The Lawson Milk Co.

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, furnish to Upholsterers ' International Union of North America, AFL-CIO, information and data pertaining to the wages paid to the employees in the appropriate unit and such other information as may be relevant to collective bargaining. COMFORT SPRINGS CORPORATION, Employer. Dated- ------------------ By------------- ----------------------- (Representative ) (Title) 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. Plaza 2-8460, Extension 2104, if they have any question concerning this notice or compliance with its provisions. The Lawson Milk Company and George Bulick. Case No. 8-C-4- 2933. July 30, 1963 DECISION AND ORDER On March 26, 1963, Trial Examiner Jerry B. Stone issued his In- termediate 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 Intermediate Report. He also found that the Respondent had not engaged in cer- tain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. 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 Interme- diate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner with the following modifications and additions : The Trial Examiner found that the Respondent violated Section 8(a) (1) and we agree with this conclusion. We rely on the fact that the Respondent, by Personnel Manager Spaethe, interrogated em- ployee Bulick about his attitude toward unions when he was hired in May 1962, and warned him not to discuss unionism after he was employed. We also rely on the fact that Respondent, without assur- I The Trial Examiner's findings are based In part upon his resolutions of conflicting testimony We reject as Insufficiently supported the Respondent's exceptions thereto. On the record , we find no basis for concluding that the Trial Examiner's credibility resolu- tions are clearly erroneous . See Standard Dry Wall Products , Inc., 91 NLRB 544, 545. 143 NLRB No. 100. THE LAWSON MILK COMPANY 917 ing applicants for employment that their hiring would not be en- dangered or that they were under no obligation to reply, used some employment application forms which asked whether the applicants had ever been union members or officers. We note, moreover, that the conduct complained of occurred against a background of other unfair labor practices by Respondent, as found in a recent case 2 In these circumstances we conclude that the questions on the employment ap- plication forms concerning union membership and union offices tended to have a coercive impact, since the timing and circumstances were such as reasonably to impress on employees that Respondent viewed union membership and activities as bearing materially on an applicant's suitability for employment. Accordingly, we agree with the Trial Examiner's finding that the Respondent violated Section 8(a) (1) of the Act. ORDER Upon the entire record, in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Lawson Milk Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating applicants for employment or employees, orally or in writing, regarding their union membership, activities, or sym- pathies, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor 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 and 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 employ- ment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in its plant at Akron, Ohio, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- Y The Lawson Milk Company, 136 NLRB 538 , enfd. in part 317 F. 2d 756 See also Schott Metal Products Company, 128 NLRB 415, 430. ' In the event this Order is enforced by a decree of a United States Court of Appeals. there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " 918 DECISIONS Or NATIONAL LABOR RELATIONS BOARD secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by,any other material. (b) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY ruI:TIIER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent violated Section 8(a) (1) and (3) of the Act by dischargi-lg employee George Bulick on about September 30, 1962. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relation Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate applicants for employment or em- ployees, orally or in writing, regarding their union membership, activities, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. THE LAWSON MILK COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) 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, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concern- ing this notice or compliance with its provisions. THE LAWSON MILK COMPANY 919 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by George Bulick, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued his complaint dated December 16, 1962, against The Lawson Milk Company, herein called the Respondent. The complaint alleges, in substance, that Respondent engaged in and was engaging in conduct proscribed by Section 8(a) (1) and (3) of the National Labor Relations Act, herein called the Act, and that such conduct affected and was affecting commerce within the meaning of Section 2(6) and (7) of the Act. In its answer, Respondent denies all of the alleged unfair labor practices although it admits certain facts. Pursuant to due notice, a hearing was held before Trial Examiner Jerry B. Stone, at Akron, Ohio, on January 23, 1963. All parties were represented at and participated in the hearing, and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs. Oral argument was made by the General Counsel and Respondent's counsel filed a brief. The oral argument and brief have been considered. Upon the entire record in this case, and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made. FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER As established by the pleadings, it is found that Respondent is a division of Con- solidated Foods Corporation, a Maryland corporation, and is engaged in the business of selling and distributing dairy products and bakery goods at retail in the State of Ohio. Annually it sells goods and bakery products valued in excess of $500,000 and receives products valued in excess of $50,000 from outside the State of Ohio. It is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and in connection with Respondent's activities hereinafter de- scribed that it will effectuate the policies of the Act to assert jurisdiction over the Respondent. II. THE LABOR ORGANIZATIONS INVOLVED The pleadings establish and it is found that United Steelworkers of America, AFL-CIO, Local Union No. 3191, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 497, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The principal issues are (1) whether the Respondent engaged in oral or written interrogation of employees concerning their union membership, activities, or desires in violation of Section 8(a) (1) of the Act, and (2) whether the Respondent, in viola- tion of Section 8 (a) (1) and (3) of the Act, discriminatorily discharged George Bulick. Supervisory Status of Robert Spaethe The General Counsel's complaint alleges and the Respondent's answer denies that Robert Spaethe, personnel manager of Respondent, is a supervisor within the meaning of the Act. Spaethe credibly testified that: he was responsible for interviewing and recommend- ing people for hire; he was responsible to some degree in administering company em- ployee policy; he interpreted company policy; he assisted in making recommendations for changes and additions to company policy; personnel records were kept under his supervision (including application forms, employee or applicant tests administered by the Company, records of attendance, records of rate changes, job changes and transfers, disciplinary memos, records of wage garnishments, and other records con- sidered by Spaethe to be valuable as personnel records); he possessed authority to reject and had rejected applicants for employment; he participated in the hiring of employees; he effectively recommended the hiring of employees based on his inter- view; along with the pertinent department head he determined the job for which individuals were qualified; and he had granted time off to office employees. Spaethe credibly testified that: as to the hiring of applicants he was always one of the persons who participated in the hiring; there were always two persons who ap- proved the employment; in the case of store managers the persons were he and a 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man from the sales department; in the case of plant-production employees the persons were he and the department head; in the case of office people he, the office manager, and controller of the Company approved the hiring; as to salaried (higher level) jobs, the approving persons might be the executive vice president, the president, and himself. Spaethe credibly testified that the Company's rule was that mutual agree- ment between himself and the others (set forth above) was necessary before the applicant was hired. Dolphin R. Mackenroth, Respondent's vice president in charge of Industrial Rela- tions, credibly testified that: Spaethe made the original evaluation of employees, particularly the new employees (applicants); Spaethe determined the employees' job after consultation with Mackenroth; Spaethe checked on the applications (if a check were made); and in certain areas the weight given to Spaethe's evaluation would be very high, and his screening capacity (as to applicants) was evaluated highly. In regard to the discharge of Bulick it is clear that the investigation of the reasons for Bulick's discharge was made by Spaethe, and that no independent investigation was made by other officials. Upon the foregoing credited facts, I conclude and find that Spaethe is a supervisor within the meaning of Section 2(11) of the Act. George Bulick-Employment at Akron Equipment and Tallwood Estates, His Industrial Accident 1 During the year 1960, George Bulick worked at Akron Equipment Company and for Tallwood Estates. It is clear from Bulick's credited testimony that his principal income and major working time was in connection with his employment at Akron Equipment Company. While employed at Akron Equipment Company, Bulick was a member of United Steelworkers of America, AFL-CIO, Local Union No. 3191. Although at one time, while there, an unsuccessful candidate for local union president, Bulick never held office in the Union. He did, however, serve as a grievance com- mitteeman. Sometime in 1960, Bulick was injured at his job at Akron Equipment Company. As a result of the injury, Bulick was unable to work for a period of time. Bulick en- gaged the services of Attorney Michael J. Pavick and later received an award from the Industrial Commission of Ohio, in 1961, pursuant to a finding that he (Bulick) has a 30-percent partial disability.2 Bulick returned to work at Akron Equipment Company in the latter part of 1960, and worked until around November 1960. He did not work after his injury for Tall- wood Estates inasmuch as the latter went out of business Around November 1960, there was a labor strike at Akron Equipment Company, and Bulick, who did not work because of the strike, but who was not engaged in the strike, was not called back to work but was told that he was laid off work at the end of the strike. Bulick attempted to secure work elsewhere, but except for minor jobs (such as window washing) was unsuccessful. Believing that his industrial accident injury at Akron Equipment Company was the reason for his failure to secure a job, Bulick decided that he would not mention said job or accident in his next attempt to secure a job. Bulick's Application for Employment at Lawson Milk Company The Application Form 3 Bulick first contacted the Respondent Company around the first of April 1962. He completed an application form at that time containing blanks for the listing of prior employment, for prior industrial accidents, concerning union membership, offices held in unions, and other information. Except for the blanks pertaining to union membership, offices held therein, the other blanks on the application form would appear to be those for completion that might be expected on an application form and there is no issue involved herein as to their legality within the meaning of the National Labor Relations Act. 1 The facts pertaining to Bulick's employment at Akron Equipment Company, at Tall- wood Estates, to his union activity, industrial accident, and search for work are based on his credited uncontradicted testimony. 2 Connected with his claim filed as a result of his injury. 3 The Respondent utilized two different application forms One form contained certain questions and blanks pertaining to prior union membership and to offices held in the Union. The other application form did not contain said union questions The facts per- taining to Bulick's application are based primarily on his credited testimony, which in the main , is not contradicted THE LAWSON MILK COMPANY 921 The Application for Employment Forms 4 Prior to 1957 or 1958, the Respondent had used as its employee application form, a form which did not contain questions and blanks relating to prior union member- ship or to offices held in the Union. Mackenroth, Respondent's vice president, had around that time instructed Per- sonnel Manager Spiegel (predecessor to Personnel Manager Spaethe) to make a study of personnel application forms. Aided by an employment service, the Respondent selected a form from many used by other companies. This form is the principal appli- cation form used by Respondent and contains certain questions relating to prior union membership and to offices held. The form was revised after the passage of the Ohio Civil Rights Act of 1959, by the addition of a note in the top left hand corner (set forth later on in this report). Mackenroth testified that the questions relating to the Union were on the form by accident, that the questions were on the form selected and that if the Respondent had wanted the union questions, that it would have discontinued all of the forms not con- taining the union questions, that the union questions had never influenced anyone in making a decision, and if it did that the advantage would have been for those who had union membership. Mackenroth testified on cross-examination that the union questions were an indication of employee capacity and leadership, and that these indi- cations helped in evaluation of a man's rating. Mackenroth testified that the Respondent had used both the application form with union questions and the one without union questions, that Respondent had not been too consistent in the use of the forms, that the instructions were to use the new forms containing union questions, if available, and if not, to use the older forms, not containing union questions. Mackenroth testified that as to store managers the Respondent "pretty well" required the new forms, containing union questions. Mackenroth further testified to the effect that the union issue was of "no importance whatever" in terms of whether a person was hired or not, that the questions had now been deleted, and would not be reprinted. Mackenroth testified that the Respondent had not used that information for a long time if ever used, and that the information had not been used specifically. Spaethe testified that both application forms had been used (around June or July 1962) prior to 6 months before the hearing, that the forms used "just happened" to be the one given out by the receptionist. Spaethe testified that he had then in- structed the receptionist and the girls in the office to use the new forms for plant applicants and for all store manager applications, so that the Company would have more information and so that administratively the forms would be easier to review and file. Spaethe testified that the application form (without union questions) was used for the store clerk applicants. The application form (with union question) contained printed instructions to "please answer all questions, if possible." The same form also contains a note in the top left-hand corner (added in 1959) stating "in areas where fair employment practice laws are in effect it is not necessary to furnish information regarding race, religion, nationality, place of birth or any other information contrary to law." By this note the applicant is not advised as to whether fair employment practice laws are in effect in the State of Ohio, or as to what other information is contrary to law. A reasonable interpretation of the same by an applicant would restrict the note to fair employment practice laws. In the instant case, however, Respondent's inten- tions as to this note is revealed by the fact that Spaethe completed at the time of the interview, or at the time of hiring, on Bulick's application forms the answers to blanks pertaining to religious preference, and nationality. These added notations are contrary to the note (removing necessity for certain information) and would indicate that the note was not adhered to, or did not apply to Ohio. Thus Personnel Manager Spaethe's testimony reveals that the Respondent intended the application form (with union questions) to be utilized for plant employee applicants. His completion of various blanks on Bulick's application form reveals an intent that such forms, when used, be completed. In view of Spaethe's and Mackenroth's various statements to the alleged reasons for the use of the application forms (with union questions), I find that the Respondent did not have a valid reason for the use of the union questions on its application form. 4 The facts as to the application for employment forms are primarily based on a com- posite of the credited testimony of Spaethe and Mackenroth except as otherwise indicated I do not credit Spaethe's or Mackenroth's testimony to the effect that the application forms were used on a happenstance basis, or that Respondent's Exhibits Nos. 6 and 7 reveal a pattern in support thereof of happenstance usage or to reveal that employees were not required to answer the union questions 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus the alleged reasons were (1) by accident and (2) as an indication of leadership- The form was selected after a survey of application forms, and the union questions thereon constituted new questions not contained on Respondent's prior form. Ini view of Respondent's contradictory reasons-(1) accident and (2) indicia of leader- ship-I cannot accept or credit that the inclusion of the union questions on the form was by accident. Nor can I accept or credit Respondent's alleged reason that the union questions were for indication of leadership. Mackenroth, also stated, that the union questions had no bearing on the hiring or rejection of an applicant.5 It is clear from Spaethe's instructions that the utilization of the form was not by chance. In summary the Respondent advances no valid reason for the utilization of the union questions. It thus appears that the Respondent utilized the application form (with the union questions)6 in the processing of 543 applicants between April 8, 1962, to November 16, 1962. There was no printed matter on the form to advise the ap- plicants that the union questions were for use in a manner not constituting inter- ference, restraint, or coercion within the meaning of the Act, nor is there evidence that the applicants were advised orally to that effect.? I conclude and find that by the use of the application forms (with the union questions), without a valid rea- son 8 for such union questions, and under the circumstances described, that Re- spondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. Interrogation of Bulick; 9 Employment of Bulick After Bulick's application, there passed a period of time during which another applicant was selected for employment for the job for which Bulick was being con- 5 The Respondent did not explain how a question of union membership could reveal leadership. The application form contained both questions as to membership, and as to the holding of office. The application form did not contain questions as to membership in other civic, patriotic, or fraternal organizations or as to offices held therein E The questions and blanks were: Were you ever a Hold union member? Yes fl No q Office? Yes 0 No F1 Contrary to Respondent's apparent contention, I do not find Respondent's Exhibits Nos. 6 and 7 to reveal that Respondent did not substantially utilize the employee application form with union questions, or require the completion thereof by plant employees. Con- sidering Mackenroth's and Spaethe's credited testimony as to the use of the application forms with union questions, the fact that the Respondent's Exhibits Nos. 6 and 7 cover only some 621 applications out of approximately 1,000, the fact that Respondent's Ex- hibits Nos. 6 and 7 cover applications up to November 16 (when Respondent had ceased the utilization of the union questions around November 5), and the apparent difference in Respondent's view as to temporary employees, I am convinced, so conclude, and find that the Respondent substantially utilized the forms with the union questions for its plant employees during the 10(b) period, and required the completion of said union questions. 7 This is not to be construed that written or oral advice in conclusionary language as set out herein would constitute circumstances from which the applicants would feel free in the exercise of their Section 7 rights 8The instant facts are unlike the situation in Parkhurst Manufacturing Company, Inc, 136 NLRB 872, wherein the company membership questions were to elecit information on qualifications of applicants as to tradesmen or trade unions. My findings are not based upon the Board's previous finding of illegal interrogation, and illegal discriminatory dis- charging of an employee in The Lawson Milk Company, 136 NLRB 538, although the latter would support my findings 8 The facts connected with Bulick's employment, and Spaethe's Interrogation of Bulick are based on a composite of Spaethe's and Bulick's credited testimony Spaethe testified at first to the effect that he did not recall talking to Bulick about the Union, later he testified that he recalled some conversation relating to questions by Bulick about the Union wherein he stated that the Company did not have a union and, because of its rela- tionship with the employees, did not think it needed a union. Spaethe denied asking Bulick what he thought about the Union. Although Bulick was evasive as to the time of his meetings with the National Labor Relations Board agents, had deliberately omitted his prior employment on his employment application, had falsely completed his job application form as to industrial accident, and discredibly attempted to explain the omission of his prior employment, I find his testimony to this event more credible than Spaethe's. Spaethe's testimony concerning his conversation with Attorney Pavick reveals that he did' discuss the Bulick application form and the question relating to union offices held, whereas his affidavit to the Board agent sets forth that he in no way discussed unionism. THE LAWSON MILK COMPANY 923 •sidered. On or about May 14, 1962, Personnel Manager Spaethe called Bulick aconcerning an opening . Spaethe went to see Bulick on May 14, 1962. Bulick credibly testified that during the discussion that he had with Spaethe, that Spaethe told him that Respondent had no union , and did not want a union, and when he was hired that he should not discuss anything concerning unionism. Spaethe asked Bulick what he thought about the Union , and Bulick expressed his opinion. Considering the foregoing in the light of Respondent's activities connected with the application for employment , set out in a foregoing section, I conclude and find that Respondent violated Section 8(a)(1) of the Act by Spaethe's .interrogation of Bulick. Bulick was then hired as a temporary employee. He worked until August 6, 1962, and was then made a permanent employee. He thereafter worked until he was discharged on September 30, 1962. During Bulick's tenure of employment the International Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America, Local Union No. 497, filed a petition in June 1962 , concerning a question of representation and an election was held on August 11, 1962. The Union lost the election 10 Although Bulick was one ,of the employees in the voting unit, there is no evidence of any activity on his part with reference to the Teamsters or to the election. Knowledge of Bulick's Former Employment and Industrial Accident Shortly before September 30, 1962, Bruce W. Bierce, Respondent's attorney related to Spaethe that C. R. Quine, president of Akron Equipment Company, had stated that Respondent had a man (Bulick) employed who had been involved in an industrial accident. Personnel Manager Spaethe then contacted Quine and inquired about the matter. Quine related to Spaethe that Bulick had been involved in an industrial .accident, that Bulick had been a troublemaker, and that Bulick had held office in the Union." Spaethe then discussed Bulick's employment and the Quine conversation with Vice President Mackenroth. Spaethe recommended that Bulick be discharged.12 Bulick's Discharge On Sunday, September 30, 1962, Spaethe asked Bulick to come to Supervisor James Murphy's office. Bulick went to Murphy's office where he saw Spaethe and Murphy. Spaethe had Bulick's job application form in his hand. Spaethe asked Bulick if he had worked at Akron Equipment Company. Bulick stated that he had. Spaethe asked Bulick if he had had an industrial accident at Akron Equipment Company. Bulick stated that he had. Spaethe then asked why Bulick had not listed Akron Equipment Company as a prior employer and had not listed the indusutrial accident. Bulick replied as to Akron Equipment Company that the form only asked for one, that there was not enough room, that he needed the job, and that he was afraid the Respondent would not consider hiring him. Bulick stated that he did not list the industrial accident since he had not listed Akron Equipment Company, and that he had previously told his doctor and priest that he had not been able to get a job when he was honest-and that he was going to exaggerate a little because his family was in need and he needed the job. Somewhere in the conversation Spaethe pointed to the application form blanks relating to union office held, and stated that Bulick had not answered that blank correctly. Furthermore the Respondent's utilization of the application forms with the union ques- tions, without valid reason, and under the circumstances set forth in this report, and after the Respondent was clearly on notice of the potential illegality of inquiring of em- ployees concerning the Union (by virtue of the proceeding in The Lawson Milk Company, -supra, wherein the complaint dated September 22, 1961, alleged illegal interrogation of employees with reference to union activities or desires , the Intermediate Report of Decem- ber 13, 1961, found a violation thereof, and the Board Decision of March 26, 1962, found a violation thereof), coupled with Spaethe's testimony relating to the cessation of the use of the union questions on the forms until determined by the Board, reveals a pro- pensity for illegal interrogation. Based on the foregoing and the demeanor of both Spaethe and Bulick as they testified to this event, I find Bulick's version more credible, and so credit 10 Stipulated to by the parties "Based on Spaethe's credited testimony 12 Although Spaethe's testimony was to the effect that he imagined he recommended the discharge, it is obvious from his and Mackenroth's entire testimony that Mackenroth knew that Spaethe thought Bulick should be discharged 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spaethe told Bulick that because of the falsification of the application and the in- dustrial accident that it was necessary to terminate his employment . Spaethe further told Bulick that there were no complaints about his deportment, discipline, or at- tendance at work, but it was a matter of company practice and policy. Spaethe and Bulick then discussed arrangements concerning Bulick 's paycheck. Bulick stated that he probably would get in touch with his attorney , and made reference to the Labor Relations Board.13 Bulick Contacts Attorney Pavick Several days later Bulick telephoned Attorney Pavick, who had represented him as to his Akron Equipment Company industrial claim, and told Pavick that he had just been fired by The Lawson Milk Company and did not understand why he was fired. Bulick stated that he wanted Pavick to determine why he had been fired, that the Respondent would not give him a definite reason for his firing. Pavick told Bulick that he could not represent him in this type of matter, but that he would call the Respondent and try to find out for him. Pavick told Bulick that he was not a specialist in this type of labor-management relations and could not represent him 14 The Pavick-Spaethe Conversation Pavick several hours later called the Respondent Company and asked to speak to Spaethe. After Spaethe identified himself, Pavick stated that he was Attorney Mike Pavick, that he had a client that he represented on industrial cases, and that this man had been working for the Respondent. Pavick asked if Spaethe knew Bulick and Spaethe replied that he did. Pavick told Spaethe that there were some doubts in Bulick's mind as to the reason of his discharge. Spaethe told Pavick that Bulick had been discharged for falsification of his employment application. Pavick told Spaethe of Bulick's family problems and asked if the Respondent would consider taking Bulick back, and mentioned the possibility of obtaining a certificate for handicapped em- ployees. Spaethe told Pavick that under no circumstances would the Respondent con- sider taking Bulick back. Pavick quesitioned Spaethe as to Bulick's job performance or difficulties. Spaethe stated in effect that there were no complaints whatsoever about Buluick's job per- formance, and no complaints by Bulick as to his physical condition. Pavick asked about the falsifications on the employment application and whether the industrial accident were the reason. Spaethe stated "probably so," that Bulick had not told the Respondent where he had worked for 5 years, and had indicated that he had not had an industrial accident. Spaethe stated that he had called Quine (president of Akron Equipment Company) and the latter had been familiar with Bulick's industrial accident. Spaethe stated that Quine had not given Bulick a good recommendation. Spaethe then told Pavick that there were other matters of mis- represenation, that the application form contained a question as to whether or not Bulick was a union officer, and Bulick had said that he was not. Spaethe stated that the Respondent had checked with Bulick's other employer and felt that this was a misrepresentation. Spaethe and Pavick concluded the conversation. Pavick then called Bulick and summarized his recollection and interpretation of the con- versation, and subsequently Bulick filed the instant charge on October 8, 1962.15 Concluding Analysis as to Bulick's Discharge The General Counsel in his oral argument took the position that Respondent had knowledge of Bulick's prior union activity (at Akron Equipment Company) and that Spaethe informed Pavick that Bulick was discharged for his prior union activities. The facts reveal that Respondent did have knowledge of Bulick's prior union ac- tivities at the time of his discharge but do not reveal that Personnel Manager Spaethe told Attorney Pavick that Bulick was discharged because of his prior union activities. The issue as to whether Bulick was discriminatorily discharged is not restricted to whether Spaethe so stated to Pavick that the Respondent discharged Bulick because of his prior union activity. 13 Based an a composite of the credited testimony of Spaethe, Bulick, and Murphy, 14 Based on a composite of Pavick's and Bulick's credited testimony. lc Based on a composite of the credited testimony of Spaethe and Pavick. In regard to the testimony of Spaethe and Pavick as to the emphasis on certain reasons I find Spaethe's testimony to be more logical, complete, and consistent with the facts of the case especially with the reasons advanced to Bulick by Spaethe I so credit Spaetbe's testimony THE LAWSON MILK COMPANY 925 It is clear that Respondent had knowledge that Akron Equipment Company con- sidered him a troublemaker, and that Respondent had reason to believe that Bulick had held a union office while at Akron Equipment Company, and that there were no complaints of Bulick's work received (May 14 to September 30, 1962). The Re- spondent has in the past discriminated in the reemployment of an employee because of the employee's being an active proponent of a union.ls In the instant case the Respondent has clearly indicated to Bulick its opposition to unionism, and has en- gaged in illegal interrogation of employees as to their activities and desires. Thus there clearly exists the basis for a possible inference that the Respondent could be illegally motivated in the discharge of an employee, known to have engaged in prior union activities. The determination of Respondent's motivating reason for Bulick's discharge requires the consideration of the foregoing possible inference, and of such other evidence as might reveal motivation. Spaethe, after learning of Bulick's prior employment at Akron Equipment Com- pany and his industrial accident while employed at Akron Equipment Company, reported the same to Mackenroth. It is obvious that Respondent had reason to believe that Bulick had been a troublemaker and a union officer at Akron Equipment Company. However, Mackenroth credibly testified that when Spaethe spoke to him about Bulick before the discharge of Bulick, that the matter was such an obvious violation of company rules that the result was that Bulick should be dismissed. Mackenroth credibly testified that the Respondent's rule was that "anyone who falsi- fies information on an application and exposes the company to large sums of money, loss in this instance, it could be industrial commission claims, exposure of other employees, anything involving that is clearly a reason for discharge." Mackenroth also credibly testified that this was understood by all officers and supervisors in the company administering policy. Thus Mackenroth's credited testimony reveals that he based his decision to dis- charge Bulick on the ground that Bulick had falsified his application for employment and exposed the Respondent to possible damages (both monetary and including risk to other employees). Mackenroth credibly testified that he personally had had a bad back for 30 years and that he knew what happened as a result of back injuries Whether Mackenroth was right or wrong (as a matter of medical diagnosis) in the instant case in his evaluation is not material, but his motivating reason for having Bulick discharged is material. Under all the circumstances of this case I am convinced that the Respondent was motivated in its discharge of Bulick because of his falsification of his employment application as to matters which the Respondent though exposed it to monetary dam- ages. This is revealed by the fact that Spaethe clearly told Bulick at the time of Bulick's discharge of the failure to list Akron Equipment Company, and of Bulick's listing that he had not had an industrial accident. It is clear that the reference to the union questions was only incidental as is revealed by Spaethe, Murphy, and Bulick not recalling the matter in their testimony as to the discharge incident, and Spaethe's only recalling it obliqely while testifying to another matter. If the Respond- ent were illegally motivated and had discharged Bulick on the pretext of his falsifica- tion as to prior employment and as to the industrial accident, it does not appear logical that Spaethe would have referred to the union questions at all, either to Bulick or to Pavick. I am thus convinced that the Respondent discharged Bulick for the falsification of his employment application as to prior employment and as to his industrial accident because Respondent believed that his employment subjected it to certain financial risks. I so find and conclude. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE 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. 16 See The Lawson Milk Company, supra, wherein the Board found In essence illegal Interrogation concerning employees' union activities, illegal discriminatory failure to re- call to work an employee because said employee was an active union proponent. Illegal promises of benefits and threats of discharge to deter union support, and illegal domina- tion, support, and interference with an employee committee existing for the purposes of alleged collective bargaining 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since Respondent's activities impede or hinder the self-organization of its em- ployees and since the Respondent has expressed its hostility to such self-organization at various times in the past 17 and as the possibility of future similar type violations exists, it shall be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, Local Union No. 3191, is a labor organization within the meaning of Section 2(5) of the Act. 2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America, Local Union No. 497 , herein called the Teamsters, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. By interfering with , restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) 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. 6. The Respondent has not violated Section 8(a)(1) and (3) of the Act by its discharge of George Bulick. [Recommended order omitted from publication.] 17 The Lawson Milk Company, supra. General Electric Company and International Union of Electrical Radio and Machine Workers, AFL-CIO. Case No. 9-CA-.667. July 30, 1963 DECISION AND ORDER On January 28, 1963, Trial Examiner Phil W. Saunders issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent, the General Counsel, and the Charging Party filed ex- ceptions to the Intermediate Report and supporting briefs. Pursuant to Section 3 (b) of the National Labor Relations Act, the Board, has delegated its powers herein to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The ruling are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Ex- aminer, but not his recommendation that an order issue. 143 NLRB No. 103.