, 1959. Tret- tenero told Hoffman, when he discharged him, "I've got to lay you off on account of an insurance risk." 13 Respondent contended at the hearing and in its brief that Hoffman was discharged, not because he was a union member, but for various and sundry reasons. One of the "See N.L.R.B v. Fruehauf Trailer Co., 301 U.S. 49; N.L R B. v. Laister-Kaufmann Aircraft Corporation, 144 F. 2d 9 (C A. 8) ; Montgomery Ward & Co v. N L R B, 115 F 2d 700 (C A 8) ; N.L R.B. v. Vermont American Furniture Corporation, 182 F 2d 842 (C.A 2) ; N.L R.B. v. Collins & Aikman Corp, 146 F. 2d 454 (C.A. 4) : N L R B v. Fairmount Creamery Co , 143 F. 2d 668 (C A 10) ; N L R.B v Pennsylvania Greyhound Lines Inv, 303 US 261; N L R B. v Friedman-Harry Marks Clothing Co., 301 U S 58 'IN L R.B. v. Collins & Aikman Corp, 146 F 2d 454, 455 In accord, N.L.R B v Grower-Shipper Vegetable Assn, 122 F. 2d 368 (C.A 9) ; N L R B v Clark Bros Com- pany, Inc., 163 F 2d 373 (CA 2) v Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.) ; N. L. R. B. v. Wytheville Knitting Mills, 175 Jr. 2d 238 (CA. 3) ; May Department Stores v. N.L.R.B., 326 U S 376 13 A day or two after Hoffman's discharge, Trettenero told some employees that Hoffman was discharged because he was an "insurance risk." 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons assigned was Hoffman's physical defect. It seems that as a result of back injury suffered in 1938 or 1940, Hoffman developed shortly thereafter arthritis of the spine; that since receiving said injury, he has been unable to stand erect or completely straighten up; that he cannot completely bend to the right or to the left; that he has difficulty in turning his head from right to left, and vice versa; and that he has to rely upon rearview mirrors to back up a truck. Another reason assigned for Hoffman's discharge was that, because of his physical defect, Hoffman was not able to give Oberlander, when he fell into the lake in 1958 where he and Hoffman were working, any material aid to get out of the water. A further reason assigned was Hoffman's refusal, in April 1959, to transfer to a job Respondent was performing at Ogallala, Nebraska, some 120 miles distant from Scottsbluff where Hoffman then lived and worked. Worth was first hired about June 1, 1959, and was laid off on July 3. He was originally hired as a driver of a large truck but, at his request, was switched to a small truck. At the time of the job transfer, Worth told Trettenero that because of a leg injury the driving of a large truck caused him pain and that if Trettenero could not or would not transfer him to a small truck he would quit. Worth signed a union card on June 24, and his union adherence and sympathies were known to Trettenero prior to his discharge. The Respondent contended at the hearing, and in its brief, that Worth was discharged, not because of his union affiliation, but because Worth was an unsatis- factory employee. At the time of his layoff, Trettenero told Worth, according to the latter's credited testimony, "'Erv, I'm going to have to let you go. The boys are in from Ogallala and we're going to have to keep them busy.' And I said, `Okay, suit yourself' and took my check and left." 14 Among the numerous reasons assigned by Respondent for Worth's layoff, and his subsequent discharge, Respondent contended that when the Ogallala job was finished and some of the men working on that job returned to Scottsbluff, it had too many employees and Worth was selected for layoff. The Trial Examiner is convinced, and finds, that the "overstaffed" defense, like the other assigned reasons for Worth's discharge, does not stand up under scrutiny and is but a pretext to con- ceal the real reason therefor; viz, his union affiliation and sympathy. This finding is buttressed by the following, among others, (1) Trettenero testified that Worth was a "pretty good driver"; (2) Respondent hired one or two additional employees on July 4 and during the week previous thereto hired three new employees; and (3) Worth received three wage increases during his short tenure of employment with Respondent. 2. Concluding findings In view of the inadequacy and inconsistencies of Respondent's explanations for Hoffman's and Worth's discharges, coupled with Respondent's unconcealed union hostility, a finding is clearly warranted that Hoffman and Worth were terminated because of their union activities and sympathies and because they had engaged in protected concerted activities with their fellow workers.15 In N.L.R.B. v. May ,Department Stores Company, 154 F. 2d 533 (C.A. 8), the court said at page 538, regarding a situation similar to the one here presented, that there is a "broad scope of interference open . . . on questions of motive and discrimination, where the evidence indicates a desire to thwart or nullify unionization effort, either generally or to a particular employee-organization." And where, as here, the employer has shown strong opposition to its employees' unionization "a very convincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliations." 16 Furthermore, the shifting and unsupported grounds assigned by Respondent for terminating Hoffman and Worth are further persuasive indications that antiunion reasons, rather than the reasons advanced by Respondent accounted for the action taken against Worth and Hoffman.17 14Trettenero testified that he only intended to 1ev off Worth "for a while" but when Worth said at the time he was informed of his layoff, "Okay, if that's the way you feel about it," he decided not to rehire Worth is Of course, disbelief of the reasons advanced by Respondent does not itself make out a violation. The burden is on the General Counsel to establish discriminatory motive, not on Respondent to disprove it But here, the General Counsel has more than amply met that burden. 19 Dannen Grain and Milling Company v N L R B , 130 F 2d 321, 328 (C A 8) 17 The courts have frequently recognized that shifting explanations by an employer for the discharge of an employee may warrant an inference that the true reason was the employer's hostility to the union. See N L R.B. v. International Furniture Company, 199 TRETTENERO SAND & GRAVEL CO. 621 Moreover, the reason given Hoffman for his discharge was apparently abandoned because no evidence was introduced by Respondent in support thereof. Regarding a case similar to the one here, the Ninth Circuit said, "The failure to give a reason, or the giving of evasive, inconsistent or contradictory reasons by management for the discharge, properly, may be considered by the Board . . . in determining the real motive which activated the discharges." 18 The Trial Examiner is not unmindful of the fact, as the Fifth Circuit pointed out in N.L.R.B. v. T. A. McGahey, Sr. et al., d/h/a Columbus Marble Works, 233 F 2d 406, "Management can discharge for good cause or bad cause, or no cause at all" pro- vided the discharge was not motivated by any purpose proscribed by the Act. But the court, however, pointed out that where the evidence reveals, as it does here, that the real and dominant purpose for the discharge was discriminatory then a finding of a violation of Section 8(a)(3) of the Act is clearly warranted. Upon the entire record in the case, the Trial Examiner finds that Respondent dis- criminatorily discharged Hoffman and Worth in violation of Section 8(a)(3) of the Act, thereby discouraging membership in the Union, thereby interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to constitute unfair labor practices, 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 violative of Section 8 (a) (1) and (3) of the Act, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment, and the terms and conditions of employment, of Paul F. Hoffman and Ervin Worth, the Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. The Trial Examiner will also recommend that the Respondent make Hoffman and Worth whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during that period. Loss of pay shall be computed and paid in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure the employees their full rights guaranteed them by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their rights to self-organization. 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. International Hod Carriers, Building and Common Laborers Union of America, Local No. 1140, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. F. 2d 648 (CA 5) ; N L R.B. v Crystal Spring Fxnishmg Company, 116 F. 2d 669 (C A 1) ; N L R.B. v. Yale & Towne Mfg. Co., 114 F. 2d 376 (C A. 2) : N L.R B v Condenser Corporation of America, 128 F 2d 67 (C.A. 3) ; N L R.B. v. Eclipse Moulded Products Company, 12G F. 2d 576 (C.A. 7). And this is so even where the employer had "plausible grounds" for the discharge. United Biscuit Company of America v. N L R B , 128 F 2d 771 (C A 7) ie See also N.L.R B. v. Thomas Dant, et at., d/b/a Dent & Russell, Ltd, 207 F. 2d 165 (C.A. 9) ; N.L R B. v. Howell Chevrolet Company, 204 F. 2d 79 (C.A. 9), affil. 346 U.S. 482 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Paul F. Hoffman and Ervin Worth, thereby discouraging membership in the Union , Respond- ent has 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 its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By interrogating its employees regarding their union activities and sympathies and regarding the union activities and sympathies of other employees , by granting a wage increase, and changing the employees' work schedule in order to defeat the employees' organization drive, thereby interfering with, restraining, and coercing said employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] St. Louis Independent Packing Company, a Division of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Local 20, National Brotherhood of Packinghouse Workers and National Brother- hood of Packinghouse Workers, Parties to the Contract. Case No. 14-CA-2238. November 3, 1960 DECISION AND ORDER On June 13, 1960, Trial Examiner Arnold Ordman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent, the Charging Party, and National Brotherhood of Packinghouse Work- ers, and its Local 20, filed exceptions to the Intermediate Report and all of these parties filed supporting briefs. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner 1 except as noted below 2 1 The Board recently considered substantially the same issues involving the parties at another plant of the Respondent, finding that Respondent violated Section 8 ( a) (2) and (1) by conduct similar to that here involved . Swift and Company, 128 NLRB 732 2 We do not adopt the Trial Examiner 's characterization of the letters written by the Respondent as illegal . We nevertheless agree with the Trial Examiner that the letters are material in evaluating Respondent 's conduct. 129 NLRB No. 71.