The Triple AAA Water Co.

THE TRIPLE AAA WATER CO. 803 The Triple AAA Water Co. and Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case No. 21-CA-4994. May 27, 1963 DECISION AND ORDER On February 15, 1963, Trial Examiner Louis S. Penfield issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that Respondent cease and desist there- from as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. A brief in support of the Intermediate Report has been filed by the General Counsel. 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 Rodgers, Fanning, and Brown]. 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board hereby adopts as its Order the Recommended Order of the Trial Examiner .2 1 For the reasons stated in his dissenting opinion in 1818 Plumbing if Heating Co., 138 NLRB 716, Member Rodgers would not award interest on backpay 2 Appendix A attached to the Intermediate Report Is amended by inserting the follow- ing note below the signature line at the bottom of the notice: 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 This proceeding with all the parties represented was heard before Trial Examiner Louis S. Penfield in Los Angeles, California, on December 19 and 20, 1962, on a complaint and amendment to complaint of the General Counsel and answer of The Triple AAA Water Co., herein called the Respondent .' The issues litigated were whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , herein called the Act. 1 The complaint and amendment to complaint issued November 19 and December 3, 1962, respectively , are based on a charge filed with the Board on September 26, 1962 Copies of the complaint , amendment thereto, and charge have been duly served upon the Respondent. 142 NLRB No. 94. 712-548-64-vol. 142-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, including consideration of briefs filed by the parties, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, with its principal office in Brawley, Cali- fornia, engages in pumping, bottling, distilling, selling, and distributing potable water. During the period between November 1, 1961, and October 31, 1962, Respondent sold water and other goods valued in excess of $50,000 directly to customers located at points outside the State of California. During the same period Respondent's total sales amounted to approximately $542,060. Approximately 85 percent of this amount was sales to householders; 14 percent sales to commercial and industrial users; and 1 percent sales to retail establishments for resale. The record establishes that Respondent operates on enterprise in which it engages in both retail and non- retail activities. In such cases it is present Board policy to assert jurisdiction if the business meets retail or nonretail standards.2 Since the Respondent here meets both retail and nonretail standards,3 I find that it is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement Respondent has its general headquarters in Brawley, California, where the water it sells is pumped out of the ground. It distributes its products through four operat- ing divisions, only one of which, the Long Beach-Los Angeles division, is involved in this proceeding. The division office and plant are located in Long Beach, Cali- fornia. At the time of the incidents which concern us, the division employees in- cluded one plant man and nine employees variously referred to in the record as driver-salesmen or route-salesmen. The plant man bottles the water and each of the driver-salesmen drives a truck which he loads with bottles of water, coolers, and cups to make deliveries to customers on his assigned route. It is the duty of each driver-salesman to meet the needs of all the customers on his route as well as to solicit new customers in his territory. Each route covers approximately 50 miles and each driver will service all the customers on his route every 2 weeks. The plant is in direct charge of Plant Manager Jack Myers, assisted by Route Supervisor Lou Duenweg. Myers and Duenweg spend most of their time at the plant, but sometimes ride with the drivers for training purposes or to help them work out route problems. Each day the driver-salesmen report to the plant at approximately 7 a.m. and each loads his truck with water and other items. Prior to the departure of each a check is made of the items taken out and the value thereof is entered on a slip. At the end of the day the value of the items brought back is noted on the same slip and the balance purports to show the amounts sold and delivered during the course of the day. These slips are mailed to the Brawley office, where all the accounting is done and most records are kept. They are thereafter used as a control to check against the driver-salesman's daily reports. During each day the drivers make their deliveries, sales, and collections, noting the cash or credit amounts on a route book. Upon returning to the plant each turns in the cash collected and makes a daily report, showing all cash or credit sales. Each month Myers adds up the amounts shown in the daily report for each driver, and the totals are sent to Brawley to be checked against the control slips previously mentioned. About 4 days later a report is received from Brawley as to whether or not the accounts balance. A shortage will exist for a driver when there is less money shown on the totals of his daily reports than the control says there should be; an overage, when there is more money shown on the totals of his daily reports than the control indicates. 2 Man Products, Inc., 128 NLRB 546; Appliance Supply Company, 127 NLRB 319 Carolina Supplies and Cement Co., 122 NLRB 88; Siemons Mailing Service, 122 NLRB 81. THE TRIPLE AAA WATER CO. 805 No union or concerted activity of significance took place among the employees of the Respondent until September 20, 1962. On that date it is undisputed that several of the driver-salesmen fell to discussing working conditions at breakfast and agreed that they would have a meeting that evening at the home of driver-salesman Don Turner to discuss what, if any, action would be appropriate to working out certain problems concerning their working conditions. During the day, driver- salesmen Don Turner and Allen Wood communicated with the Union and arranged for it to send representatives to Turner's house that evening. The meeting at Turner's house took place, as scheduled, with all the driver- salesmen but Charles A. Chamberlain present. Representatives from the Union attended the meeting. Various problems were discussed including what, if any- thing, the Union could do for the driver-salesmen. Before the meeting concluded, it is undisputed that each driver-salesman present signed a union designation card. Thereafter, a course of events, which will be outlined below, took place culminating in the discharge of Dale Rollins on September 25, 1962. The issues in this case center on whether or not the Respondent had knowledge of its driver-salesmen's efforts at self-organization, whether if such knowledge existed it thereupon embarked upon a course of unlawful intimidation, surveillance, interrogation, and other con- duct calculated to persuade the employees to abandon the Union, and, finally, whether or not the discharge of Rollins was unlawfully motivated. B. The meetings of September 20, 21, and 22 and the Respondent's alleged unlawful conduct in relation thereto 4 As set forth above all the driver-salesmen but one met on Thursday evening, September 20, at the home of Don Turner to discuss among themselves and with union representatives problems relating to their working conditions with the re- sult that each signed a union designation card. After the meeting had commenced and only a short time before his own arrival, driver-salesman Robert Wood tele- phoned the Brawley office and talked to a Mr. Walker, the comptroller of the Re- spondent, telling Walker that "there was a deal going on between the boys"; that "the boys were just getting together." Later, but while the meeting was still in progress, Myers drove by Turner's house, observed that "some of the boys' cars were there," but did not go in. Approximately 15 minutes later Myers telephoned Turner and asked him if he "was getting [his] reporting done right." Turner replied that he was, and Myers then asked Turner if the employees were having a meeting at his house. This telephone conversation was carried on in the presence of the assembled driver-salesmen who were told at the outset that it was Myers calling, and who overheard Turner's end of the conversation. Turner replied to Myers that it was "just a friendly meeting among the fellows and had nothing to do with union activities." When the call was completed Turner expressed to the others the fear that he might lose his job because of holding the meeting at his house and all the drivers agreed that it would be advisable to keep silent about it .5 ' The findings concerning these meetings are based primarily on the credited testimony of driver-salesmen Lester Banes and Dale Rollins and certain admissions of Division Manager Myers. Both Banes and Rollins testified fully and consistently with regard to the events at each of the meetings. Driver-salesmen Don Turner, Robert Wood, Charles A Chamberlain, and John Clemens each gave testimony concerning certain aspects of these meetings Each of these witnesses is still working for the Respondent and each testified with obvious reluctance, appearing to have a conveniently forgetful memory, generally to favor the Respondent, and to hold an attitude toward the proceeding which is best ex- pressed by Clemens who stated that, "He did not want anything more to do with it." Nevertheless, their testimony is corroborative of that of Banes and Rollins in certain material aspects. The affidavit of John Clemens was received in evidence for the purpose of neutralizing prior contradictory testimony after be had demonstrated hostility. Noth- ing contained therein is relied upon in making any of the findings herein. I have con- sidered the fact that I did not have an opportunity to observe the demeanor of driver- salesman Allen Wood whose deposition was received in evidence. The deposition shows no material inconsistencies with the testimony of other credited witnesses but its effect at the most is cumulative. I therefore find it unnecessary to consider it in making any of the findings herein. 5 Despite Myers' denial that he had asked Turner about the meeting and Turner's initial testimony to the same effect, I find the facts regarding this telephone conversation to be substantially as related above. Turner at first denied that Myers had asked him about a meeting, but later he admitted that he had given a statement to a field examiner affirming the fact of Myers' Inquiry. He testified that he "guessed" the statement was true at the 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following morning, Friday, September 21, when the drivers had loaded their trucks and were prepared to depart on their routes, Myers called them all into his office and told them that he knew about the meeting the night before; that he wanted to know what it was about; that "they shouldn't have gone behind his back for it"; that "things were running smoothly and he did not want to see things dis- rupted"; and that "[if] they had any problems to come to him with them." Myers then proceeded to ask each driver if he had anything to say, and receiving no replies the men departed, each going out on his respective route. During the course of the same day Robert Wood decided "to try to get the boys together" and he invited all the driver-salesmen to attend another meeting at his house the following evening for the purpose, as he stated it, of trying "to work out the boys in another way, instead of them jumping into something they didn't know nothing about before." Two other driver-salesmen invited Myers to attend this meeting. The meeting at Wood's house took place on Saturday, September 22, with all the drivers but Chamberlain present as well as Myers and Duenweg. All the driver- salesmen participated in the discussion in some measure, but Rollins acted as a principal spokesman for the men and played a major role in carrying on an extended discussion with Myers concerning the Union and the various grievances and prob- lems of the driver-salesmen. The meeting opened in an atmosphere of some tension There was ill feeling between some of the drivers because of the presence of Myers and Duenweg, since they had agreed Thursday not to discuss the Union with the Company, and Rollins announced at the outset that he was sorry the supervisors had been invited to the meeting since union activity on the employees' own time was their own business. Myers replied that this was a matter of opinion. Myers was asked how he knew of the Thursday night meeting at Turner's home, and he replied that he had received a phone call from Brawley telling him about it Turner stated that his neighbors had reported to him that they had seen Myers neat his house the night before looking in the windows. Myers admitted that he had been in the neighborhood at that time but denied looking in the windows. Myers then asked who had taken it upon himself to go to the Union, and was advised that it had been driver-salesmen Allen Wood and Don Turner. Discussion ensued of existing grievances and of the pros and cons of having a union to rectify them. Myers expressed the view that insofar as problems existed things could be worked out without bringing in a union. As the discussion developed it appeared that a principal grievance centered around the Respondent's policy of requiring work every Saturday. Myers suggested a vote among the employees as to their wishes, and when a majority voted that they desired to have every other Saturday off Myers promised that he would undertake to get this practice put into effect. Rollins ex- pressed some doubt at the time as to Myers' ability to get the change accomplished, and expressed the view that a union was needed "to insure that these things were carried out." At some time during the course of the meeting Rollins expressed the fear that his job might be in jeopardy because of his role as the spokesman. Myers assured Rollins and the rest of the employees that "everything would be forgiven" and that Respondent would "let bygones be bygones." The meeting broke up with nothing more being specifically resolved. Respondent denies knowledge of the organizational purpose of the Thursday night meeting, asserts that the Friday morning meeting was no more than a routine sales meeting with no happenings out of the ordinary, and apparently is claiming that the Saturday night meeting at Wood's house was no more than a friendly gathering of employees to which Myers and Duenweg had been invited and at which nothing concerning the Union had even been mentioned or discussed. Respondent's claim that it had no knowledge of the meeting at Turner's house on Thursday evening must be rejected. Wood's testimony that he telephoned a com- pany officer about the meeting is undisputed. Myers admits driving past Turner's house that evening accompanied by Supervisor Duenweg, seeing "some of the boys' cars," and not going in. Myers seeks to explain this visit by saying that he went there intending to discuss some reports with Turner. He does not explain the nature of these reports, or why they required a visit to an employee's home by the two top division supervisors on that, or any other, evening. On the contrary time, but he sought to dilute the effect of this admission by a generalized claim that he had been drinking when he gave it Finally, under further questioning, Turner admitted that Myers had asked him if the employees were having a meeting and that he had told Myers that they were. This is consistent with the testimony of those who overheard his end of the conversation and I find that the inquiry was made. THE TRIPLE AAA WATER CO. 807 his characterization of their subject matter as "some book work or routine work" would seem to connote that they had neither great significance nor great urgency. This improbable explanation, however, becomes even more implausible when Myers goes on to testify that after refraining from going in after seeing "the boys' cars" he forthwith proceeded to the plant and not 15 minutes later telephoned Turner ostensibly about the same work. I find that the Respondent's direct knowledge obtained from Wood considered with the implausibility of Myers' explanation, as well as his later conduct at the Friday and Satuiday meetings, as set forth above, make it more reasonable to conclude that not only had Myers been informed of the meeting at Turner's house and its purpose, but that he drove past Turner's house to see who was there and what he could find out, and finally, that he tele- phoned Turner, using the reports as a pretext, with a real purpose of letting the employees know, through Turner, that he was aware of their activities. Nor can I credit Myers' assertion that the Friday morning meeting was just a routine sales meeting, and that he could recall nothing different about it. Regular sales meetings took place on Mondays, and Myers offers no explanation for calling a meeting on this particular Friday without advance notice. This, when considered in conjunction with the credited testimony of the driver-salesmen, as more fully set out above, justifies a conclusion that Myers called the Friday meeting with an object of informing the employees that he knew of their union meeting of the night before, of interrogating them concerning it, and finally of letting them know that they should have come to him, not the Union, about their problems. I find that Myers interfered with, restrained, and coerced employees in the ex- ercise of their Section 7 rights in violation of Section 8(a)(1) of the Act by (1) his acts of surveillance in driving past Turner's home on Thursday evening and later telephoning Turner; (2) interrogating Turner Thursday and the employees Friday morning about their union activities; and (3) further creating the impression of surveillance on Friday by remarking to the assembled driver-salesmen that he knew all about the union activity the night before.6 It is against this background of surveillance and intimidation that the Saturday meeting took place. It seems clear that Wood would never have arranged the meeting had Myers not indicated on Friday that the employees might do better by coming to him, and that Myers' invitation to attend was prompted by the belief that this would be the most effective way to find out. Myers would have us be- lieve that the union and the organizational activities of the employees were not even mentioned at the Saturday meeting. This is refuted not only by Banes and Rollins, whose versions I have credited, but even by Driver-Salesman Clemens whose reluctance bordered on hostility but who testified, nevertheless, that Myers and every- one else talked about the Union. Contrary to Myers it appears, and I find, that the very purpose of the meeting was to discuss the union activities that had taken place and to ascertain what, if anything, the company could offer. Even if it be conceded that there was no impropriety, in and of itself, in Myers' attendance at the meeting, I further find that he used the occasion as a forum both to interrogate the employees as to their activity in calling in the Union and to undermine the need for a union by meeting the employees' principal grievance with his promise to get them every other Saturday off. This conduct was clearly calculated to induce employees to abandon the Union as a medium for rectifying their grievances, and I find that by engaging in it that the Respondent has interfered with, restrained, and coerced the employees in violation of Section 8 (a) (1) of the Act? C. The discharge of Dale Rollins Dale Rollins was first employed by the Respondent as a driver-salesman on May 31, 1962. Driver-salesmen are paid on the basis of a minimum guarantee plus commissions. Respondent's practice with respect to newly hired driver- salesmen is to employ them initially at a $400-per month minimum guarantee, to have them undergo an initial training period of about 4 weeks learning the routes accompanied by supervisors or more experienced drivers, to raise the minimum at 0 Georgia-Pacific Corporation, 132 NLRB 612. 'A motion by the General Counsel to strike paragraph numbered 6 (f) of the complaint because no proof had been adduced was granted at the hearing. In paragraph numbered 6(g) of the complaint the General Counsel alleges a violation of Section 8(a) (1) by Respondent's demand for a copy of an employee's statement to the Board given in the course of the investigation . In view of scope of the remedy that I am recommending, I find it unnecessary to make findings with respect to the paragraph numbered 6(g) of the allegation 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the end of this time to $450 when the route is assumed by the driver alone, and finally at the end of 6 months to raise the minimum to $500 assuming that the driver-salesman has shown satisfactory performance. Although Respondent has no formal announced probationary program it appears that the Respondent treats the first 6 months as a period of probation and watches the performance of new em- ployees closely during this time. In accordance with this practice Rollins started at the usual $400, received his initial training, and was raised to $450 when he assumed his own route. No or- ganizational efforts were under way among the driver-salesmen at the time when he was first employed. When working their routes, drivers are sometimes ques- tioned as to whether the employer is union and Rollins had been told by the Re- spondent to be evasive if such questions arose, but if pressed to tell customers that "there was something in the mill about unions." In July about 11/2 months after Rollins was employed, Myers rode with him for a period to work out some re- routing problems. While Myers was riding with Rollins the subject of unions came up for discussion. Myers expressed to Rollins his intense dislike for unions and his strong opposition toward one representing the Respondent's employees. Rollins told Myers that he had been a member of the United Steelworkers for 3 years but that he had grown unhappy about it feeling that a union curbed initiative and that a union was of no benefit where it was not needed. In August, Myers had complimented Rollins on making well above his guarantee saying, "It was unusual for a person who had been with the company a short amount of time to have made that kind of money." In August, Rollins was the No 2 man in the division, in sales, and his route showed a percentage well above that shown for the same routes during the preceding year. In addition, he had been complimented several times at sales meetings by Company President Soderstrom. On Tuesday morning, September 25, Rollins reported for work as usual, loaded his truck, and was about to take it out when Myers came to him and said that he was letting him go. At the time Myers remarked, "You came in late this morning these routes have to grow and they cannot grow with you running them." Rollins followed Myers to his office and asked him if he was being fired for union activity. Myers' only reply was, "No, you were late." Three days later Rollins returned to the plant office to get his last check and again talked with Myers. At that time Myers showed him a copy of a letter which he had received from Brawley. Rollins recalls this letter as saying, in substance, that Respondent was sorry to have to let him go but that "with his audits and shortages as we had discussed last month it was inevitable." The General Counsel urges that Rollins' role as the Union's most articulate spokes- man, the timing of his discharge, and the background of interference, restraint, and coercion when considered in the light of the employer's allegedly insubstantial and incosistent defenses warrant a conclusion that the discharge was unlawfully motivated. The Respondent offers a variety of explanations for Rollins' termination. It is not disputed that he was summarily discharged without prior warning, and that at the time he was told only that he had been late and that the routes would not grow while he was running them. There is nothing in the record to show how late, if at all, Rollins had been that morning or that he was given to habitual tardiness. On the contrary it appears that it is not infrequent for drivers to report late, that Myers had never issued more than a general admonition against tardiness, that he had never specifically warned Rollins about being late, and finally, according to Myers' own testimony, he would not "dismiss a boy for being late" because he, Myers, often came in late himself. Respondent offered nothing that would show that Rollins' route performance was not good or that his routes were not growing. On the con- trary, as set forth above, it is undisputed that Rollins had been complimented for his sales record. Thus, the only reasons given to Rollins at the time of his dis- charge must be found completely lacking in substance. Indeed, it would appear that the Respondent itself had discarded the tardiness and route growth reasons, since neither in its answer nor at the hearing did it urge either ground as an explanation of the discharge. In its answer Respondent in denying the allegation of discriminatory discharge advances three defenses that it characterizes as "willful neglect of . . . duties" which include • (1) "complete inconsistency in bal- ancing his books" and "continuous shortages and overages of cash . . .; (2) that such inconsistencies resulted in "numerous complaints from customers "; and (3) a seasonal decline in business as a result of which "a reduction of personnel his- torically takes place during September and until May." Since the principal reliance seems to rest on the defense of Rollins' inconsistency in balancing his books, it may be well to dispose of (2) and (3) first. THE TRIPLE AAA WATER CO. 809 Even if it be assumed that Rollins did have inconsistencies in his books which resulted in shortages and overages, the record contains no evidence whatsoever of any customer complaints which occurred prior to the discharge. Myers testified that he could recall complaints from customers about Rollins, but could cite no specific instances, and he testified further that even these unspecified complaints were not received until after Rollins had been terminated. Thus, the alleged defense of "numerous complaints from customers" must be rejected altogether. The Respondent offered no evidence to support its allegation that a seasonal decline in business had a bearing on its decision to discharge Rollins. The busi- ness apparently does undergo some slack after the mid-summer months but there is no evidence of the extent of the decline, whether or not it was sufficient to occasion a layoff, or what, if anything, other years had shown with regard to seasonal layoffs. The record is thus altogether lacking in evidence from which it can be inferred that business conditions justified the layoff of Rollins or anyone else at this particular time. Moreover, although Rollins was not immediately replaced, Myers testified that he did hire another driver-salesman in December. This would tend to refute the allegation that Rollins was discharged as a part of the historical reduction in personnel taking "place during September and until May." There remains the Respondent's claim that it discharged Rollins as an unsatis- factory employee who could not properly keep his books. The Respondent's record- keeping and auditing scheme have been described above. Rollins' first audit took place in July at which time he had a $90 overage. Rollins' next audit was in August at which time he had $150 shortage. Myers told him that this would be in part offset by the $90 overage, but that he should seek to check his records for mathe- matical errors. Rollins did this, found some errors, and reported the matter to Myers who said nothing further. Overages and shortages in varying amounts are a not uncommon phenomenon among driver-salesmen, but the amounts attributed to Rollins in July and August are clearly substantial, and if Rollins is called upon to bear the responsibility therefor, they could serve as a relevant factor in his continued employment. As noted above, however, the record does not disclose Respondent showing undue concern after either the July or August audit, but only a cooperative willingness to help Rollins do better. Myers even suggested the possibility that the errors might not be attributable to Rollins, but at no time does it appear that an attempt was made to check this out. It is not to be presumed that Respondent would lightly bring about the termination of an employee it had trained who was other- wise performing in a satisfactory manner unless it could be demonstrated that his account discrepancies were not only substantial and primarily his own fault, but also that they pointed to a developing pattern which would indicate little chance of im- provement as experience was gained. Respondent failed to produce books or records relating to Rollins or any of the other driver-salesmen which would show either Rollins' responsibility for the discrepancies, or show the extent of his discrepancies as they compared with other probationary or regular employees who had been retained or laid off. This state of the record makes it difficult, if not impossible, to evaluate the July and August figures as a relevant factor relating to the discharge. Of even greater significance, however, is the Respondent's failure to adduce evi- dence concerning Rollins' performance in September. Myers regularly sends in the daily reports for the monthly audits which show the overages and the short- ages on the 20th of the month. For September this was only 5 days before Rollins' discharge. Myers testified that he made the decision to discharge Rollins on Monday, the day before the event, and that he had been influenced, in part, by a telephone call from Brawley about Rollins' bad records. He failed, however, to testify with any degree of certainty about either the time or the substance of this telephone call, and not even a general figure, let alone records of the audit itself, was presented which would show anything about Rollins' recordkeeping for the month subsequent to August 20. When this is coupled with the failure of the Respondent to show the relative significance of, or Rollins' responsibility for, the July and August reports, it becomes highly improbable that report discrepancies were the real cause for the discharge. Since each of the Respondent 's defenses lack real substance it becomes neces- sary to seek elsewhere to ascertain the true motivating factor in Rollins' discharge. Respondents hostility toward the Union and the course of conduct it pursued aimed at getting the employees to abondon it have already been noted above. Although following the Saturday night meeting of September 22, Myers had some reason to believe that his promise to get the employees every other Saturday off might result in their giving up the Union, it was still faced with the prospect of a Board election; and Rollins, at least, and possibly others had made it clear that they felt a union was still needed . Although Myers knew that two other employees had 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first called in union representatives, this does not serve to eliminate Rollins as a reasonable choice if Respondent sought to carry further its already expressed animosity toward the union using the most telling means of all to show that union adherence did not pay. Rollins not only had a known union background but he had demonstrated himself to be the most articulate spokesman for the men at the Saturday night meeting. In addition to this he was a probationary employee whose only two audits gave him a surface vulnerability which would lend an air of plausibility if the choice were challenged. When all these factors are considered against the insubstantial and inconsistent reasons offered by Respondent to justify the discharge, it becomes reasonable to infer that the defenses advanced by Re- spondent were a mere pretext and that the real motivating reason for Rollins dis- charge was his union activity. I therefore find that the Respondent discharged Rollins on September 25 for his membership and activities in, and on behalf of, the Union and that by such discharge Respondent engaged in discrimination within the meaning of Section 8(a)(3) of the Act, and I further find that by such dis- criminatory discharge Respondent also interfered with, restrained, and coerced em- ployees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. The Respondent's unfair labor practices strike at the heart of the rights guaranteed employees by Section 7 of the Act .8 The rights involved are closely related to other rights guaranteed by Section 7. Because of the nature of the unfair labor practices found above, there is reasonable ground to believe that Respondent will infringe upon such other rights in the future unless appropriately restrained. There- fore, in order to make effective the interdependent guarantees of Section 7, I shall recommend an order below which will have the effect of requiring the Respondent to refrain in the future from abridging any of the rights guaranteed employees by Section 7.9 Having found that Respondent has discriminatorily discharged and refused to reinstate Dale Rollins, I will recommend that Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of earnings he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount of wages he would have earned from the date of the discrimination to the date of the offer of reinstatement,10 together with interest thereon at the rate of 6 percent per annum, and that the loss of pay and interest be computed in accord- ance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred. s N.L R B v Entwistle Mfg Co, 320 F 24 532 (C A 4) 6 May Department Stores v. N.L.R B., 326 U.S. 376; Bethlehem Steel Co v N L R B , 120 F. 2d 641 (C.A D.C.). 10 The Respondent urges a cutoff date for backpay based on an alleged waiver of re- instatement by Rollins. Its position is grounded upon the belief that Rollins in a state- ment to the Regional Office had indicated that he would waive reinstatement. Respondent requested production of this statement at the hearing but Its request was denied for the reason that the matter was deemed irrelevant and related only to a matter concerning the internal management of the Regional Office and not to testimony of a witness within the purview of National Labor Relations Board Rules and Regulations, Section 102.118. Respondent does not claim it has ever offered Rollins reinstatement or that it has acted in any prejudicial manner In reliance upon any purported waiver Absent some evidence of a bona fide offer of reinstatement by Respondent, no earlier cutoff date is appropriate even if a waiver representation to the Regional Office be assumed THE TRIPLE AAA WATER CO. 811 Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, The Triple AAA Water Co., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Dale Rollins on September 25, 1962, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has en- gaged 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 affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, The Triple AAA Water Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization of its employees, by discharging or in any other manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment except as authorized in Section 8 (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing its 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, or to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Dale Rollins immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Make Dale Rollins whole in the manner and in accordance with the method set forth in section V, above, entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to an analysis of the amount of backpay due. (d) Post at its usual place of business, copies of the attached notice marked "Appendix A." ii Copies of said notice, to be furnished by the Regional Director for the Twenty,first Region of the National Labor Relations Board, shall, after being signed by the Respondent, be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. n In the event that this Recommended Order Is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the additional event that the Board 's Order Is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order" 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the receipt by the Respondent of a copy of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply therewith.12 It is further recommended that unless on or before 20 days from the date of its receipt of this Intermediate Report and Recommended Order the Respondent notify the Regional Director that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 12 In the event that this Recommended Order be adopted by the Board, paragraph num- bered 2(e) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." APPENDIX A 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Chauffeurs, Sales Drivers & Helpers, Local 752, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation of its employees, by discharging or in any other manner discriminating against any individual in regard to his hire or tenure of employment or any term or condtion of employment, except as authorized in Section 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named Union or any other labor organi- zation, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL offer to Dale Rollins immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. THE TRIPLE AAA WATER Co., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 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, 849 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex- tension 1031, if they have any questions concerning this notice or compliance with its provisions. Dubo Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Cases Nos. 8-CA-9700 and 8-CA-2820. May 27, 1963 DECISION AND ORDER On August 28, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that 142 NLRB No. 91.