Six Robblees' Inc.

SIX ROBBLEES' INC. 13 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By threatening A. J. Spain, Jr., with refusal of employment because he filed a grievance with respect to conditions of employment , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By refusing to employ A. J. Spain , Jr., from November 28, 1961, to January 24, 1962, for having filed the grievance aforementioned , Respondent has engaged in un- fair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By refusing to give A. J. Spain , Jr., employment as a truckdriver on and after April 10, 1962, because he filed the grievance aforementioned and the charge in Case No. 26-CA-1217, Respondent violated Section 8(a)(1) and 8 (a)(4) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it is recommended that Respondent be ordered to cease and desist therefrom , and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has illegally denied Spain employment, it is recom- mended that Respondent be required , when work for casual or extra employees is available at its Nashville terminal , to offer such employment to Spain , including employment as a truckdriver . It is further recommended that Respondent be re- quired to make Spain whole for any loss of pay he may have suffered because of the failure to employ him in any capacity between November 28, 1961, and January 24, 1962, and for Respondent's refusal to employ him as a truckdriver on and after April 10, 1962; the exact amount thereof to be determined in compliance proceedings . In arriving at the total amount of backpay to which Spain may be entitled, there shall be deducted therefrom the sum of $325 paid to him on or about May 21, 1962. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest as prescribed in Isis Plumbing & Heating Co ., 138 NLRB 716. [Recommended Order omitted from publication.] Six Robblees' Inc. and Retail Clerks Union, No. 367, Retail Clerks International Association, AFL-CIO. Case No. 19-CA-2470. April 16, 1963 DECISION AND ORDER On January 15,1963, Trial Examiner Eugene K. Kennedy 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and 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 McCulloch and Members Rodgers and Fanning]. 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- 142 NLRB No. 3. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report and entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner 2 ' For the reasons set forth in the dissenting opinion In Isis Plumbing & Heating Co., 138 NLRB 716, Member Rodgers would not award interest on backpay. -The notice is hereby amended so that It will read: NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing in this proceeding was held in Seattle, Washington, on November 6, 1962, before Trial Examiner Eugene K. Kennedy. The principal issues litigated were whether Respondent, Six Robblees' Inc., herein called Respondent, discrim- inated with respect to the employment of one Kenneth Devenny and whether Re- spondent breached its obligation to bargain with Retail Clerks Union No. 367, Re- tail Clerks International Association, AFL-CIO, herein called the Union. Upon the entire record, my observation of the witnesses , and consideration of briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD AND THE BUSINESS OF THE RESPONDENT Respondent is a Washington corporation with its principal place of business at Seattle, Washington, and with a branch in Tacoma, Washington . This branch, the one involved in this case, is engaged in the business of selling truck and trailer parts and equipment, at wholesale and retail . Within the past 12 months Respondent has received at its Tacoma store , truck and trailer parts and equipment valued in excess of $50,000 from firms which purchased this equipment directly from outside the State of Washington . Within the past 12 months Respondent has sold truck and trailer parts and equipment valued in excess of $50 ,000 from its stores located within the State of Washington , including the Tacoma branch store. Respondent is now, and at all times material herein has been , an employer en- gaged in commerce or in a business affecting commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is regularly engaged in representing employees and entering into col- lective bargaining on their behalf. It is found that it is a labor organization within the meaning of the Act. 111. THE UNFAIR LABOR PRACTICES A. The events The complement of personnel at Respondent's Tacoma branch included Kenneth Devenny, counterman ; Lane Jones, a partsman; a manager named Robert Dille; and an outside salesman named Barnes. Devenny was employed by the Respondent in December 1957 and was terminated August 3, 1962 . During his employment he had received several wage increases bringing his salary to $450 a month at the date of his termination. Approximately in January 1962 Devenny had asked Robert Dille, the store man- ager, to increase his salary to the amount of the union scale than existing in Tacoma. On or about April 30, 1962, Dille informed Devenny that he was to be given a wage increase but not enough to bring him to the union scale. Devenny expressed dis- satisfaction and informed Dille there was nothing left for him but to go to the Union. After this, on May 7, 1962 , Dille, the store manager, also went to the Labor Temple in Tacoma and talked to a Harry Wuestney , the Union's business representative. SIX ROBBLEES' INC. 15 He inquired from Wuestney about the procedure required for employees of Re- spondent to join the Union.' When he returned to the store Dille told Devenny that in order to join the Union it was necessary to sign application cards. On May 8, Devenny and Jones went to the Labor Temple and executed union application cards. On their return to the shop Devenny informed Dille that he and Jones had signed union cards.2 About a week later Wuestney called on Dille at the Tacoma store and gave him a proposed contract to be executed. Dille informed Wuestney that he would have to send the document to Seattle for the approval of Robblee, Respondent 's president. About a week later Dille informed Wuestney that Robblee would not sign a con- tract and suggested that he make an appointment to see Robblee in Seattle . Wuestney did so and, along with another union representative, met with Robblee in Seattle on May 29, 1962. At this meeting Robblee stated that he doubted the Union represented a majority of Respondent's Tacoma employees . He also stated that he had no intention of signing a contract with any labor organization .3 The meeting terminated with Wuestney saying something to the effect that the Union would have to go the long way around and follow legal procedure , and without any discussion concerning the provisions of the proposed contract. On June 1 , 1962, a letter was sent to Robblee requesting him to appear before the executive board of the Retail Clerks Union . Neither Robblee nor his representa- tive appeared at this meeting. The Union then filed a representation petition with the National Labor Relations Board on June 22, 1962, seeking recognition of a unit composed of a counterman and partsmen and excluding from the claimed appropriate unit the manager and outside salesman. On July 9, 1962, the Union filed an unfair labor practice charge with the National Labor Relations Board . The events preceding this charge were as follows: Sometime in late June 1962 on a Friday, Robblee told Dille that he was to have Barnes, the outside salesman, and Devenny, the counterman , switch jobs. When Devenny was informed of this by Dille he informed Dille that he would like to have the weekend to think it over ? Devenny then advised Wuestney , the union representative, of the developments and Wuestney advised Devenny to accept the outside salesman job and he (Wuestney ) would file an unfair labor practice charge with the National Labor Relations Board . This charge was filed by Wuestney on July 9, 1962, alleging that Respondent threatened to assign Devenny to work as an outside salesman because of his activities on behalf of the Union. The following Monday, Devenny told Dille he would accept the outside salesman job, although he preferred to work in the store . On the next day, Dille took Devenny with him to confer with Robblee in Seattle . At this meeting Robblee gave Devenny the "same pitch" that he always gave his new salesmen , as indoctrination. Despite this, Devenny advised Robblee that although he would take the job as outside sales- man, he would prefer to remain working inside the store . Robblee informed Devenny that he would then "leave things as they were for now." 1 Dille testified that the purpose of his visiting Wuestney was to ascertain how the em- ployees could obtain medical benefits . Although this was probably included in the sub- jects covered in his conversation with Wuestney , as indicated above , it is also found, based on the credited testimony of Wuestney , that he made inquiries as to how Respondent's employees could join the Union. 2 This finding Is based on Devenny's credited testimony . Dille's dental that he ever mentioned union cards to Devenny is unpersuasive in the context of the small Informal shop with admitted conversations about the Union and in view of the fact that Dille, the store manager , visited the union hall on May 7, and on May '8 Devenny and Jones during working hours went to the union offices where they signed the union application cards and returned to the store before 5 p.m., which was closing time of the store. ' Robblee denied that he made this statement attributed to him in Wuestney's testi- mony. In addition to considering the demeanor of these witnesses in making the finding that Robblee made this statement, Ro'bblee's testimony in general was not of a convincing nature as it appeared unduly prolix and nonresponsive. 4 Devenny testified that Dille suggested lie get in touch with the Union . Dille denied this. I find Devenny's testimony more consistent with the preceding events including Dille's admitted visit to the union office in May 1962 . The conduct of Dille suggests at the early stages he was in favor of the employees being represented by the Union but as events progressed into July 1962 , apparently the pressure exerted upon hint from Robblee forced Dille to take a Position against union organization which culminated in Devenny's discharge. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent introduced a document purporting to reflect the dates of wage in- creases given to employees including Devenny and Jones, as follows: SIX ROBBLEES, INC. Lane Jones: Start-June 1, 1961. Dates and rate of pay per month: 5 6/1/61------------------------------------------------- $335.00 12/1/61------------------------------------------------ 350.00 6/1/62------------------------------------------------- 375.00 Keith Devenny, Jr.: Start-Dec. 16, 1957. Dates and rate of pay per month: 12/16/57----------------------------------------------- $320.00 3/15/58------------------------------------------------ 330.00 1/1/59------------------------------------------------- 350.00 4/15/60------------------------------------------------ 385.00 7/1/60------------------------------------------------- 400.00 11/1/61------------------------------------------------ 415.00 6/1/62------------------------------------------------- 450.00 The wage increase given to Jones and Devenny was made several weeks after Re- spondent's Tacoma manager received notice of the Union's majority status.6 It was also instituted after Respondent's President Robblee had been advised by Dille that Jones and Devenny had made formal application to the Union. Robblee did not specifically deny that he had knowledge of Jones and Devenny belonging to, or having made application to, the Union. The finding that he was aware that they had made application is based on Devenny's credited testimony to the effect that he was in Dille's office when Dille put in the telephone call to Robblee in Seattle and heard him state on the telephone that Jones and Devenny had made formal application to the Retail Clerks Union and that he was sending Robblee a copy of the proposed union contract. At this point in the conversation Dille asked Devenny to step out of the room. On August .1, 1962, the first amended charge was filed by the Union against Respondent, alleging that Respondent gave a termination notice to Lane Jones because of activities on behalf of the Union, and also alleging that Respondent had refused to bargain in violation of Section 8(a)(5) of the Act. On July 25, 1962, Lane Jones was given a termination notice by Respondent. Respondent received a copy of the first amended unfair labor practice charge on August 2, 1962. Devenny was fired by Dille on the morning of August 3, 1962. Dille informed Devenny that the reason for his discharge was "because there was too much friction." The alleged reasons for Devenny's discharge are contained more specifically in a letter that Dille wrote Robblee on the night of August 2, 1962, and sent to him on August 3, 1962: THURSDAY EVENING, AUG. 2, 9:00 P.M. Mr. J. H. RoIIBLEE, % Six Robblees' Inc., 1700 4th So., Seattle, Wash. DEAR HANK: I am mailing this to you after I talk to you on the phone tomorrow morning. I am writing it now so that you will know that my actions are not the result of a condition of momentary anger. The situations that bring me 5 The testimony of Devenny concerning the timing of his wage increases is confused. If Respondent's exhibit concerning the dates of the wage increases set forth above is correct, Devenny's memory is faulty when he testified that lie received a $15 wage increase and in the following paycheck he received an additional $35. Devenny was also confused as to months and years with relation to other events. With respect to the timing of the wage Increase Robblee's testimony is also somewhat confused. He testified inconsistently that he made a decision to give Devenny his increase In April and then in June 1962. The explanation of this that he made later in his testi- mony was to the effect that he decided to give the increase in April but decided on the amount in June. e The record establishes that Dille was a supervisor within the meaning of the Act and knowledge conveyed to him is attributed to Respondent as well as his actions as a super- visor being chargeable to Respondent. SIX ROBBLEES' INC. 17 to this decision have been occuring for some time now, and have become more apparent the last two or three weeks. Tomorrow evening I leave for a two week vacation and I feel that this is the most appropriate time for my action. Tomorrow morning I am discharging Kenny Devenny from our employ. I do not like threats or pressures put on me and I hope you do not take my next statement as such toward you. If my discharging of Kenny does not meet with your approval then my services will be no longer available to Six Robblees'. I cannot continue to act as manager of this branch with an employee whom I cannot trust and one who cannot accept my confidence in him in the manner in which I extend that confidence. Perhaps I have been too liberal or easy with the other employees here. I still feel though that this was and is the only way to operate a small group such as we have here. There are so few of us here to go around that we each must do a little of everything and be each other persons ' right hand . We must have confidence and trust in each other's actions . We have to be a team or we will drive the business elsewhere, and that is what has been happening here in, the last few weeks. Specifically: 1) In the last few weeks two or three times a day I have had to call Kenny up front from the warehouse (where he was talking casually with Lane, who was either lining shoes or doing stock work ) to help me with two or three customers who are waiting for service. At this late date in his employment he knows of enough work up front to keep him busy without bothering some one else. Besides which, with the doors to the warehouse open the opening and closing of the front door can easily be heard. 2) Tuesday afternoon of this week (July 31) about 4:00 P.M. I was waiting on Bill Bevan of St . Regis Paper Co. While we were waiting for a phone call from their Maintenance Supt. in Morton I bought Bill a coke from our machine. Kenny noticed that it was getting low on coke , so he proceeded to refil the machine. This was fine . At this time Bob White ( one of Bob Carlson's drivers ) drove up in his logging truck and came in for some part that he needed. By now I was on the phone talking long distance to Morton, and another customer has also entered the store, who Lane was taking care of. Bob White pleaded with Kenny for a good five minutes to help him find what he wanted until Kenny finally finished loading that very important coke machine and found him what he needed . As you know, Pacific Ave. at 4:00 P.M. is not a very good place to have a logging truck parked in a restricted zone. 3) On at least three occasions (and I believe more) in the last two weeks Kenny has stated "I have to go up town" to which I have given permission and said "hurry back". This morning the same thing occurred. After approximately an hour I was getting a little impatient. Things were beginning to pile up and in walked the Stemco factory representative with whom I had agreed to spend some time. I told Lane "call the union office and tell Kenny to get back here." He was slightly taken aback and asked me what their number was. I told him that I didn't know but to look it up and call him . This he did and within a few minutes Kenny returned. In the past if one of the employees has had some legitimate or urgent busi- ness uptown (and it has been up to them whether it was legit or urgent) they have been extended the time for I have felt that they would reciprocate in spirit and effort here at the job when the needs arose, and I have no objection to them seeing the union people on their own time, but I do take as an insult to me personally their abuse of liberties I offer in good faith . I don't think that spending time in the Union office while the company is paying them is exactly a legitimate reason for "going uptown." 4) This afternoon about 3:15 I had to make a rush call to American Con- crete with some studs and nuts for a front end loader which had lost a wheel. Lane was in the back of the shop, dirty from work, trying to get some things out for a brake job at Sea-Tac Equip. As I drove away I looked back to see Kenny walking across the street to have coffee with a transeient customer, leaving Lane alone and busy with his work to answer the phone and wait on any customers that might need taking care of. This time of day is generally our busiest time. This to me is just poor judgment or contempt for the interest of the business. These are a few specific instances . I can relate more if need be. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hank, don't worry about me if you choose to reverse my decision. I have had one good looking offer down in Oregon, and I am sure there are other situations available if I do a little looking. I have always been proud to work for Six Robblees'. I have tried to do a good job, though sometimes I may have fallen short . There have been times when I was not too happy , but I imagine if I were a Vice President of General Motors that there would be the same number of times when I would feel abused . We are all of us human and we all have ego's . I imagine there have been just plenty of times you have been un- happy with me. If for any reason you desire to reach me during the next two weeks we will probably be at Lake Chelan State Park. General Delivery, Chelan, Wash. will reach us if we are there. At any rate I will send you a card, for if you agree with my decision you may need more specifics to answer the NLRB. Very respectfully, [S] Bob, R. P. DILLE. In his testimony Dille related that personal friction with Devenny commenced about 2 or 3 weeks prior to his discharge when Devenny was asked to take the outside salesman job. Dille testified that before this Devenny had been a satisfactory em- ployee. Dille also admitted that the alleged reasons for Devenny's dismissal were not discussed with Devenny prior to , or at the time of, his discharge . In this con- nection it is also noted that Robblee conceded that he thought very highly of Devenny's job performance and was greatly surprised when he learned that Devenny had been discharged. The opening paragraph of Dille's letter to Robblee of August 2, 1962, casts doubt on Robblee's statement that he first heard of Devenny's discharge from his lawyer after a charge had been filed by the National Labor Relations Board This charge was filed on August 3, 1962. In the letter which is set forth above, Dille advised Robblee that he intended to call him on the morning of August 3 and inform him of his decision to terminate Devenny. Robblee also testified that Dille did the hiring and firing of employees after consulting with him. The procedure utilized by Dille in firing Devenny without consulting Robblee or the individual Robblee left in complete charge of his affairs was obviously a deviation from the customary procedure, if, in fact, it was Dille's decision to fire Devenny. With refer- ence to the four incidents in Dille's letter of August 2, 1962, which Dille described as specific reasons for Devenny's discharge, Devenny credibly testified, as follows: (1) The first incident in effect charges Devenny with neglecting his work and with bothering Jones instead of helping Dille wait on the customers. Devenny's testimony puts this charge in proper perspective. For 2 or 3 weeks before his discharge there were heavy shipments coming into the store and the outside salesman Barnes was on his vacation and it was necessary for him to assist Jones in putting the parts away that were received during this period. Devenny's testimony is credited to the effect that he was performing necessary work and not "bothering someone else" when he was not in the front part of the store. (2) Dille also claimed in effect that Devenny was neglecting a customer who was waiting for parts with his truck double parked in the street. Devenny testified that he was filling the coke machine and was chatting casually with a customer who was waiting while Jones brought in parts the customer was waiting for, and that when Jones had brought the parts Dille then waited on the customer for the additional part that was already in stock and that he did not delay the customer as charged by Dille. (3) With respect to Dille's third alleged reason for discharging Devenny it appears on the face of Dille's letter that union activities previously permitted by Dille were used as the reason for discharging Devenny. Prior to this incident Dille had permitted Devenny to use his own discretion to go on personal business, including visits to the union office. With respect to the con- duct complained of by Dille it appears from the record that Dille knew that Devenny was at the union office when he asked Jones to telephone Devenny and ask him to return to the store. Consequently, it is clear that one of the specific reasons Dille utilized for the termination of Devenny was his engaging in visits to the union office, which heretofore had been permitted by Dille. (4) Dille also complained that Devenny went across the street to get a cup of coffee leaving Jones alone in the store. Devenny credibly testified that this was a common practice and each employee frequently left one man in the store for a brief period when he went across the street to have coffee with a customer. In short, of the four reasons advanced by Dille for firing Devenny three constituted inconsequential trivia at best and the fourth is an admission that Respondent was in part motivated in firing Devenny because he was engaging in union activity. SIX ROBBLEES' INC. 19 Concluding Findings 1. The appropriate unit As alleged in the complaint, a unit appropriate for collective bargaining was here composed of a counterman and partsmen , excluding the manager and outside sales- men. This was the unit described in the petition filed by the Union on June 27, 1962, but it was not particularly described to Robblee on the occasion of the May 29 meet- ing with the union representative . The failure to do so by Wuestney was in substan- tial measure attributable to Robblee 's announcement that he would never sign a contract with any labor organization . Obviously, it would have been a useless act on the part of the union representative to indicate the claimed appropriate unit. Moreover, Respondent did not base its refusal to bargain with the Union on any claimed different view as to what constituted an appropriate unit, and in the circum- stances here presented , the refusal of Respondent to bargain cannot be justified be- cause the precise description of the claimed unit was not specified at the May 29 meeting. The record reflects the outside salesman spent about 25 percent of his time in the store, some of which time was spent in doing the same work performed by the coun- terman and partsman . Robblee characterized the work of the outside salesman as "diametrically opposite" from that done by the counterman and partsman . Whether or not this characterization is too extreme it seems clear that the unit alleged by the General Counsel is appropriate for collective bargaining. Since the work performed by counterman Devenny and partsman Jones was of a similar nature, and the sales- man's work was very different, and the only other remaining employee in the Tacoma branch was a manager who was a supervisor within the meaning of the Act, a unit of countermen and partsmen clearly is appropriate. 2. Majority status of the Union Devenny and Jones, the only two employees in the appropriate unit, signed union authorization cards on May 8, 1962. This was known to Respondent prior to May 29, 1962. Hence there is no question as to the majority status of the Union and the knowledge of this status by Respondent at all times material herein . The claimed basis for doubt by Respondent of Jones' not belonging to the Union or not having authorized it to act as his bargaining representative is extremely tenuous, being based on inquiries from Jones and his father directed to Dille as to whether Jones would be the first to be laid off in the event of a reduction in personnel. The effect of Dille's statement to Robblee in early May 1962, informing him that Jones and Devenny had applied to the Union, creates a solid basis for Robblee's knowledge that Jones had cast his lot with the Union, and nothing in this record would reason- ably support an inference that Respondent had knowledge of any change in Jones' position if any change did, in fact, occur. 3. Refusal to recognize and bargain with the Union The statement by Robblee on May 29, 1962, addressed to Union Representative Wuestney that he would never sign a contract with any labor organization constitutes a clear and unequivocal refusal to bargain. Respondent's subsequent failure to change its position, coupled with other acts having the foreseeable effect of under- mining the Union, supports the finding that commencing on May 29, 1962, Re- spondent has continued to refuse to recognize and bargain with the Union. 4. Unilateral change of salaries of employees in the bargaining unit Inasmuch as Respondent had notice of the majority status of the Union prior to May 29, 1962, the granting of a wage increase to the two employees in the unit in June 1962 without consultation with the Union represents an attempt by Respondent to undermine the Union as the bargaining representative of its employees. Respond- ent is presumed to have intended this, as it is charged with the result attributable to the foreseeable consequences of its conduct which in this case would likely be a weakening of the Union's status as a bargaining representative of the employees in the unit. N.L.R.B. v. The Radio Officers, etc. (A. H. Bull Steamship Company), 347 U.S. 17, 45. Respondent explains its grant of wage increases in a seemingly curious manner. Jones allegedly on June 1 was given a wage increase because he was due for a regular 6-month raise. The dates of Devenny's increases, set forth above, show that Devenny did not receive a wage increase at regular 6-month intervals. It is also noteworthy 412-548-64-vol. 142-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Barnes, who Robblee was practically positive did not belong to the Union, did not receive a wage increase on June 1, 1962. 5. Other conduct of Respondent designed to destroy the support for the Union by employees in the bargaining unit a. Solicitation of employee to leave unit The solicitation by Respondent of Devenny to accept the outside job in July 1962 would have the effect of destroying the bargaining unit. In view of Respondent's knowledge of the composition of the unit and the antiunion sentiment reflected by President Robblee in the May 29, 1962, meeting with Wuestney, Respondent is here chargeable with intent to undermine the Union which would be a foreseeable result of its action in changing the composition of the unit if it were successful in transferring Devenny out of the unit. The Radio Officers Union, supra. b. Transfer of outside salesman into the unit and notice of termination of Lane Jones At the May 29, 1962, meeting Robblee indicated that he was practically positive Barnes, the outside salesman, was not represented by the Union. As noted above, he was on notice that Jones had made formal application to become a union member. After Devenny declined to accept the job of outside salesman, notice of termination was given to Jones on July 25, 1962, and Barnes, the outside salesman, was brought in to work in the store, thereby undermining the majority status of the Union. In light of the other circumstances here present, Respondent by this conduct is charge- able with another attempt to undermine the Union by weakening its majority status. c. Discharge of Devenny and revocation of notice of termination of Jones as attempts to destroy the support of employees in the bargaining unit for the Union The discharge of Devenny as in the case of Respondent's other conduct described above represented a further attempt by Respondent to undermine the Union's bar- gaining status. Whether or not the revocation of the notice of termination to Jones constitutes a separate violation seems doubtful. In any event since the recommended remedy would be the same, it would appear to add nothing here to find this is a separate violation of Section 8(a)(5) and (1) of the Act. The same considerations apply to the question as to whether the notice of termination given to Jones is a separate violation of Section 8(a)(3) and (1). 6. Respondent's defense of Devenny's discharge The reasons ascribed by Respondent for the discharge of Devenny may be characterized as personal friction felt by Dille commencing about mid-July 1962 when Devenny refused the job of outside salesman. As previously noted, three reasons specified by Dille which purportedly caused this friction appeared to be inconsequential when it is considered that for approximately 4 years Devenny had been held in high esteem by Robblee and Dille, and that the minor incidents covering a period of 3 weeks at most prior to his discharge had never been mentioned by Dille to Devenny prior to, or at the time of, his discharge. It is true that theoretically Devenny could have been dismissed for these reasons without constituting an unfair labor practice. However, where as here, there is substantial evidence, albeit circumstantial, to indicate that an employee was dis- charged to undermine the Union, a definite burden is imposed upon Respondent to prove the existence of a reason not with the prohibitions of the Act sufficient in itself to warrant or justify the discharge. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). It is found in the light of Devenny's prior satisfactory work history for a period in excess of 4 years and the fact that he was not advised as to these alleged shortcomings prior to his termination, the Respondent has failed to prove an adequate reason to sustain its burden in the posture of events here presented. The fourth reason assigned by Dille clearly linked Devenny's discharge with union activity. Even though it was only one of Respondent's reasons it still constitutes a discriminatory discharge. N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883 (C.A. 1). In the posture of these events, Respondent's claimed defense of economic neces- sity is irrelevant, as that defense would only apply to Jones and not to Devenny's discharge, since Respondent squarely rested its defense of Devenny's discharge on the personal feelings of Dille. It is worth noting, however, in connection with its SIX ROBBLEES' INC. 21 claim of economic necessity that its decision to terminate Jones was made only after Devenny refused the job of outside salesman, and thus frustrated Respondent's attempt to destroy the majority status of the Union by such a transfer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III of this report, occurring in connection with the operations of the Respondent described in section I, thereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: V. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce or in a business affecting commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. At all times material herein the Union was the designated bargaining rep- resentative of a unit appropriate for the purposes of collective bargaining, consisting of countermen and partsmen and excluding a manager and outside salesmen. 4. By refusing to bargain collectively with the Union as the exclusive bargaining representative of all employees in the unit described in paragraph 3, above, Re- spondent has violated Section 8(a)(5) and (1) of the Act. 5. By unilaterally changing the salaries of the employees in the unit, described in paragraph 3, above; by solicitation of employee Devenny to transfer outside of the bargaining unit; by transfer of the outside salesman to a position in the unit, and by the discharge of Devenny, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By discriminatorily discharging employee Devenny on August 3, 1962, Re- spondent violated Section 8(a)(3) and (1) of the Act. VI. THE REMEDY The conventional remedial relief for discriminatory discharge and for failure to bargain violative of the Act will be recommended. With respect to the discrim- inatory discharge, reinstatement and backpay for employee Kenneth Devenny are recommended in accordance with the formulae set forth in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Further, a broad cease and desist order will be recommended here as the conduct of Re- spondent in discharging Devenny goes to the heart of the Act and its persistent attempts to undermine the Union indicate the likelihood of other violations of the Act occurring in the absence of a broad cease and desist order. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, Six Robblees' Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Retail Clerks Union No. 367, Retail Clerks Inter- national Association, AFL-CIO, and from its attempts to undermine said Union as the bargaining representative of the employees in its Tacoma store. (b) Discriminating against its employees because of their activity on behalf of Retail Clerks Union No. 367, Retail Clerks International Association, AFL-CIO, or any other labor organization. (c) Interfering with, restraining, and coercing employees by soliciting the transfer of employees from the bargaining unit described above, and by unilaterally granting wage increases without consultation with the Union. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist labor organiza- tions, including the above-named organization, 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. 2. Take the following affirmative action which it is found will effectuate the poli- cies of the Act: 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request bargain collectively with the above-named labor organizations as the exclusive representative of the employees in the aforesaid unit and if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Kenneth Devenny reinstatement to his former or substantially equiv- alent position without prejudice to his seniority, or other rights and privileges pre- viously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in section V, above, entitled "The Remedy." (c) Preserve and, upon request, make available to the Board's agents, for exam- ination and copying, all payroll records and reports, social security payment records, timecards, personnel records and reports, and all other records necessary or ap- propriate to analyze the amount of backpay with interest and other benefits due, and the rights of reemployment under the terms of this Recommended Order. (d) Post at its store in Tacoma, Washington, copies of the attached notice marked "Appendix." 7 Copies of this notice to be furnished by the Regional Director for the Nineteenth Region shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Nineteenth Region in writing within 20 days from the receipt of this Intermediate Report and Recommended Order what steps Respondent has taken to comply herewith.8 9 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that -the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 8 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director In writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL upon request bargain collectively with Retail Clerks Union No. 367, Retail Clerks International Association , AFL-CIO, as exclusive representative of all our employees in the appropriate unit with respect to rates of pay , wages, hours of employment, and other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. The appropriate unit is: Countermen and partsmen excluding the man- ager and outside salesmen in Respondent's Tacoma branch. WE WILL NOT discourage membership in Retail Clerks Union No . 367, Re- tail Clerks International Association , AFL-CIO, or in any other labor organiza- tion, by discriminating in regard to our employees ' hire, tenure of employment, or other terms and conditions of employment. WE WILL NOT solicit the transfer of employees outside of the unit described above for the purposes of undermining employees' support of the Retail Clerks Union No. 367, Retail Clerks International Association , AFL-CIO, or any other labor organization. WE WILL NOT make unilateral changes in wages or other terms and conditions of employment of our employees in the appropriate unit described above without consulting and bargaining in advance with the above -named labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization , to form labor organiza- tions, to join or assist Retail Clerks Union No. 367, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted NICKEY CHEVROLET SALES, INC. 23 activities for the purpose of collective bargaining or other mutual aid or pro- tection, 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 authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Kenneth Devenny immediate and full reinstatement to his former or substantially equivalent, position without prejudice to his seniority or other rights and privileges. WE WILL make whole Kenneth Devenny for any loss of earnings, together with interest, that he may have suffered as a result of our discrimination against him. All our employees are free to become or remain , or refrain from becoming or remaining, members in good standing of Retail Clerks Union No. 367, Retail Clerks International Association, AFL-CIO, or any other labor organization , except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as was modified by the Labor- Management Reporting and Disclosure Act of 1959. Six ROBBLEES' INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employee in the event he is presently serving in the Armed Forces of the United States of his full right to reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 327 Logan Building, Fifth and Union Streets, Seattle 1, Washington , Telephone No. Mutual 2-3300, Extension 553, if they have any questions concerning this notice or com- pliance with its provisions. Nickey Chevrolet Sales, Inc. and Automobile Mechanics Local 701, International Association of Machinists, AFL-CIO and Excavating, Grading, Asphalt, Private Scavengers and Auto- mobile Salesroom Garage Attendants Local No. 731, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America. Cases Nos. 13-CA-5095 and 13-CA-5096. April 16, 1963 DECISION AND ORDER On December 28, 1962, Trial Examiner Eugene E. Dixon 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and 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 McCulloch and Members Rodgers and Fanning]. 142 NLRB No. 4.