Sidles Co.

SIDLES COMPANY 457 Sidles Company and Ronald King. Case No. 17-CA- 655. De- cember 30,1965 DECISION AND ORDER On October 13, 1965, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged, and recommended dismissal of those allegations. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent also filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modification indicated below.' [The Board adopted the Trial Examiner's Recommended Order with the following modification : Substitute the following for para- graph 2 (a) : ["Offer to Ronald King immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination practiced against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discharge to the date of Respondent's offer to reinstatement, less his net earnings during such period, with backpay and interest i The Trial Examiner, in his section entitled "The Remedy", inadvertently provided for the payment of backpay to run from the date of Respondent's offer of reinstatement rather than from the date of discharge . This error is significant only because it is in- corporated by reference into paragraph 2(a) of the Recommended Order , and we correct it by revising that paragraph. 156 NLRB No. 52. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Comnpany, 90 NLRB 289, and Isis Plumbing d Heating Co., In.c.,138 NLRB 716."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges and amended charges filed on April 5 and May 24, 1965, by Ronald King, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17 (Kansas City, Missouri), issued his complaint, dated May 27, 1965, against Sidles Company, herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substances, that: (1) Respondent discharged two-named employees because of their union and concerted activities; (2) certain named agents and representatives of Respondent engaged in specified acts of interference, restraint, and coercion; and (3) by the foregoing con- duct, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. In its duly filed answer Respondent denies, generally, all unfair labor practice allegations. Pursuant to notice, a hearing was held before Trial Examiner Louis Libbin at Omaha, Nebraska, on July 8, 1965. All parties appeared and were given full oppor- tunity to participate in the hearing. Respondent's motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is hereby granted in part and denied in part in accordance with the findings and conclusions hereinafter detailed. On August 9, 1965, the General Counsel and the Respondent filed briefs, which I have fully considered.' For the reasons hereinafter indicated, I find that Respondent violated Section 8(a)(1) and (3) of the Act only in certain respects. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Sidles Company, a Nebraska corporation, maintains a plant in Council Bluffs, Iowa, where it is engaged in the wholesale distribution of automotive parts. Respondent annually sells automotive parts, valued in excess of $50,000, which are shipped from its Council Bluffs plant directly to points outside the State of Iowa. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find, that United Automotive, Appliance and Conditioned Air Employees' Association is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Respondent maintains a store at Omaha, Nebraska, where its main office is located, and another store at Council Bluffs, Iowa, about 8 miles from the Omaha store. The employees at the Omaha store are represented by an unaffiliated union known as United Automotive, Appliance and Conditioned Air Employees' Association, herein called the Union. The employees at the Council Bluffs store are not represented by any union. Ronald King had been employed by Respondent at the Omaha store from August 1959 until March 1962, when he was transferred to the Council Bluffs store. While employed at the Omaha store, King was a member of the Union. During the first X On August 16, 1965, Respondent filed a motion before Trial Examiner for permission to file exceptions to brief of counsel for General Counsel. On August 18, 1965, the Gen- eral Counsel filed an opposition to said motion and a motion to strike Respondent's ex- ceptions. The exceptions submitted by Respondent together with Its motion is in the nature of a reply brief to the General Counsel's brief. As the Board's Rules and Regu- lations, Series 8, as amended , make no provisions for the submission of reply briefs, I hereby grant the General Counsel's motion to strike Respondent's exceptions. SIDLES COMPANY 459 half of March 1965, King attempted to establish the Union as the representative of the hourly paid employees at the Council Bluffs store. On March 16, Frvin Nye, Respondent's secretary-treasurer, addressed the assembled employees at the Council Bluffs store on the subject of having a union as their representative to deal with Respondent on wages, hours, and working conditions. At the close of the meeting, Respondent distributed to the assembled employees a booklet containing excerpts of testimony adduced in a prior Board proceeding. On March 25, Respondent's Branch Manager Palmer spoke to the assembled employees at the Council Bluffs store con- cerning their complaints and problems. King's employment was terminated on March 29, 1965. On Monday, April 12, Dennis Fox, another employee at the Coun- cil Bluff's store, gave Respondent 1 week's notice of his intention to quit to accept another job the following Monday. The next morning, Tuesday, April 13, Fox was discharged by Palmer, without being permitted to serve out the rest of that week. The principal issues litigated in this proceeding are whether (1) King and Fox were terminated by Respondent because of their union and/or concerted activities, and (2) Respondent engaged in acts of interference, restraint, and coercion by the distribution of the pamphlet on March 16 and by statements of Nye and Palmer to the assembled employees. A subsidiary issue is whether Duane Jasa, Respondent's field sales supervisor, is a supervisor within the meaning of the Act. B. Sequence of events 2 1. King's unsuccessful efforts to obtain a wage increase At the Council Bluffs store where King was transferred in March 1962, he first worked as a counter salesman and in June 1964 was also given a 2-day per week outside sales territory. In January 1965, King asked Branch Manager Palmer for a raise in pay. Palmer replied that Council Bluffs was one of the highest paid branches in the organization, but promised to see what he could do about it. Sometime in February, King, accompanied by Ralph Liddell who was employed at the Council Bluffs store as a truckdriver, again spoke to Palmer and renewed the request for a wage increase. Palmer replied that he had just received the personnel records and had not yet had time to go through them to see what he could do. Palmer reiterated that Council Bluffs was one of the highest paid branches in the organization. 2. King's efforts to establish the Union at Council Bluffs As previously noted, the Union was the recognized bargaining agent for the hourly paid employees at the Omaha store, and King had been a member of the Union when he worked at that store. When Palmer made no response to his requests for a wage increase, and believing that the wages and fringe benefits were higher at the Omaha store and that it would take a union to get some type of action in these respects, King contacted Norris Bailey, the president of the Union at the Omaha store. About March 8, while King was at the Omaha warehouse for some parts, he asked Bailey what the Union had done for the employees at Omaha. After Bailey's response, King asked whether it would be possible for the Council Bluffs employees to become mem- bers of the Union. Bailey replied that they could be as far as he knew but that he would have to check with the other officers and members to see whether they wanted them. Thereafter, King contacted and spoke to each of the nine hourly paid employees at Council Bluffs about joining the Union to see if they could get a raise and other fringe benefits. He showed them a slip of paper containing a schedule of the wages and fringe benefits at the Omaha store under the union contract. A comparison with those at Council Bluffs indicated that Omaha had higher wages and a few more bene- fits. Each employee expressed desire to join the Union. On March 10, King telephoned to Bailey and stated that 100 percent of the hourly paid employees were interested in joining the Union. Arrangements were made for further discussions on the matter. 3. Respondent becomes aware of organizational efforts; Secretary-Treasurer Nye's speech On March 16, all nine hourly paid employees were assembled in the office of Ben- jamin, Respondent's branch store supervisor. Present on behalf of Respondent were Benjamin, Secretary-Treasurer Nye, Personnel Manager Suder, and Branch Manager Palmer. Nye then delivered a speech which he read to the employees. 2 Unless otherwise indicated , the findings in this section are based on credited testi- mony and evidence which is either admitted or undenied. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He began by explaining that "the reasons for this get together is that we have become aware of efforts being made by a union to interest you folks in having them represent you in your dealings with company management." Nye then assured the employees that they had a right to join a union and that the Company would not treat them any differently. He then stated that they "have probably all been approached by this time" to sign a card and that, if they have "hesitated," they "may also have been told that no one will ever know whether you have signed a card or not." Nye empha- sized that "like the song says, it ain't necessarily so." He then explained that "we're going to give you a copy of a pamphlet which reproduces excerpts of the court record at a hearing held less than six months ago, fairly near here, which will illustrate what I mean." Nye then stated that a union makes wild promises in which you cannot put much store and that automotive employees at nonunion locations have obtained the same and better benefits than those at union locations He pointed out that Respond- ent belongs to several organizations which make annual surveys of the wages, hours, and working conditions of businesses in the area, that the results of these surveys helps Respondent to "keep abreast" of its competition in the labor market, and that Respondent has been successful in retaining its employees. He emphasized that the employees did not need an outsider to handle their contacts with management con- cerning wages, hours, and working conditions; assured them that Palmer and Ben- jamin were both interested in them and their "well being"; and pointed out as "a definite fact that hourly rates at this location are among the highest in the company." He closed his speech by stating that he did not believe they would be "silly enough to contribute dues to some organization that simply makes promises it may not be able to fulfill," and expressed the "guess" that they will refuse to sign a union card and that they would "vote for individual freedom" rather than for "union representation" if it should ever come to vote. Nye then asked if any of the employees "would discuss some other subject." King was the only employee in the group of nine who spoke up. King stated that he person- ally did not feel that he had been treated fairly about wage increases and that the entire group was concerned and dissatisfied with Respondent's policy regarding wage increases. Nye replied that Palmer would be more than happy to talk to the employ- ees about their problems. The meeting then adjourned. 4. Respondent distributes pamphlet Upon adjournment of the meeting, Palmer, at Nye's request, distributed to the employees a copy of the pamphlet to which Nye had referred in the first part of his speech. On the cover of the pamphlet, there appears in five lines of large letters covering the first half of the page the following: "WHO SAID 'NO ONE WILL EVER KNOW IF YOU SIGN A UNION CARD' FAMOUS WORDS!!" Next to these words and covering about three-fourths of the page is a large question mark. In the middle of the lower half of the cover, the following appears in an area of 3 by 3 inches bordered by a heavy black line: INSIDE THE COVERS OF THIS BOOKLET YOU WILL SEE COMPLETE REPRODUCED PAGES OF OFFICIAL COURT REPORTER TESTIMONY WHERE UNION CARD SIGNERS WERE BEING QUESTIONED ABOUT SIGNING UNION CARDS At the bottom there then appears a line in big bold letters, stating "SEE-READ FOR YOURSELF." The last two lines on the cover are as follows: IT SOMETIMES PAYS NOT TO BELIEVE ALL THE STUFF UNION ORGANIZERS TELL YOU The pamphlet consists of about 20 pages of selected excerpts from testimony adduced at a Board hearing on November 17, 1964. Underlined in heavy black type are the questions and answers of employees relating to their having signed union authorization cards, to identifying their signatures on such cards, to having returned the signed cards to the union solicitors, and to the fact that they have not changed their affiliation since that date. With respect to the excerpts of the testimony of the first two witnesses appearing on the first and fourth pages of the pamphlet (Evelyn E. Lienhart and Alvina Swanson), there is also underlined in heavy black type the ques- tions and answers which show that the witness is no longer employed by the company involved. SIDLES COMPANY 461 After the distribution of the above pamphlets, King asked Branch Store Supervisor Benjamin one day if he had read the pamphlet. When Benjamin replied in the affirma- tive, King then asked what Benjamin "got out of it." Benjamin replied that it was just "the way it was stated in there, if you join a union, the company knows about it?" 3 5. Palmer's speech to assembled employees On March 24, 1965, King attended a dealer's break shoe clinic at the Omaha plant and took the occasion to ask Palmer when he was coming over to talk to the Council Bluffs' employees about their problems. Palmer replied that he would be over the following day. The next day Palmer did address the Council Bluffs' hourly paid employees who were assembled again in Benjamin's office. All but the two girls were in attendance. Although Palmer had been branch manager of the Council Bluffs store since Jan- uary 1, 1965, this was the first time that he had spoken to the Council Bluffs' employ- ees in a group about their "gripes" or problems. Palmer stated that he had come over to see what the problems were and what he could do about taking care of them. King was the first one to speak up, stating that "bur main concern was again wages, raises and advances, and just what we had to do to achieve higher goals." Palmer pointed out that he also was looking for a raise but did not think he was going to get it. King expressed the hope that Palmer would get his raise, and added that "I would also like to have mine and probably first." Palmer asked King if he would take a full-time sales territory outside the State. King replied that he did not want a territory which was not a lucrative one. Palmer assured King that any territory that would be given to him would have ample sales potential. Other employees then voiced their dissatisfaction. Mathews stated that in the past he felt that he had been overlooked so far as promotions were concerned. Palmer replied that that was in the past and that they were now talking about the present and the future. Fox complained about his wages, stating that when he was first employed he was told he would receive a pay increase after 3 months. Palmer again stated that that was in the past, that he had nothing to do with the past promises, and that he wanted to talk about the present and the future. Employee Coulter com- plained that he was still doing the same thing for 16 years, and employee Liddell stated that he would like to see the counter commission abolished and a profit- sharing plan introduced whereby each individual would be judged as one man and not as a group so far as pay was concerned. Palmer told the employees to note that on their last paycheck they were not docked for days on which they were absent or sick. He admittedly pointed out that it had been his policy at other stores at which he had been manager and that it would be "the policy of the company of the Council Bluffs branch in the future" not to dock employees when they took time off "because of sickness that wasn't a delayed, long period of time, a day or half day, or if they had to go to the dentist or barber shop." 6. King's employment termination About 8 a.m. on Monday, March 29, 1965, Benjamin told King that Palmer wanted to see him at the Omaha store immediately. King thereupon went to the Omaha plant and saw Palmer in the latter's office. Palmer stated that he had decided that it would be to their mutual interest to come to "a parting of the ways." When King asked if that meant that he was no longer working for Respondent, Palmer replied "that's right." Palmer explained that King seemed to be unhappy, that he seemed to make people around him unhappy, and that their relationship should be severed "before anything developed that caused problems." King replied that "I possibly should have quit, but I have never been fired before." Palmer promised that King would receive severance pay and a recommendation to assist him in getting another job.4 8 The findings in this paragraph are based on the credited testimony of King. Ben- jamin admitted that King had asked if he had read the pamphlet and wanted to know what it was all about. He testified that he had told King that he had not read the pamphlet. He admitted, however, that he also told King that he had glanced at it and that "it had to do with union activities." I do not credit Benjamin's testimony to the extent that it conflicts with that of King. ' The findings in his paragraph are based on a composite of the mutually consistent testimony of King and Palmer. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. Field Sales Supervisor Jasa's statements to King On April 1, 1965, King went to the Omaha plant to pick up his check, and in the hallway met Duane Jasa, Respondent's field sales supervisor. Jasa said "hello" to King, and expressed his regret that King was no longer working for Respondent. Jasa explained that he was present at the company meeting when the "union problem" was discussed and that, although he had put in "some good words" for King, never- theless Vice President Fred Sidles stated at that meeting that he would not have a union in Council Bluffs. Jasa then added that King had been "pushing the Union too hard." 8. Nye questions Bailey about King's unfair labor practice charge King filed an unfair labor practice charge with the Board's Regional Office on April 5, 1965. Shortly thereafter, Norris Bailey, the president of the Union at the Omaha store, was summoned to Personnel Manager Suder's office. There, Respond- ent Secretary-Treasurer Nye handed Bailey a letter from the National Labor Rela- tions Board relating to King's charge, and asking Bailey what he knew about it. Bailey replied that he knew "nothing whatsoever." Nye stated that the reason King was terminated was because "he seemed discontented" and was "causing discontent and dissension among the other employees at the Council Bluffs store." 9. The discharge of Dennis Fox Fox was employed by Respondent at the Council Bluffs store for about 9 months prior to his discharge. About 3:30 p.m. on Monday, April 12, 1965, Fox told Branch Store Supervisor Benjamin that he had another job and was going to end his employment with Respondent on Friday, April 16. When Benjamin said that Fox was giving short notice, Fox replied that he knew about "somebody else who got shorter notice." Fox then left the office. Benjamin telephoned Palmer and informed him of Fox's resignation. Palmer asked to speak to Fox if he was still there. Benjamin thereupon called Fox back into the office and said that Palmer wanted to talk to him on the telephone. The following telephone conversation, in substance, then occurred between Fox and Palmer: In response to Palmer's query as to what was the matter, Fox stated that he was not satisfied with the wages. Palmer asked if Fox would give him a 2-week notice because he needed someone to replace him. Fox refused, stating that he was leaving on Friday because he had already committed himself to report the following Monday on the other job. Fox added that "I know somebody else that got a shorter notice," mentioning Ron King. Palmer replied that there was a mutual agreement that King "depart the company." When Fox demurred that "that is not the way I heard it," Palmer retorted that "no matter which way you heard it that was a mutual agreement." Palmer then wished Fox good luck on his new job and hung up.5 Palmer immediately telephoned one of the countermen in South Omaha and obtained his agreement to go to the Council Bluffs store at 8 o'clock the next mom- ing. Palmer then telephoned Benjamin and instructed him that, since Fox had resigned, he was to mform Fox when he came to work the next morning that he was no longer needed. At 7:55 a.m. on Tuesday, April 13, shortly before Fox was to begin work, he was told by Benjamin to go home because he was no longer needed. C. Interference, restraint, or coercion 1. The distribution of the pamphlets Respondent's message in the pamphlets was unqualifiedly to the effect that signed union cards would not be kept secret or confidential, despite a union's promise, and that the signers would probably become known to Respondent. That this was the intended meaning of the pamphlet was made clear by Benjamin's explanation that "if you join a union, the company knows about it." The record shows that at the time of the distribution of this pamphlet, no demand had been made upon Respondent for representation of the Council Bluffs employees, and no representation petition had been filed with the Board. Nor is their any evidence that the Union or any union solicitor or representative had made any such representations of secrecy or confidentiality to these employees. Moreover, the 5 The findings in this paragraph are based on Fox's credited testimony which is not inconsistent with that of Palmer. SIDLES COMPANY 463 reproduced excerpts were not entirely authentic because the emphasized questions and answers were not in fact underlined in the original record. Furthermore, Respond- ent was not entirely candid in failing to explain that the excerpts were from a refusal- to-bargain proceeding in which the General Counsel had to establish a card majority as part of his case; for, a union could keep a promise of secrecy where authorization cards are used solely to support a petition for a representation election, as the Board will not show such cards to the employer. And there is nothing in the record to indicate that the Union would not follow the latter course in this case. Respondent thus raised a straw man which it then proceeded to knock down in this manner by generating employee fears where none was shown to have existed before. I am convinced and find that, in the setting and circumstances in which the pamphlet was distributed, it was further reasonably calculated to convey to the employees a threat of possible reprisals by Respondent against known card signers, which was not neutralized by Nye's earlier assurances in his speech. Thus, Nye's recitation of the better wages and treatment Respondent had accorded the employees without a union indicated what an employee might lose (in whole or in part) once Respondent had learned that he had signed a card. In addition, Respondent's underlining of the testimony of the first two witnesses in the pamphlet that they had signed union cards and were no longer working for the Employer, indicated the supreme penalty which an employee might pay. Such a finding of the threat of possible reprisals is buttressed by the absence of any reasonable explanation for Respondent's message in the pam- phlet that signed cards would not be kept secret or confidential and that the signer would probably become known to Respondent. Certainly, it was not motivated by any desire to correct misstatements by the Union or its representatives; for, as previously noted, no such representations of secrecy or confidentiality had been made to the Council Bulffs employees. When Branch Manager Palmer was asked if he could explain the purpose of passing out the pamphlets, he testified, "No. I can't explain to you the purpose of passing out the pamphlet. I was asked to pass the pamphlet out [by Mr. Nye] and I passed it out." Finally, the correctness of this finding is verified by Respondent's conduct in discharging Ronald King because of his known union and concerted activities, as hereinafter found. And, contrary to Respondent's assertion in its brief, Section 8(c) of the Act is no defense to this type of conducts I find that by the distribution of the pamphlet to its employees on March 16, 1965, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act.7 2. Promises and announcements of benefits At the March 25 meeting of the assembled Council Bluffs employees, called by Palmer to see what he could do about taking care of their problems, Palmer listened to the employees' "gripes" and complaints about their wages and working conditions, pointed out that that was all in the past, and promised that things would be different in the future. He also called their attention to the fact that their last paycheck showed no docking for absences due to sickness of for other minor absences; pointed out that that had been his policy at the other stores which he had managed; and promised that it would continue to be the policy at "the Council Bluffs branch in the future." Although Palmer had been manager of the Council Bluffs store since Jan- uary 1, 1965, this was the first time that he had assembled the employees in a group to listen to their complaints and grievances. This meeting was obviously sparked by the complaints voiced by employee King at the meeting of March 16, called by Nye admittedly because he became aware of the organizational efforts of the Council Bluffs employees. Moreover, although employees at Council Bluffs had been docked for absences due to illness and other minor absences before Palmer was their man- ager and although Palmer began following the practice of not docking employees for such absences from the time when he first became manager of Council Bluffs, it was not until this meeting that he made any general announcement to the employees of his policy in this respect and his intention to continue it in the future. 8 As one court so aptly stated, "Congress has recognized employer rights of free speech, but has sought to limit them when they verge upon the use of employer economic power to coerce employees not to organize." N.L.R.B. v. Montgomery Ward & Co., Inc., 339 F. 2d 889, 892 (C.A.6). 7 Hobart Brothers Company, 150 NLRB 956. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under all the circumstances, I find that Palmer's promises of different treatment in the future and his announcement that he had been following a policy of not docking for absences due to sickness and for other minor absences and would continue to fol- low this policy in the future, were made for the purpose of inducing the employees not to sign union authorization cards nor to vote for a bargaining representative. I further find that Respondent thereby violated Section 8(a)(1) of the Act because such conduct was reasonably calculated to impinge on the employees' freedom of choice in the selection of a bargaining representatives D. Discrimination in hire and tenure of employment 1. Ronald King As previously noted, when King was unsuccessful in obtaining a wage increase by his own individual efforts, he decided that it would be necessary to get a union in the plant in order to get some action from Respondent. To this end, he contacted the president of the Union at the Omaha store, then spoke to all the nine hourly paid employees at the Omaha store about joining the Union in order to get a raise, and pointed out the higher wages and better benefits enjoyed by the employees at the Omaha store where the Union was the established bargaining agent. As a result of his efforts, all the hourly employees expressed a desire to join the Union, and King con- veyed these results to the union president at the Omaha store. The very next week, on March 16, Secretary-Treasurer Nye addressed the nine hourly paid employees at the Council Bluffs store and, in the presence of other officials of Respondent, pointed out why they should not designate a union as their representative to deal with Respond- ent on wages, hours, and working conditions, all as previously found. At the end of his speech, King was the only employee who responded and spoke up both for himself personally and also on behalf of the entire group, voicing dissatisfaction with Respondent's policy on wage increases. When Nye promised that Branch Manager Palmer would talk to them about their problems, it was King who kept after Palmer to hold such a meeting. And at the employee meeting called by Palmer on March 25, King was the first employee to speak up, again voicing the concern of the entire group over Respondent's policy on wages, raises, and advancements. King's employment was severed 4 days later. The above is a summary of King's union and concerted activities prior to his employment severance. The record warrants the conclusion that Respondent's repre- sentatives were aware of these activities. Nye admitted that his reason for addressing the assembled employees of Council Bluffs on March 16 was because he had become aware of efforts being made to interest them in having a union represent them in their dealings with management. Palmer admitted that Nye had also relayed this informa- tion to him the preceding day. Since King was the only employee engaging in these reported efforts and since all his efforts occurred shortly before this meeting and were concentrated on such a small group of employees, I am convinced and find that Nye and other representatives of Respondent had also become aware that it was King who was stirring the employees up on this subject matter. Any possible doubts in this regard are completely removed by Palmer's statement to King at the time of his employment severance that King seemed to be "unhappy" and seemed to make the people around him "unhappy," by Field Sales Supervisor Jasa's statement to King, after the latter's employment severance, that King had been "pushing the Union too hard" and that at a management meeting attended by Jasa where the "union problem" was discussed Vice President Sidle had stated that he would not have a union at Council Bluffs, and by Nye's undenied statement to Union President Bailey, after learning that King had filed an unfair labor practice charge, that King was "causing discontent and dissension among the other employees at the Council Bluffs store." Contrary to assertions of Respondent's council, I find that King did not voluntarily agree to leave Respondent's employ but was in fact discharged by Palmer on March 29, as previously found. There is no partciular formula or choice of words required for effecting a termination. Without any prior warning or notice, it was Palmer who summoned King to his office and summarily informed him of his (Palmer's) decision that they should come to "a parting of the ways." Then, in response to King's ques- tion, Palmer agreed that by that he meant that King was no longer working for Respondent. King's employment separation under these circumstances can hardly be termed voluntary. Were any further contrary evidence needed, it is readily available in Field Supervisor Jasa's statement that he had put in. "some. good words" for King. 8 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. SIDLES COMPANY 465 at the management meeting where Vice President Sidle stated he would not have a union in Council Bluffs, and in Nye's undisputed statement to Union President Bailey as to the reason for King's termination, all as previously found. Equally clear in the record is the reason for Respondent's termination of King. Palmer bluntly told King that it was because he seemed to be "unhappy" and seemed to make the "people around him unhappy" and that this action was necessary "before anything developed that caused problems." The only respects in which King had displayed his "unhappiness" was when he sought a wage increase and spoke up on this subject matter on behalf of himself and the group of Council Bluffs employees, expressing their dissatisfaction and concern over Respondent's policies on raises and advancements. And the only respects in which King seemed to make the other employees around him "unhappy" was when he stirred them up to agree to join a union and also openly to voice their dissatisfaction with Respondent's policy on wages, raises, and advancements. By the foregoing conduct, King was engaging with his fellow employees in a concerted activity for their mutual aid and protection, conduct specifically protected by Section 7 of the Act. Moreover, when Field Sales Supervisor Jasa voiced his regret that King was no longer working for Respondent, Jasa pointed out that King had been "pushing the Union too hard," that Jasa had put in "some good words" for King at the management meeting where the "union problem" was dis- cussed, and that Vice President Sidle had stated at that meeting that he would not have a union in Council Bluffs. Finally, there is the undenied statement of Secretary- Treasurer Nye to Union President Bailey, after learning that King had filed his unfair labor practice charge, that King was terminated because "he seemed discontented" and was "causing discontent and dissension among the other employees at the Council Bluffs store." I have already pointed out the only respects in which King had dis- closed his "discontent" and had caused "discontent and dissension" among the other Counsel Bluffs employees. Upon consideration of all the foregoing and the entire record as a whole, I find that Respondent discharged King because of his protected union and concerted activi- ties.9 By such conduct, Respondent discriminated with respect to the hire and tenure of employment of Ronald King and thereby discourage membership in the Union in violation of Section 8 (a) (1) and (3) of the Act. 2. Dennis Fox It is the General Counsel's position that Fox's discharge on April 13, 1965, was unlawful because, in the telephone conversation with Palmer on the preceding after- noon, Fox had expressed his disapproval of Respondent's treatment of King and the Respondent therefore decided to rid itself of one of King's sympathizers. I do not agree. On Monday afternoon, April 12, Fox informed Store Supervisor Benjamin that he was quitting at the end of that week to accept other employment. In the ensuing telephone conversation that same afternoon, Palmer told Fox that he was giving them a short notice and urged him to give the customary 2 weeks' notice in order to enable Palmer to have time to obtain a replacement. Fox refused, and sarcastically referred to King having received even less notice. I am convinced and find that Palmer was nettled by Fox's failure and refusal to give the customary 2 weeks' notice and, upon being able to obtain an immediate replace- ment who agreed to report to Council Bluffs the next morning, instructed Benjamin 9 There is no merit to Respondent's contention that Jasa was not a supervisor within the meaning of the Act. In Respondent's monthly publication for November 24, 1964, there appears a picture of Jasa, together with the announcement of his appointment as "Field Sales Supervisor" to "develop our sales force." Roy Miller, Jasa's immediate superior testified that, in the performance of Jasa's responsibilities in training field salesmen, Jasa fills out a sales training form on which he records his "judgment" of the work habits, appearance, and work performance of the salesmen being trained by him. Miller further testified that he reviews these forms with Jasa and takes Jasa's recom- mendations into account in determining what action, if any, should be recommended to the branch manager to whom the particular salesman is assigned. According to the un- denied and credited testimony of King, on one occasion Jasa accompanied King in his work as a field salesman, stated that he was "well pleased" with the work King had been doing, and asked if King would be interested in taking another day or two for some additional accounts which seemed to have been overlooked. I am convinced and find that Jasa possessed the authority which constitutes him a supervisor within the meaning of Section 2(11) of the Act. Moreover, even without relying on the statements of Jasa, I would still reach the same conclusions with respect to King's discharge and the reason therefor. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to inform Fox that he was no longer needed when he reported for work the next morning. This Benjamin did . I find that Fox's discharge was not discriminatorily motivated in violation of the Act and will accordingly recommend dismissal of this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the operations of Respondent 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 engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent violated the Act by discharging Ronald King on March 29, 1965, I will recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earn- ings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of Respondent 's offer of reinstatement , less his net earnings during such period , with backpay and interest thereon to be computed in the manner pre- scribed by the Board in F. W. Woolworth Company , 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because of the character and scope of the unfair labor practices herein found, I will recommend that, in order to effectuate the policies of the Act , Respondent cease and desist from in any other manner interfering with, restraining , and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act.10 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Automobile , Appliance and Conditioned Air Employees' Association is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating with respect to the hire and tenure of employment of Ronald King, thereby discouraging membership in the above -named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. 3. By the foregoing conduct and by the conduct detailed in section III, C, supra, Respondent has interfered with , restrained, and coerced its employees in the exercise of their Section 7 rights and thereby has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act by the discharge of Dennis Fox. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I hereby recommend that Respondent , Sidles Company, Omaha , Nebraska, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of , United Automobile, Appliance and Conditioned Air Employees' Association , or any other labor organiza- tion, by discriminatorily discharging or refusing to reinstate employees , or by discrimi- nating against them in any other manner in regard to their hire and tenure of employ- ment or any term or condition of employment. (b) Threatening employees with reprisals for signing union authorization cards. (c) Promising or announcing any different employee treatment in the future or economic benefits to employees to induce them not to designate the above -named or any other labor organization as their collective -bargaining representative. (d) In any other manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization , to bargain collectively through representatives of 10 N.L.R.B. v. Entwistle Mfg. Co., 120F. 2d 532 , 536 (C.A. 4). SIDLES COMPANY 467 their own choosing, to engage in 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 I find will effectuate the policies of the Act: (a) Offer to Ronald King immediate and full reinstatement to his former or sub- stantially 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 practiced against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and 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 determine the amount due as backpay. (c) 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, as amended, after discharge from the Armed Forces. (d) Post at its plant in Council Bluffs, Iowa, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 17 (Kansas City, Missouri), shall, after being duly signed by authorized repre- sentatives of the Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply therewith.12 I further recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act by discharging Dennis Fox. "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 further event that the Board's Order Is 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." "In the event that this Recommended Order is 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 the 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of United Automotive, Appliance and Conditioned Air Employees' Association, or in any other labor organization, by discriminatorily discharging or refusing to reinstate employees, or by discriminating against them in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT threaten employees with reprisals for signing union authorization cards. WE WILL NOT promise or announce any different employee treatment in the future or economic benefits to employees to induce them not to designate the above-named or any other labor organization as their collective-bargaining representative. 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, join, or as- 1st the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, 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. 217-919-6 6-vol. 156-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Ronald King immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and will make him whole for any loss of earnings suffered as a result of the discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. SIDLES COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-In the event the above -named employee is presently serving in the Armed Forces of the United States we will notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, 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. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board 's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731. Pioneer Astro Metallics, Inc. and United Steelworkers of America, AFL-CIO. Cases Nos. 31-CA-46 and 31-CA-51. December 30, 1965 DECISION AND ORDER On November 4, 1965, Trial Examiner James R. Hemingway issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 156 NLRB No. 54.