Interurban Gas Corp.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Dominguez J. Keim J. Mumford 0. Schaefer R. Dowis W. Kennicutt M. Muro B. Schieler A. Downey J. King R. Nichols J. Scholes R. Dunbar 0. Kreutzer S. Niemiec M. Schraeder F. Dyer H. Lewis R. Nugent F. Senter D. Easum A. Loera J. Olson R. Serren R. Faith R. Lugar R. Ostrom F. Slocum D. Farewell D. Lynch A. Pancic D. Stewart J. Farrace R. Magness A. Parker J. Stipec E. Gardner J. Martin J. Phillips W. Tarr G. Gettle N. Martinich R. Phillips D. Thiebaud G. Hall S. Matlack A. Podrasky L. Thompson L. Hamilton E. Mayberry E. Polley M. Thorsen F. Hancock L. McCrea E. Prester M. Tullock R. Harding J. McGrath E. Prouty E. Ullinger 1. Hernandez E. McGuire N. Raney G. Vandiver L. Higginson R. McIntyre L. Ratcliffe C. Vinski M. Hillegass G. McKay R. Recob J. Watford W. Hinton J. McNamara M. Reynolds E. Wesling A. Hoffman R. McNamara J. Reyon H. Wheaton 0. Holte A. Millar S. Riccio D. Wooden P. Holte A. Mitchell M. Richards E. Wooden J. Jensen J. Mitchell P. Risser G. Wright J. Johnson J. Morgan L. Robbins D. Juneman M. Muella J. Sawaya Interurban Gas Corporation and Donald Gillingham. Case No. 7-CA-3202. January 29, 1962 DECISION AND ORDER On November 7, 1961, Trial Examiner Ramey Donovan issued his Intermediate Report herein, finding that the Respondent had engaged in and was engaging in certain unfair labor practices violative of Sec- tion 8(a) (3) and (1) of the Act and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommendations of the Trial Examiner with the modification that provision 2(d) read: "Notify the Regional Director for the Seventh Region, in writing, within 10 days from the 135 NLRB No. 67. INTERURBAN GAS CORPORATION 605 date of this Order, what steps the Respondent has taken to comply herewith." I 'In the notice attached to the Intermediate Report marked "Appendix," (1) the words "Decision and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner." In the event that this Order be 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" ; and (2) the following sentence is hereby inserted after the sentence beginning "This notice must remain posted . . ', which appears at the foot of the page: "Em- ployees may communicate directly with the Board's Regional Office (232 W. Grand River, Detroit, Michigan; telephone number, 962-3830) if they have any question concerning this notice or compliance with its provisions." INTERMEDIATE REPORT This proceeding was held before Ramey Donovan, the duly designated Trial Examiner, at Detroit, Michigan, on September 12, 1961. The sole violation of law alleged in the complaint is the discharge of employee Donald Gillingham on March 14, 1961, for alleged union or concerted activities. Respondent in its answer denied that Gillingham was discharged for the reasons alleged by the General Counsel. All parties were represented by counsel and par- ticipated fully in the hearing. Briefs were filed by the respective counsel and have been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FACTUAL FINDINGS AND CONCLUSIONS OF LAW 1. THE BUSINESS OF RESPONDENT Interurban Gas Corporation, herein called Respondent or the Company, is a Michigan corporation with its principal office and place of business in Trenton, Michigan, where it is engaged in the sale and distribution of propane. During the fiscal year ending August 31, 1960, a representative period, Respondent sold and distributed from its Trenton, Michigan, plant products valued in excess of $100,000 of which products valued in excess of $50,000 were furnished to, among others, Canada Dry Company, Detroit Edison Company, Mobil Oil Company, The Kroger Company, Goebel Brewing Company, and Toledo & Ironton Railroad, each of which enterprises annually purchases and receives deliveries of goods in the amount of $50,000 or more at its place of business in Michigan, which goods are shipped to it directly from points outside Michigan. In fact and in law Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED In fact and in law International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Donald Gillingham commenced work for Respondent in October 1959 as a driver- salesman. Briefly stated, a driver-salesman of Respondent drove a truck bearing cylinders of propane gas to the homes or trailer homes of customers and sold the product to the customers. Donald Gillingham had received one automatic wage increase and two merit increases prior to his discharge on March 14, 1961. Other employees of the Company at the Detroit installation involved herein are Hodge and William Gillingham, brother of Donald, who also were driver-salesmen. Ericks was a driver-salesman who ran what was described in the record as the bulk truck. Janisse had been a driver-salesman prior to Donald Gillingham's employment but performed service work thereafter. Sloan was a dockhand at the company premises and Lock- land was the garage mechanic. There was an office clerical employee, Charmagne Murphy, and two supervisory employees, Glenn Milstead, the general manager and highest ranking supervisor, and Ralph Wyatt, the service manager, also a supervisor. In the early part of 1961 there was considerable employee dissatisfaction regarding certain changes that the Company had made in the employees' insurance coverage, the supplying and cleaning of work uniforms, and some requirements affecting the 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of physical work to be performed by the driver-salesmen in filling cylinders and so forth. Wyatt became concerned about the attitude of the employees and what he con- sidered to be lack of employee cooperation in carrying out their duties. Around the middle of February 1961 Wyatt held a meeting of Respondent's employees. Wyatt testified that he had heard that the men blamed him for the changes in the insurance and the work uniform arrangements . According to Wyatt, he told the men ". . . we have no union here . . ." and when Donald Gillingham said, "Well, who can we talk to," Wyatt replied, "You can talk to me" and he (Wyatt) would do what he could to resolve any grievances. During the meeting Donald Gillingham asked Wyatt if the Company was antiunion and Wyatt said, "As far as I know they're not. They own other companies which I understand most of them are union." In this case, which is on the whole characterized by extremely sharp divergence in testimony between the General Counsel's witnesses and those of Respondent, there is substantial agreement regarding what transpired at the above-described February meeting. Donald Gillingham in his initial testimony, which preceded that of Wyatt and any testimony regarding the February meeting, stated, on direct examination by the General Counsel, that Wyatt, in response to Gillingham's inquiry at the meeting, said that the Company was not antiunion and had a union in an Illinois plant. As I view the entire record, I regard Gillingham's forthright acknowledgement that Wyatt did not express hostility toward unionism as one indication that Gilling- ham was a basically honest witness. A witness attempting to fabricate from the whole cloth a picture of an employer discharging an employee for union activity and a witness who was giving false testimony regarding various occurrences, hereinafter discussed, would not hesitate, I believe, to attribute to a supervisor such as Wyatt, expressions of hostility toward the idea of a union. In fact, expressions of antiunion sentiment preceding a discharge are common hallmarks in Section 8(a) (3) cases. The conflict in testimony between the General Counsel's witnesses and those of Re- spondent on crucial matters is so great, as we shall see, that the most careful appraisal of the witnesses is required. In considering Donald Gillingham and the witnesses who generally supported him it was apparent that Gillingham was either a truthful witness or, not only an untruthful witness but an ingenious one, who being about to be dis- charged for unaccounted shortages in the Company's product, forthwith and skillfully fabricated a union angle to his story and suborned untruthful testimony from other witnesses who supported his contentions. Although, from experience, I do not under- estimate the capacity of human beings for fabrication when something like a job is at stake, I believe from my observation at the hearing and from the record that Donald Gillingham was generally honest in his testimony and that he was not what may be termed a sophisticated "unioneer." After testifying on direct examination, as described above, regarding Wyatt's remarks, Gillingham did not attempt to dilute his testimony when cross-examined by Respondent's counsel on the point, even though it must have been apparent from the nature of the questions that Respondent was desirous of establishing beyond any doubt that Wyatt had not expressed hostility toward unions. Thus, Q. During the time that you were employed by the Corporation did any- body tell you that you coudn't belong to a Union? A. No. In fact that was brought up at the Factory meeting that they weren't anti-union. Q. Did anybody ever tell you that you should not join a Union? A. If they did I wouldn't have tried to join the Union. The last-mentioned credited answer of Gillingham impressed me, in this day and age, as the sentiments of a relatively disingenous employee. This is not the thinking of a clever manipulator on the verge of being justly discharged who drags in unionism as a deus ex machina to save himself. Coming now to Wyatt's credited testimony as to what he said at the February meeting certain observations are in order. As far as the record shows there was no union talk or union organizing going on at the time Wyatt called the meeting. It was therefore not a meeting called in the face of union activity. Gillingham's question as to whether the Company was antiunion came from a clear sky. I believe that Wyatt's answer was honest enough. He simply said that as far as he knew the Company was not antiunion, evidently basing his view on the fact that he understood that some of the other plants were organized. In short, it appears that, the unionization ques- tion having never come up at the Detroit plant, Wyatt had never had occasion to INTERURBAN GAS CORPORATION 607 either raise the question with his superiors or to receive guidance thereon.' There is no evidence that Wyatt had consulted General Manager Milstead on the question before the February meeting and it is unlikely that he did, there being no indication that unionization was even suspected, since discernible or actual union sentiment among the employees apparently did not exist. In the particular circumstance the statement simply shows that Wyatt said that to his knowledge the Company was not antiunion. Perhaps Milstead entertained the same sentiments but we do not know one way or the other. It is helpful to Respondent in that the statement was made publicly and that there is no independent evidence in the case of company opposition to union activity prior to Gillingham's discharge. I have given this evidence full consideration. In his testimony Wyatt described Donald Gillingham as "the chief spokesman" at the February meeting. He also stated that Gillingham was "creating dissension." When asked to explain what dissension Gillingham was causing, Wyatt referred to the February meeting which Wyatt said was supposed to be of "a friendly nature." The witness went on to say that two employees (apparently not Gillingham) got into an argument at the meeting; Wyatt then gave his account, previously described, of how Gillingham after Wyatt's statement that "we have no union here" asked "Well, who can we talk to" and asked if the Company was antiumon. Wyatt also testified that one of the reasons why he had recommended Gillingham's subsequent discharge was because he was a "troublemaker." The next mention of the subject of unions was around the end of February 1961. According to Gillingham's uncontroverted testimony, present in a group in the com- pany office around quitting time were Donald Gillingham, Ericks, Wyatt, and the secretary, Murphy. Gillingham said something to Ericks about a union and Ericks said he would join a union if it was other than the Teamsters The foregoing incident is indicative that Gillingham, who was the cause of "dis- sension" in Wyatt's eyes, and who had asked about the company attitude toward unions at the February meeting, was now pursuing, albeit rather vaguely, the subject of having a union. At least the matter had reached a point where, in response to Gillingham, Ericks had professed interest in some union other than the Teamsters. Interestingly enough, Gillingham had broached the subject openly, in the company office in Wyatt's presence, apparently in reliance on what Wyatt had previously said about the Company, as far as he knew, not being antiunion. The union subject by now, however, while still ill defined and inchoate, was beginning to loom as more than a matter of academic interest or more than the simple inquiry of the February meeting. Within the next 2 weeks, Donald Gillingham, his brother, William and Hodge, among themselves, discussed further the idea of a union. Hodge suggested that Donald call the Teamsters Union and find out what were the benefits of membership. Donald did so on March 13 and received information about the union pay scale, insurance benefits, and retiremen plan. Donald was favorably impressed by what he had learned and shared the information with his brother and Hodge who also were receptive. Donald told Hodge the location of the union office and since Hodge passed there on his route he agreed to pick up some union authorization cards on the follow- ing day, March 14. When Donald Gillingham returned to the company plant with his truck about 4 p in. on March 14, Hodge told him he had the cards and Hodge and William Gillingham had already filled out theirs. Donald then signed his card. The three men then went to see Sloan, the dockhand who was on the dock. Sloan was an illiter- ate and Hodge and Donald explained to him the significance of signing or making his mark on the card. Sloan asked about the benefits of joining the Union. The con- versation continued in the pumphouse where Donald shut off the pump because of the noise. Donald was the principal spokesman in trying to convince Sloan. The time was about 4:15, shortly before quitting time. At length Sloan said he was not interested. He said he would think about the matter and went into the company office. Donald Gillingham then went to the garage and spoke to Lockland, the mechanic, about signing a union card. Lockland said he would join if all the others did. As Gillingham left the garage, Wyatt came up to him and said, "I'm going to have to let you go." Gillingham said, "Okay, if that's the way you want it." When the latter went for his tools he told his brother and Hodge what had happened. Wyatt then came back to where the men were and collected from Donald a wallet and a cash 1 Wyatt's employment with the Company totaled 5 years, all at the Detroit plant. He had been a driver-salesman and serviceman and 2 years before the hearing had been made service manager. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sum that had been given to the employee for use on company business. Hodge asked Wyatt why he had discharged Donald. Wyatt simply said, "I was told to." The day of the discharge, March 14, was a Tuesday and was approximately the middle of the workweek. The workweek for the employees was Monday through Friday. Payday was on Wednesday and normally the pay would be for the preceding workweek. Donald returned to the plant on Wednesday, March 15, and received his pay for .the preceding week. His wife picked up his pay for March 13 and 14 on Wednesday, March 22. On Friday, March 17, Sloan came into the Bonnie Lad Truck Stop, a restaurant on Respondent's property. Respondent was the lessor of the restaurant concession. The restaurant was in a separate building from that which housed Respondent's gas plant and office but the buildings were adjacent. Respondent's employees patronized the restaurant. Sloan spoke to Flossie Begeman on this occasion. Begeman was employed as a cook and waitress in the Bonnie Lad. I credit Begeman's testimony that on the aforementioned occasion Sloan told her that "three of the boys," the two Gillingham's and Hodge, were being laid off by Respondent. Sloan did not testify at the hearing. Begeman did not know at the time nor did Sloan indicate that Donald Gillingham had already been terminated. Begeman testified that on Monday, March 20, about 10 a.m., Wyatt and Milstead came to the restaurant for breakfast. In speaking with the foregoing individuals whom she knew as "Glenn" [Milstead] and "Ralph" (Wyatt] Begeman asked if everybody was working. Milstead said that everyone was working except Don (Gillingham). Begeman asked what had happened and Milstead said, "They was trying to get the Union in and Don was the ringleader"; he also stated, according to Begeman, that he was not going to have any union, that before he would let any of the employees tell him what to do or how to run the job, in view of his many years in the business, he would fire the whole bunch and hire new men. Wyatt, when asked by Respondent's counsel whether he had any recollection of the foregoing conversation said, "None whatever." He said he did not hear Milstead say that he was not going to have a union. Milstead testified that he did not make any of the statements attributed to him by Begeman. He stated that he had several conversations with Mrs. Begeman concerning her husband who used to come in the restaurant and have arguments with Mrs. Begeman. Milstead said, "As far as having any conversation about our business, I don't remember." Begeman had first worked in the restaurant on Respondent's property in May 1960 under the lessee referred to as "Betty." "-Betty" sold out in September 1960 and the new lessee was "Bonnie." Begeman continued to work for "Bonnie" until April 21, 1961. Begeman left for a better job and higher wages. At the time of the hearing she was a cook in a hotel. The General Counsel called her as his first witness, out of logical sequence, since, he explained, Begeman had to get back to her job. On cross-examination Begeman said that in August 1960 she had spoken to Mil- stead about the possibility of leasing the restaurant. She said that she decided later that she was not interested in the lease. She also stated that Milstead never told her that he (the Company) would not lease the restaurant to her. She denied that she bore any resentment against Milstead. She is the mother-in-law of Hodge, one of Respondent's driver-salesmen whose activities have been described above. Milstead testified that Begeman had wanted him to lease the restaurant to a friend of hers and Begeman was going to manage it. Although he did not tell Begeman that he had decided against her, Milstead said that he leased the premises to Bonnie. Begeman continued working at the restaurant under Bonnie for about 8 more months and then, as we have seen, left for a better job. There is no evidence or statement by Milstead that Begeman manifested any hostility of resentment toward him. In addition to her demeanor, I have carefully considered the evidence relating to Begeman, her testimony, and possible bias. I believe she testified truthfully and I credit her testimony. Corrine Gillingham, wife of Donald testified that on Wednesday, March 22, she went to Respondent's office to pick up her husband's pay for March 13 and 14. On that occasion she had a four-party conversation with Milstead, Wyatt, and Mrs. Murphy. Mrs. Gillingham asked why her husband was discharged. Wyatt said there were a lot of little things which she would not want to hear. Mrs. Gillingham said that she and her husband thought that it was because of the Union. Wyatt said, "that too" and Milstead nodded agreement. Mrs. Gillingham then said that she had told her husband that he should not have been the one to call the Union, that the other men who had been there longer should have done so? Milstead and 2 In length of service Donald Gillingham was the junior employee. INTERURBAN GAS CORPORATION 609 Wyatt stated that the only reason the Union was wanted there was because the men wanted to run the business their way and management was going to run it its way; that Don was low man on the totem pole and they had to make an example of someone and they started with Don and Bill (Gillingham) "was very close to getting it" and the other fellow; and "if we have to we will go from the bottom up to the top and clear out everyone who wants to run the business their way." Wyatt testified that he remembered the conversation with Mrs. Gillingham at which Milstead and Murphy were present . He stated that he told her her husband would not be rehired and, when asked whether he told her way , he said, "We discussed several of the small things such as accidents that hadn't been reported until asked about." Wyatt said he made no reference to the discharge being due to union activity. Milstead, in testifying regarding the above conversation with Mrs. Gillingham, said that when she asked why her husband was discharged "we just said there's a lot of little things." Milstead said he heard no reference to the Union . Murphy did not testify. Mrs. Gillingham as the wife of Donald is obviously not a disinterested witness. However, she convinced me that she was testifying truthfully and I so find. With respect to Respondent's defense in chief, Wyatt referred to a number of instances of inefficiency on Donald Gillingham 's part. The recounted incidents were: in December 1960 Wyatt timed Gillingham at one of his stops and found that the employee took an excessive amount of time; in January or the first of Feb- ruary 1961 Gillingham damaged an incinerator with his truck and did not report the accident until questioned ; in the same period Gillingham bumped into a mail box and did not report the matter promptly ; in January 1961 a Mrs. Hansen tele- phoned and said her checkbook was in Gillingham's truck and she wanted it returned; Wyatt found the checkbook in the truck , did not disturb it, and apparently did noth- ing further; in December, Gillingham took too long to deliver five cylinders of gas and charged the Company overtime (Wyatt stated that he discussed the matter with Gillingham ); also in December the two Gillinghams put their combined loads in Donald's truck and left the other truck (William's) parked unattended for several hours. On March 6 , 1961 , Wyatt said that, as was customary on Monday , the two Gil- linghams went together on the one truck , from which they would serve their com- bined routes. When the men returned, Wyatt checked the truck and found a shortage of 20 cylinders of gas. He called this to the attention of the Gillinghams. They could not account for the shortage and after giving some explanation for some of the missing cylinders, they still could not account for at least 10 cylinders. On March 10, Friday, Jamsse, a company employee who had been a driver-salesman prior to Donald Gillingham's employment and who was doing service work on the dock for the Company prior to March 15, unloaded Donald 's truck . The total number of cylinders was computed from the number of empty cylinders placed on the dock plus the loaded cylinders on the truck . The driver was obliged to turn in receipts or invoices received from the sale of the gas that had been in the empty cylinders. On this particular day, according to Wyatt and Janisse, the latter discovered two empty cylinders on Donald Gillingham 's truck buried amid the full cylinders. The two empty cylinders were allegedly not accounted for by the invoices . Janisse called the matter to Wyatt's attention and the latter verified the fact but did not call it to Gillingham's attention. Wyatt testified that prior to Gillingham's discharge he had no knowledge of his union activities. He stated that for 6 or 8 months he was on the verge of letting Donald Gillingham go and had warned him, but the first time he mentioned to Milstead about terminating Gillingham was on March 6 when the 20 cylinders were missing. In response to Wyatt on March 6, according to Wyatt , Milstead said, "Well, let's wait awhile," we are "in a busy season. . Let's hold off a little while and see if it'll straighten out." Wyatt said that the decision to discharge Gillingham was made in the afternoon of March 14 . Wyatt recommended the discharge , calling to Milstead's attention the new shortage on March 10 . At the hearing Wyatt was asked, "Was there any other reason given by yourself for wanting to discharge Gillingham1" He answered, "I think at the time among other things he was a troublemaker." The witness then referred to the dissension that Gillingham was causing, as described earlier in this report. Milstead testified that he decided to discharge Gillingham on March 6 when the matter of the 20 missing cylinders came up. He said he knew nothing of Gilling- ham's union activity. The only reason, according to Milstead , why the discharge was not made at that time was because he did not have a replacement for Gilling- ham, "You can't just drop a route and tell everybody they have to freeze or go 634449-62-vol 135-40 •610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hungry." Milstead said that there was no mention of waiting to give Gillingham .or the situation a chance to "straighten out." Milstead did not refer to the March 10 incident in his testimony. The discrepancy between Wyatt's and Milstead's testimony, as to the decision made on March 6, is apparent . I also believe that Milstead, who was the ultimate decision maker on the discharge , was not convincing in saying that the delay in making the discharge was due to the lack of a replacement. Janisse had been a driver-salesman before Gillingham was employed. During the latter's employment Janisse continued in Respondent's employ, working on the dock and doing service work. When Gillingham was discharged on March 14, Janisse went to work in his place on March 15 and was still employed at the date of the hearing. A replace- ment for Janisse was not hired until 6 weeks or 2 months later , indicating that Janisse, the at-all-times available replacement for Gillingham , could be readily spared without leaving a vital gap in the organization. Wyatt, Milstead, and Janisse all place the date of the missing 20 cylinders as Monday, March 6. All agree that the two Gillinghams were on the same truck that day and made joint deliveries on the route . William Gillingham agrees that when he and his brother were told that they were short 20 cylinders they had been on the truck together. He states that he was not working with his brother on or about March 6 and did not work on a route with his brother in March.3 He stated that the question of the 20 cylinders came up in January 1961. Donald Gillingham also testified that the 20-cylinder incident occurred in January, on a Monday when he and his brother worked together. When pressed as to why he remembered that particular time, he said that when he came home from work his wife told him that "Bill" (William Gillingham) was going "to catch it." She said that Bill's wife was washing his pants that day and found the Company's $50 Christmas bonus check in the watch pocket . Bill had previously told his wife that the bonus was only $25 . Donald testified that he then said to his ( Donald's) wife, connoting brotherly sympathy, "Boy, that makes everything perfect ." because Wyatt "jumped on him [Bill ] at work because of some missing cylinders and now his [Bill's] wife is going to jump him when he gets home on account of the bonus check." I regard this homely vignette of marital domesticity as having a ring of authenticity under the circumstances and I believe it would be a factor in why a witness remembered a particular date. It also is my opinion that it is unlikely that an employee such as William, earning a relatively modest wage, would have been ,carrying around an uncashed $50 Christmas bonus check until March . In addition to the general human need for money among most people who work at an hourly rate, as well as others, it would be something of an accomplishment for William, whose wife apparently had ready access to his pants pockets, to conceal the check from December to March . Further, even if his powers of concealment were more ingenious than the evidence discloses , he was obliged to produce at least $25 over and above his wages without cashing the bonus check. All in all I doubt that the check would have survived until March . I think it much more likely that the dis- covery, the wifely repercussions, and the trouble about the 20 cylinders occurred in January as Donald Gillingham's testimony indicated . I so find. There is a great leal of evidence in the record regarding the 20 missing cylinders (i.e., the contents of 20 cylinders were unaccounted for by invoices turned in by the two driver-salesmen). A shortage of 10 to 20 cylinders was obviously a shortage of almost wholesale proportions 4 Wyatt testified that unknown to the Gillinghams Elie counted the cylinders before the truck left in the morning and counted the empty cylinders that evening . The Gillinghams did not count the cylinders before they left and there apparently was no requirement that they do so. When they returned they turned in invoices for the empty cylinders . Wyatt counted the empty cylinders and the invoices. He had Janisse count the empty cylinders. They both say there were 20 short. Wyatt then brought the Gillinghams down to the dock to count the empty cylinders on the dock . There were 20 cylinders not covered by invoices. The Gillinghams offered some explanation for about 10 cylinders , such as customary gifts to trailer park owners and leaky cylinders of customers. They could not ex- plain at least 10 empty cylinders . Wyatt testified as to why he believed Donald was responsible . The testimony of Donald and William indicated that from their standpoint the shortage was explainable only by some mistake in the original count as to the number of cylinders that had gone out in the morning. Their testimony 3 No company records were introduced to controvert this flat statement 4 For instance , on another point of testimony Wyatt stated that a driver should be able to deliver at least 20 cylinders in a day This would indicate that 20 cylinders would approximate 1 day's work INTERURBAN GAS CORPORATION 611 also indicated that if they were at fault it was impossible to fix responsibility on one rather than the other. William said they both maintained the sales records that were turned in. The entire matter of two empty cylinders on March 10 depends on the testimony of Wyatt and Janisse, two witnesses whose reliability has not impressed me. I have rejected their testimony that the 20-cylinder incident occurred on March 6 rather than in January. This finding casts considerable doubt on the March 10 episode which was admittedly never mentioned to Gillingham. It is also clear, from the testimony of Wyatt, Milstead, and Mrs. Gillingham, that neither Wyatt nor Milstead mentioned anything about the 20-cylinder incident or the 2-cylinder incident to Mrs. Gillingham when she asked why her husband was discharged. Respondent, on the other hand, has adduced testimony regarding the cylinders as the prime reason for the discharge since the derelictions were assertedly regarded as intolerable. On the other hand, Wyatt and Milstead testified that they told Mrs. Gillingham that the discharge was due to a "lot of little things." There admittedly, as above noted, was no mention made of the allegedly missing cylinders. Wyatt and Milstead sought to imply that they were trying to spare Mrs. Gillingham from knowing of her husband's relationship with a Mrs. Hansen. The evidence on this score was also unconvincing since Mrs. Gillingham was well aware that her husband had helped Mrs. Hansen to move from her (Mrs. Hansen's) husband's trailer, Mrs. Hansen having first spoken to Mrs. Gillingham beforehand about the matter. In any event, there ap- pears to be no reason why Mrs. Gillingham should not have been told, if it was the principal reason for the discharge, that on two occasions there had been serious discrepancies in her husband's invoices or something of that nature. From the standpoint of convincing evidence, in addition to what has already been said, the cylinder incidents leave much to be desired. If, on March 10 or on any date, Gillingham sold the contents of two cylinders and pocketed the receipts, it would seem that a dishonest employee would also have disposed of the two cylinders physically. Carting them back to the plant and trying to conceal them on his truck with the full cylinders accomplished little, even if temporarily successful, since the next day, when he returned, he would still have two unaccounted for empty cylinders. Somewhat the same observation is applicable to the 20-cylinder incident. The rather huge embezzlement of the receipts from 20 cylinders would seem to dictate the physical disposal of the evidence, the 20 empty cylinders, before return to the plant. At least in that event the culprit could not be confronted with 20 empty and unexplained cylinders and the employer would have been obliged to rely solely on its unverified count of 'how many cylinders had originally left the plant. It is of course clear that the employer could have discharged an employee be- cause of the cylinder incident. An employer is free to discharge for a good reason, a bad reason, or no reason, so long as the reason was not, in fact, the employee's union activity. The only issue before me is whether the true motivation for Gilling- ham's discharge was inefficiency and dishonesty or his union activity. The evidence in the instant case, previously set forth, persuades me that Donald Gillingham was not discharged because of missing cylinders on any occasion or because of other inefficiencies. The credible evidence shows that even assuming that Respondent may have regarded Gillingham as less than a desirable employee the cause and the precipitating cause of the hasty discharge in the middle of the workweek was the March 14 union activity, the first overt act of organizing Respondent's em- ployees.5 Gillingham was the ringleader and the "troublemaker" and on March 14 it became apparent that a serious move was being made to organize the employees. The testimony of Mrs Begeman and Mrs. Gillingham establishes that Respondent was aware of Gillingham's union activity prior to the discharge and discharged him for that reason.' In a small establishment with less than 10 people, including supervisors, either through an informer or otherwise, Respondent's knowledge of what was going on is readily understood and reasonably inferred from the evidence in this case. It is therefore my finding and conclusion that Donald Gillingham's discharge was discriminatory in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and that Respondent thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. IV. THE REMEDY In the light of the findings of fact and conclusions of law above made, the con- ventional remedy for illegal discharge is appropriate. Although there is a single unfair labor practice, it reveals a basic opposition to the rights guaranteed to employ- ees by the Act and a broad order is recommended. 6Cf N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C.A. 3). 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is ordered that the Respondent, Interurban Gas Cor- poration, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their employment. ^(b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Donald Gillingham immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of his discriminatory discharge on March 14, 1961, to the date of the offer of reinstatement, less his net earnings during said period, said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its shop and office in Trenton, Michigan, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in the Teamsters Union, or in any other labor organization of our employees, or discriminate in regard to their hire or tenure of employment or any other term or condition of their employment. WE WILL offer to Donald Gillingham immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights previously enjoyed, and will make him whole for any loss of pay suffered as a result of the discrimination against him. 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 the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. INTERURBAN GAS CORPORATION, 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.