Culinary Workers, Local 535

CULINARY WKRS. LOCAL 535 555 Culinary Workers, Bartenders and Hotel Service Employees, Local 535 , AFL-CIO and Fred A. Vacco . Case 21-CA-6776. May 11, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On May 26, 1966, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. 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. 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 brief, and the entire record in the case, and finds merit in Respondent's exceptions. Accordingly, the Board only adopts those findings, conclusions, and recommendations of the Trial Examiner consistent with this Decision and Order. We agree with the Trial Examiner that the burden is on the General Counsel to affirmatively establish discriminatory motivation in the discharge of Fred A. Vacco, the alleged discriminatee, and not on the Respondent to disprove it. As the Trial Examiner correctly observes: ... Of course, disbelief of the reasons advanced by Respondent [for discharge] does not in itself make out a violation. Unquestionably, as Respondent's counsel points out in his brief, the burden is on the General Counsel to disprove it In our view, however, the Trial Examiner's decision effectuates the very shift in the burden of proof against which he cautions. For example, the Trial Examiner confines his treatment of the General Counsel's case to a summary recitation of record testimony bearing on the efforts of several employees, including Vacco, to secure passage of an amendment to the Respondent's bylaws limiting the power of its secretary-treasurer to hire and discharge business agents. Nowhere does this testimony place Vacco in a position of instigator or leader in the promulgation of the bylaws amendment, or otherwise significantly set him apart in these respects from his equally active fellow business agents, Wiser and Coggins. i Neither the Trial Examiner nor the General Counsel has attempted to explain how the record before us supports the conclusion that Vacco's discharge constituted disparate treatment in contrast to that accorded Wiser and Coggins because of his support of the amendment as compared to Wiser, who later voluntarily resigned, and Coggins, who is still a business agent in good standing. The record facts and the lack of any showing of disparate treatment raise unresolved, doubts as to the existence of a discriminatory motive on the part of Respondent in discharging Vacco. The Trial Examiner appears to have found discriminatory motivation solely by listing the many reasons advanced by the Respondent for Vacco's discharge. Thus, he states: This case presents the comparatively rare situation where the recitation of facts leading up to Vacco's discharge vividly reveals its discriminatory character. [Emphasis supplied.] He then proceeds to list the various reasons assigned by the Respondent for the discharge of Vacco as an unsatisfactory employee. These include complaints as to his work performance from members and employees who were parties to agreements with the Respondent; Vacco's alleged general failure adequately to perform his duties as business agent; his threat to resign if he were forced to work with another business agent; his failure to keep up with night-shift work; his poor health; his antagonistic attitude in the course of his work; his failure to "police" establishments and contact new establishments; his giving misinformation to the Respondent's members; and, his offensive behavior toward office girls. After setting forth all of these reasons advanced by Respondent, the Trial Examiner, without any consideration of the testimony and without probing Respondent's defenses, concludes as follows: The shifting, inconsistent, and unconvincing grounds assigned by Respondent for terminating the employment of Vacco are persuasive indications that his protected concerted activities, rather than the reasons advanced by Respondent accounted for the action taken against him. We do not agree. Mere recitation of a Respondent's defenses does not establish discriminatory motivation. Thus, apart from the testimony of Vada Perrigo, whom the Trial Examiner does not credit, the Trial Examiner has not mentioned testimony of three witnesses which tends to corroborate the Respondent's defenses. For example, Bob Harrison and Max Daves, proprietors I In fact, it was Charles Mitchell, a member, who prepared, and solicited others to sign, the bylaws amendment 164 NLRB No. 78 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of lounges serviced by Vacco, testified without contradiction as to Vacco's overbearing and threatening manner and the fact that he pressured lounge employees, before the general public, to pay up their back dues under the threat of discharge and indeed caused the discharge of one girl under such circumstances without securing a replacement. And Dorothy Spinnato, employed in the Respondent's office, testified that Vacco engaged in offensive behavior toward the office girls and demonstrated lack of respect for the Respondent's office procedures. Vacco, himself, conceded that Perrigo had complained to him that he should perform more night work, and that he had had some difficulty with his health. We additionally note that the complaints against Vacco were not all of recent origin, but had been voiced over a period of several months. This fact lends persuasive credence to the Respondent's claim that the reasons advanced for the discharge were cumulative evidence of Vacco's general unfitness for the job of business agent. In these circumstances, and from the record as a whole, we conclude that the mutiplicity of reasons assigned for Vacco's discharge in and of itself constituted insufficient ground for the Trial Examiner to conclude that they were pretextual and designed to cloak a discriminatory motive for the discharge. Viewed in this light, the General Counsel's evidence falls far short of establishing by a preponderance of the evidence that Vacco's discharge was discriminatorily motivated. Accordingly, we conclude that Respondent did not discharge employee Fred A. Vacco in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and we shall therefore dismiss the complaint herein.2 ORDER It is hereby ordered that the complaint in the instant case be, and the same hereby is, dismissed in its entirety. 2 In view of our decision herein, we find it unnecessary to consider the other contentions raised by the parties in this proceeding TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS , Trial Examiner : This proceeding, with the General Counsel and Respondent represented by counsel, was heard before me at Los Angeles, California, on December 16, 17, and 21, 1965,' upon a complaint of the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel2 and the Board, dated September 1, and Respondent's amended answer which was duly filed on September 15.3 The complaint, based upon a charge duly filed on June 15 by Fred A. Vacco, alleged, in substance, that Culinary Workers, Bartenders and Hotel Service Employees, Local 535, AFL-CIO, herein called Respondent, violated Section 8(a)(1) of the National Labor Relations Act, as amended from time to time, herein called the Act, by, among other things, discharging Vacco for engaging in protected concerted activities. Upon the entire record in the case4 and from his observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S OPERATIONS Respondent , a labor organization within the meaning of the Act, has its principal offices in Riverside , California, and now is , and at all times material has been, engaged in organizing all unorganized persons working within its jurisdictional area, representing said persons in collective bargaining with their respective employers , and otherwise providing related services for said and other persons. Respondent is, and during all times material was, a duly chartered local of Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the International. The International, with its principal offices in Cincinnati , Ohio, has issued charters to approximately 500 local unions located in various States throughout the United States. During the 12-month period ending April 30, 1964, which period is representative of all times material, the International received at its Cincinnati, Ohio, headquarters from its various duly chartered local unions located outside the State of Ohio, in excess of $3,500,000 representing membership per capita taxes. In its amended answer Respondent averred, at the hearing it contended , and in its brief argued, that the Board lacks jurisdiction over this proceeding on the ground that , "Jurisdiction of the charge herein, if jurisdiction exists at all, rests either with the United States District Court or the Secretary of Labor pursuant to the Labor-Management Reporting and Disclosure Act of 1959." It is now settled law that a labor organization, such as Respondent, is to be treated as an employer for the purposes of the Act with respect to its relations with its own staff employees . 5 This general principle follows inescapably from Section 2(2)'s clear command that the term "employer" shall include a labor organization "when acting as an employer" and, as well, from the unequivocal legislative history which supports this interpretation of the Act. In essence, this means that an employing union, like Respondent , is subject, inter alia, to the same stricture contained in Section 8(a) of the Act as is any other employer. The fact that Vacco was not an office clerical i All dates mentioned herein refer to 1965, unless otherwise indicated 2 This term specifically includes counsel for the General Counsel appearing at the hearing s Respondent's original answer was duly filed on September 10 On February 7, 1966, the General Counsel and Respondent's counsel filed briefs which have been carefully considered 5 Office Employees, International Union, Local 11 v N L R B, 353 U S 313 , International Ladies Garment Workers Union v N L.R B , 339 F 2d 116 (C.A 2), affg in relevant part 142 NLRB 353, Federation of Union Representatives v N L R B , 339 F 2d 126 (C A 2); N.L R B v Chain Service Restaurant , (Childs Restaurants), 302 F 2d 167 (C A 2) CULINARY WKRS . LOCAL 535 557 employee in no way deprives the Board from asserting jurisdiction herein.6 Respondent contends, as stated in its brief, that in the present case the "National Labor Relations Board must ... yield [Jurisdiction] under the doctrine of preemption [for] it is apparently the premise of the General Counsel that because the end result of the internal Union quarrel was the dismissal of the charging party [Vacco] from his position, this in and of itself would vest jurisdiction in the Board. . . In support of this contention, Respondent relies heavily upon Teamsters, Chauffeurs & Helpers Union No. 327 v. Kerrigan Iron Works, 353 U.S. 968; Local 24, Teamsters v. Revel Oliver, 358 U.S. 283; Apex Hosiery Company v. Leader, 310 U.S. 469 Solomon Salzhandler v. Caputo, 316 F.2d 445 (C.A. 2); and International Association of Machinists v. Marcos Gonzales, 356 U.S. 617.7 The weakness in Respondent's argument is that we are not here dealing with the rights as a member of Respondent, as were the situations in the above-cited cases, especially in Gonzales, but rather with Vacco's purported injury to his employment relationship with Respondent. The General Counsel's theory of the case, as expressed at the hearing and in his brief, is that Vacco was discharged because Vacco engaged in certain activities protected by the Act. It thus follows that if such theory is substantiated by the record, it makes it at least arguable, if not more, that Respondent's conduct was violative of Section 8(a)(3) of the Act and hence subject to the Board's jurisdiction. Where the case, as here, is "arguably" subject to the Board's jurisdiction, that jurisdiction is exclusive.8 Accordingly, I find that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding. I further find that during all times material Respondent was and still is an employer within the meaning of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion; the Discriminatory Discharge of Fred A. Vacco 1. Prefatory statement The complaint alleges and the amended answer admits that at all times material (1) Respondent was an employer 6 In International Ladies Garment Workers Union v N.L R B , supra, where the ILGWU was treated by the Board, with court approval, as an employer with respect to its nonoffice clerical personnel such as business agents, organizers, educational directors, and others See also Federation of Union Representatives v N L.R B , supra, AFL and CIO, 120 NLRB 969 7 Respondent also relies on La Crosse Telephone Corp v Wisconsin, Employment Relations Bd, 340 US 18, and Amalgamated Association of Street, Electric Railway & Motor Coach Employees v Wisconsin, Employment Relations Bd 340 U.S 383 These two cases deal mainly with the question of preemption when a question of primary jurisdiction exists as between two administrative agencies 8 San Diego Building Trades Council v J S Garman, 359 U S. 236, cf Local 100, United Assn Journeymen and Apprentices v Borden, 373 US 690, Local No 207, Ornamental Iron Workers Union v Perko, 373 U.S. 701 9 This particular affirmative defense has been disposed of above 10 In the light of my observation of the conduct and deportment at the hearing of all the persons who testified herein, and after very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times, and being mindful of the contentions of the parties engaged in commerce and in a business affecting commerce within the meaning of the Act; (2) Vada Perrigo (a) was financial secretary and business agent of Respondent, (b) was an agent of Respondent, acting on its behalf, and (c) was a supervisor within the meaning of the Act; (3) Vacco was a business agent of Respondent and was an employee of Respondent within the meaning of the Act; and (4) on April 23, Vada Perrigo discharged Vacco from his position as business agent. The complaint further alleges that Vacco was discharged because he acted in concert with other Respondent business agents and Respondent members for the purpose of improving the working conditions of all of Respondent business agents. The amended answer denies that Vacco was discharged because of his concerted protected activity and affirmatively pleads that (1) Vacco was discharged because of numerous complaints by Respondent against him by members of Respondent and by certain employers who are parties to collective-bargaining contracts with Respondent, (2) he failed to properly and adequately perform his duties as a business agent; and (3) the Labor- Management Reporting and Disclosure Act of 1959 deprives the Board of jurisdiction over this proceeding.9 2. The pertinent facts10 Vacco, the complainant herein, has been a Respondent member for the past 7 or 8 years. In June 1963, he was appointed a Respondent business agent and on the following July 1, he was assigned to the Palm Springs- Indio, California, area. Among his duties in this area was the servicing of some 22 or 25 establishments which Respondent then had under contract. In January 1964, Vacco was replaced by Charles Brandkamp,11 by Vada Perrigo, Respondent's then acting financial secretary and business agent,12 who assigned Vacco to the so-called West-End area13 as a replacement for Tommy Greenwood. In this new assignment , Vacco called upon and serviced about 29 establishments then under contract with Respondent. In about mid-April 1964, Perrigo assigned Vacco to the San Bernardino, California, area, as a replacement for Charles Mitchell,14 where he had about 52 or 53 establishments to call upon and service. Vacco's starting wage was $100 per week; on July 19, 1963, it was raised to $125 per week; and on August 30, 1963, it was raised to $150 per week. with respect to the credibility problems here involved, of the fact that in many instances testimony was given regarding events which took place months prior to the opening of the hearing, and of the fact that very strong feelings have been generated by the circumstances of this case, coupled with the fact that it would unnecessarily protract this Decision to summarize all the testimony or to spell out fully the confusion and inconsistencies therein, the following is a composite picture of all the factual issues involved and the conclusions based thereon The parties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been carefully considered, relevant cases have been studied, and each contention advanced has been weighed, even though not specifically discussed i i Also referred to in the record as Charles Brand Kamp 12 Perngo was acting in said capacity from January 1, 1964, when the then financial secretary and business agent, Bill Hughes, resigned until she was elected to said position in March 1964 13 Which includes the California cities of Fontana, Rialto, Bloomington, Colton, and Redlands. 14 Mitchell then replaced Howard Hinkle who "was being taken out of the Riverside area to be brought in as head business agent and organizer to work with Vada Perrigo." 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Around the first part of March 1965, Charles Mitchell, a Respondent member,15 drafted, typed, and then solicited other members of Respondent to sign a document bearing the following legend: The undersigned members of Local 535 petition that the By-Laws of the Local Union be amended as follows: The By-Laws of Local 535, Culinary Workers, Bartenders and Hotel Service Employees, of the Hotel and Rstaurant Employees and Bartenders International Union AFL-CIO, dated 1963, are amended as follows: Article XI, Section 4. The Financial Secretary- Treasurer Business Agent shall perform the following duties: (a) He shall hire Business Agents to assist him in the various areas of the Local. These Business Agents shall be the field representatives of this Local and shall be the only representatives of the type that the Local shall have. The Business agents will be under the guidance and supervision of the Financial Secretary-Treasurer Business Agent and will assist him in his conduct of the business of the Local. These Business Agents shall neither be hired nor fired without the recommendation of the Executive Board and the approval of the membership. Notification of intention to either hire or fire Business Agents must be given at two consecutive meetings and voted upon at the second regular membership meeting. On March 17, Mitchell, after more than 50 members in good standing had signed the above-quoted proposed amendment,1s attended the afternoon membership meeting at which he had intended, among other things, to read the proposed amendment to the membership. Due to the lengthy discussion which ensued at said meeting regarding the terms of a new collective-bargaining contract which Respondent was attempting to secure from certain employers, Mitchell had no opportunity to read the aforementioned proposal. After the meeting, Mitchell talked to Perrigo about the proposed amendment and asked her what she thought of it." At the meeting held that evening, March 17, Mitchell read to the membership his proposed amendment.18 Regarding a conversation he had with Perrigo about 9 a.m. on April 14, Charles Brandkamp, a Respondent member and one of its business agents from October 1963 until about February 1965, credibly testified as follows: Well, in substance our conversation started out because she started telling me about the contracts they had been working on. Then she started telling me about this amendment that the boys had put on the floor, and that she was against it, and that they had better vote her way or they just wouldn't be there. This is the substance. I mean I can't remember the exact words. I had no reason to ever remember them at the time, because it was a matter of conversation, but this was the substance of our conversation that morning. 15 Mitchell was a Respondent business agent from about June until about December 1959 He also served as a business agent from September 1963 until May 1964 1s Article XV of Respondent's bylaws states, "All proposed amendments to these By-Laws must be in writing, signed by 50 members in good standing with the Local and read at three consecutive regular meetings and voted upon at the third meeting " The record does not show what comments, if any, Perngo made At the April 14 meeting, Mitchell again read to the membership his proposal.19 Gene Wiser, a Respondent member and one of its business agents from April 1964 until April 30, 1965, testified that on April 19, 1965, during a meeting between Perrigo, Coggins, Vacco, and himself, the following took place: Well, we were kicking the amendment over, and Mrs. Perrigo asked us what we thought about it. We told her that we thought that it would be right, that we didn't see any harm in it, thought it should be in our bylaws. She says, "Well, I don't think so, because I mean it is taking the power away, and the guys don't have to worry. If they get out into the job and bring in the money, they have got no worry about their job, anyway." Then she told us to get out and get some members, and bring them into the meeting, to where I mean this would be voted down-where the amendment wouldn't pass. * * Q. Now, regarding that, to the best of your recollection, give your best recollection of what Vada Perrigo said concerning going out and bringing members into that meeting. Well, she said-that I mean she didn't think the amendment should pass, and she wanted us to get some members and bring them in there to where it would be voted down. She said that she didn't think that Ed Miller would pass it anyway. Wiser further testified that during a telephone call he had with Perrigo about noon on April 20, Perrigo asked whether he "contacted" any of the members to bring them in for [sic] the meeting the next day"; that he replied that he had; and that when Perrigo inquired whether he had changed his mind about how he was going to vote on the proposed amendment, he replied in the negative. Regarding her April 19 meeting with Vacco, Wiser, and Coggins, Perrigo testified that she thought Business Agent Tom Jones was also present, and that the following took place: They had asked me the procedures throughout the international union on elected business agents. I explained to them there was only two locals that I knew of that had-in the culinary field-that had elected business agents. This was in San Francisco and Oakland. All of the other local areas which there is several-I don't know just how many-all of the business agents are appointed. I said, "It can have its good points or its bad points. If a person was interested in the union and the welfare of the union and wanted to be elected and would work at the job and do their job correctly, that this would be 11 Respondent's bylaws provide that the membership meet monthly at Respondent's headquarters on the second Wednesday at 10 a in and on the third Wednesday at 3 p in and again at 8 pm '" At the conclusion of the meeting, Mitchell handed the original signed proposal to Clara Breitmeir, Respondent's president, for posting on Respondent's bulletin board CULINARY WKRS. LOCAL 535 559 one thing; but on many occasions they did not work. They felt that they were secure, and they could hurt the union." I also said that the international union , which I had talked to Mr. Miller20 about at one time, they frowned on business agents being elected, because many of them do not do theirjobs. Perrigo further testified that she did not "approve of the substance," or of the "form" of the proposed amendment; that she did not know until they spoke at the meeting of April 21, how Vacco, Wiser, or Coggins "felt" about the proposed amendment; and that she neither asked said business agents how "they intended to vote on the amendment," nor did any of them volunteer such information. Perrigo also testified as follows: Q. [By Mr. Ansell]21 Did you ask any of the business agents to make sure that enough members were present at the meeting to vote down the amendment? A. We often ask the business agents to post-and we have a regular poster that we put in the houses22-urging the members to attend. We are quite a ways out, and it is hard for people to get over. It is difficult to get a quorum at the meetings. I have asked on many occasions to get the people in at [sic] the union meetings. Vacco testified as follows regarding a conversation he and Perrigo had on April 20: Vada Perrigo. she asked me to come into the office and sit down. She wanted to have a talk with me. She said to me, "How would you like to work with Gene Wiser, Jay Coggins, and Tom Jones?" I said, "Well, in what capacity?" She said, "Well, I want you to go out and work in their territories with them. I want you to teach them how you keep your rosters and how you keep your houses cleaned out. I like the system that you have adopted, and I want you to teach it to these boys." I said, "Well, Vada, it is all right with me, if the boys don't object with me traveling with them." She says, "They have no say in the matter whatsover." She said, "This is going to be your duties, and that is it." I says, "All right, Vada. If that is the way it is to be, it will be." Q. Did she say anything at that time what your status would be as traveling with these people, if you recall? A. No. Q. What else occurred in that conversation, if you can recall? A. She asked me how I was going to vote on the proposed amendment regarding two business agents. I told her I was going to vote in favor of it. She told me I had better not. I said, "Well, Vada, I am in favor of it." I says, "What my feelings presently is, I have got to vote in favor of it." I says, "If I was sitting in your chair, I would want the business agents to have it. I would approve it. She said, "Well, Fred, you better think it over." I says, "All right, Vada, I will go home and sleep on it tonight." She says, "You better." With respect to the conversation referred to immediately above, Perrigo testified as follows: Q. On April 20, 1965 in your office, somewhere between 12:45 and 1:00 o'clock, did you have a conversation with Mr. Vacco about the bylaws amendment? A. I can't recall it. Q. Mr. Vacco testified yesterday that there was such a meeting and that during the conversation you asked him how he was going to vote; and when he replied that he was going to vote for the amendment, you told him he had better not and that he had better think it over. A. No. We had talked. I don't remember what date, but I had talked to Fred, and I don't know if anybody else was present or not. I can't recall that either. We had talked about was it good for the union, was it bad for the union, what would be the results of it. I said, "This is something we must give a lot of consideration to for the benefit of the union and the union members." Now, this is all I can remember on this. Q. Did you make any other statements attributed to you by Mr. Vacco in his testimony that I have just quoted? A. Would you ask some of them again? Q. You heard the language that I just quoted-I was quoting Mr. Vacco's testimony of yesterday. Do you want me to repeat that? A. Yes, would you please? A. If my notes are correct, I understood him to say yesterday that during this meeting on April 20th you asked him, "How are you going to vote?"-apparently referring to the bylaws amendment. He replied he was going to vote in favor of it. You then said, "You better not. You better think it over." A. No, sir. Q. You made none of those statements? A. No, I didn't. Q. Did you make anything approximating those statements? A. No, sir. Q. Do you recall having any conversation with Mr. Brand Kamp at any time about the bylaws amendment? A. No, I can't recall that. Q. Would you say that you did not have such a conversation, or that you simply don't recall having one? A. I can't recall of ever talking to him about the amendment. I heard his testimony yesterday, and he was in my office. He had come by to return a receipt book which he had failed to turn in when he terminated. In the light of my observation at the hearing of Vacco, Wiser, and Perrigo, and after a very careful scrutiny of their respective testimony, I find that Vacco's and Wiser's versions of the events about which they testified, as set forth above, to be substantially in accord with the facts. This finding is based mainly, but not entirely, on the fact that Perrigo gave me the distinct impression that she was attempting to conform her testimony to what she thought 20 General president of the International 21 Respondent's counsel 22 The establishments under contract with Respondent 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to be to the best interest of the Respondent. On the other hand, Wiser and Vacco each impressed me as being a person who was meticulous in not enlarging his memory about the events under inquiry.23 At the April 21 membership meeting, Mitchell read the proposed amendment for the third time. Thereupon, the matter was thrown open to the membership for discussion. Besides Mitchell, Business Agents Gene Wiser, Jay Coggins, and Vacco29 spoke in favor of the amendment and Business Agents Harry Downey, Cleyts Carr, Thomas Jones, and Sue Harming spoke against it.25 After the business agents and the rank-and-file members had voiced their respective opinions, Perrigo left the podium and from the floor expressed her opposition to the proposed amendment.26 Mitchell's amendment was adopted by the required margin. Robert Munselli, a member of Respondent's executive board, testified, and I find, that he has been Respondent member for 31 years; that he voted against the proposed amendment at the April 21 meeting; that immediately after the said meeting had concluded he approached Perrigo and said to her, to quote Munselli, "I would fire all three of them s-o-b27 if I was in her job"; and that Perrigo replied, "I am kind of mad enough to."211 Under date of April 29, Ed S. Miller, general president of the International, wrote Perrigo as follows:29 This is to acknowledge receipt of your letter dated April 26, 1965, concerning an amendment to your local union bylaws, specifically Article XI, Section 4, which deals with the duties of the Financial Secretary-Treasurer-Business Agent. The amend- ment submitted provides in relevant part that Business Agents shall neither be hired or fired without the recommendation of the Executive Board and approval of the membership. We have reviewed the provisions dealing with the duties of the Financial Secretary-Treasurer- Business Agent in detail. Under the circumstances set forth therein we find sufficient safeguards for the activities of the Financial Secretary-Treasurer-Business Agent to conduct the affairs of the local union in accordance with its by-laws. We have no reason to believe that this amendment would assist in the organizational activities of Local 535. On the other hand this could tie the hands of the responsible officer of the local union (who is elected by secret ballot by all the membership of the union) in denying him the right to hire and fire assistants in the organizational activities of the union, particularly if it became necessary to discharge said person, if in his opinion it would be to the best interest of the union. Accordingly, it is my opinion and I so rule that the amendment to Article XI, Section 4, submitted to this office on April 26, 1965, stands disapproved and not allowed. Between 11:30 a.m. and 1:30 p.m. on April23, Vacco conferred with Perrigo, in the latter's private office, about, among other things, a complaint which had been lodged with him by certain members employed at San Bernardino restaurant under his supervision. Vacco told Perrigo that said members wanted to discuss with her their employer's refusal to contribute to Respondent's health and welfare fund. The conference concluded when Perrigo assured Vacco that she would take care of the matter. Vacco then left Perrigo's office and went to his desk, in the outside office, and to attend to certain matters pertaining to his job. Upon completing the aforesaid matters, Vacco went to Helen Jones, Perrigo's private secretary and wife of Business Agent Tom Jones, and asked for his paycheck which was due him that day. Although it was customary for Helen Jones to give Vacco his paychecks, this time she told him he would have to get it from Perrigo. Thereupon, Vacco returned to Perrigo's office and requested his check. Instead of handing Vacco his paycheck, Perrigo said that he was discharged. When Vacco asked why he was fired, Perrigo said, according to Vacco, because (1) he "hadn't been doing a good job on your territory," (2) he failed "to contact Trader Island " (a restaurant located in Vacco's territory), and (3) he "failed to cooperate with the officers of the union and the office staff." In reply to Perrigo's asserted reasons for his dismissal , Vacco said that, (1) he had been doing a good job and could obtain affidavits to that effect, (2) he and Wiser had on two separate occasions gone to Trader Island and on each occasion the proprietoress was not at the restaurant, and that he and Wiser were scheduled to visit that establishment again the following Monday, and (3) he always cooperated with her, the officers, and the office personnel, adding that he never had "any difficulties." Vacco then asked Perrigo to put in writing the reasons for his discharge, which she refused to do. At Perrigo's request, Vacco went into the outer office and handed Helen Jones all his "Union literature and supplies." Vacco then returned to Perrigo's office and Perrigo gave him checks for his pay, car allowance, and for the amount of annual vacation due. Perrigo testified that when she discharged Vacco she told him, "I had to terminate him, because he wasn't doing his job, he was not keeping up the night shift work, we were losing people, and after checking his [houses] and house list, there were a lot of people that were not organized, and that he had not contacted the places that 23 This is not say that at times Wiser and Vacco were not confused on certain matters or that there were no variations in their objectivity and convincingness But it should be noted the candor with which each admitted that he could not be certain as to dates, times, or exact words used, only serves to add credence to what a careful study of his testimony shows what he honestly believed to be the facts 24 Vacco first became apprised of the proposed amendment on March 17, when it was shown to him by Mitchell 21 Besides the above -named business agents, some rank-and- files spoke, some spoke for some spoke against the proposal 28 It was customary for Perrigo and the other officers to sit on the podium during membership meetings On occasion, Perrigo had expressed from the podium her opinion regarding certain matters then under discussion The credited evidence discloses no prior instance of Perrigo's leaving the podium to express her opinion from the floor on any matter under discussion. 21 Meaning Vacco, Wiser, and Coggins, the business agents who spoke in favor of the proposed amendment 28 Regarding this incident, Perrigo testified as follows- Q By the way, did you have occasion to examine-to exchange some comments with Mr Munselli immediately after the vote? A No, sir, I can't remember it Q You heard his testimony yesterday9 A Yes, I did Q Do you recall him speaking to you at all on the platform9 A No, sir, I can't recall it 11 Copy of this letter was sent to Respondent's president CULINARY WKRS . LOCAL 535 561 were opening up like I had asked him to do. Therefore, I had no alternative but to terminate him." She further testified, "I believe so," when asked whether the reasons set forth above comprised "all of your reasons for terminating" Vacco.30 3. Concluding findings This case presents the comparatively rare situation where the recitation of the facts leading up to Vacco's discharge vividly reveals its discriminatory character.31 In support of its contention, as expressed in its amended answer, at the hearing, and in its brief, that Vacco's support of the Mitchell-proposed amendment to Respondent's bylaws played no part in Perrigo's decision to discharge him, Respondent advanced various and sundry reasons for her action. Thus, (1) the amended answer averred that Vacco "was discharged ... because of numerous complaints received by the Union against [him] from members and from employers who are parties to agreements with the respondent union ... [and] for the additional reason that he failed to properly and adequately perform his duties as a business agent of the Union"; (2) Perrigo testified that at a meeting held on March 10, with Vacco, Wiser, and Coggins, Vacco and Wiser threatened to resign their jobs as business agents if she retained Tom Jones whom she had, about a month previously, appointed business agent;32 that when she asked Vacco and Wiser whether they wanted their checks right then, each replied that they would remain on the job until all the collective-bargaining contracts then under consideration had been signed by the employers involved; that immediately after the conclusion of the March 10 meeting, she decided "to look for another business agent, because of the friction, of the ultimatum that they had given me"; that she then made up her mind to terminate Vacco and thereupon began looking "for another business agent to replace him"; that around the first part of April, she went, to quote Perrigo, "to the bar where" Al Toth, "was working and told him that I wanted to talk to him because I was going to terminate the San Bernardino business agent, and I needed a replacement. But I didn't want to talk to him in the bar because he was on duty, and that I would call him the following day and meet him some place and talk to him about it";33 and that the reason she did not decide to discharge Wiser at that time was because she had received only a few complaints about Wiser's work and as far as she knew Wiser was doing a good job. 30 Perrigo also testified that "a short time" before Vacco was terminated she told Vacco to keep his hands off of the female office workers This admonition came about, Perrigo testified, because it had come to her attention that Vacco had pinched Darla Werner, one of the office girls 31 Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Company v. N L R B., 111 F 2d 291, 293 (C A 4) " direct evidence of a purpose to violate the statute is rarely obtainable " Accord N.L R.B v Bird Machine Company, 161 F 2d 589, 592 (C A 1), N L R.B v Dan River Mills, inc., 274 F 2d 381 (C A 5), Northern Virginia Steel Corp v N L R B., 299 F 2d 683 (C A 4) [sic] 32 Vacco, Wiser, and Coggins had informed Pemgo that they resented her appointing Jones as a business agent because, among other things, he was not, and never had been, a member of Respondent or any of its sister unions 33 Toth was hired shortly after Vacco's discharge Pemgo testified that prior to March 1965, she and Toth had discussed the possibility of Toth becoming a Respondent business agent 34 Compare the cases where the courts have held that shifting explanations by an employer for the discharge of an employee (3) It will be recalled that Perrigo testified that when she discharged Vacco she told him "I had to terminate him, because he wasn't doing his job, he was not keeping up the night shift work. We were losing people, and after checking his [houses] and house list, there were a lot of people that were not organized, and that he had not contacted the places that were opening up like I had asked him to do. Therefore, I had no alternative but to terminate him." (4) In its brief Respondent states, "Perrigo's dissatisfaction with Vacco dates back many months ... that she received more complaints concerning Vacco than any other business agent ... Perrigo made specific mention of some of the complaints. They are spelled out in detail in Perrigo's testimony. A partial listing is as follows": Vacco's health was poor and he sometimes didn't work because of "nervousness." Complaints from the proprietor of the Orange Bowl about Vacco's attitude resulting in Vacco being ordered off the premises. The receipt of anonymous telephone calls from people purporting to be members employed at Sages complaining about erroneous statements made by Vacco; a complaint from Bob Harrison, proprietor of Sammy's Cocktail Lounge that Vacco had talked one of his employees into quitting. Vacco approached the proprietor of Tut's Bar in such a manner and at such times as to arouse the antagonism of the proprietor and cause him to refuse to sign a Union contract. Vacco failed to properly "police" the establishments in his area for the presence of non-union employees and failed to contact new employees and enforce the Union security clause. This failure by Vacco resulted in numerous complaints from members regarding the presence of the non-union personnel. Perrigo received many complaints from members that they were not receiving insurance forms, etc. Vacco was negligent in not supplying these things to members upon their request. Vacco was careless about contacting new establishments in his area. Vacco's behavior around the office girls was offensive and disruptive, causing several of the girls to complain to Perrigo. Vacco submitted unreasonably high expense accounts. The shifting, inconsistent, and unconvincing grounds assigned by Respondent for terminating the employment of Vacco are persuasive indications that his protected concerted activities, rather than the reasons advanced by Respondent accounted for the action taken against him.34 may warrant an inference that the true reason was the employer's hostility to the union For example, N L R B v Crystal Spring Finishing Company, 116 F 2d 669 (C.A 1), N L R B v Yale Towne Manufacturing Co , 114 F 2d 376 (C A. 2), N.L.R B v. Condenser Corporation, 128 F 2d 67 (C A 3), N L R B. v Eclipse Moulded Products Company, 126 F 2d 576 (C A 7) And this is so even where the employer had "plausible grounds" for the discharge United Biscuit Company v N L R B , 128 F 2d 771 (C A 7) See also N L R B. v C W Radcliff, Homedale Tractor & Equipment Company, et al., 211 F 2d 309 (C A. 9), which holds that the giving of implausible, inconsistent, or contrary explanations of a discharge may be considered in determining the motive therefore, it is, as here, a circumstance indicative of antiunion motivation Of course, disbelief of the reasons advanced by Respondent does not in itself make out a violation Unquestionably, as Respondent' s counsel points out in his brief, the burden is on the General Counsel to establish discriminatory {votive, not on Respondent to disprove it Here, the General Counsel has more than amply met that burden 562 DECISIONS OF NATIONAL Upon the entire record in the case I am convinced, and find , that Fred A. Vacco's above -referred to activities were concerted activities protected by the Act . Accordingly, I find that by discharging Vacco on April 23, 1965, for engaging in said protected concerted activities, Respondent violated Section 8(a)(1) of the Act . I further find that by such acts and conduct , Respondent interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices violative of Section 8(a)(1) of the Act, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment , and the terms and conditions of employment , of Fred A. Vacco, it is recommended 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 . It is also recommended that Respondent make Fred A. Vacco whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him , by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement , together with interest thereon at the rate of 6 percent per annum , less his net earnings during that period. Loss of pay shall be computed and paid in the manner set forth in F.W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716. LABOR RELATIONS BOARD The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure Respondent 's employees of their full rights guaranteed them by the Act, it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. I further recommend that Respondent be ordered to notify Fred A. Vacco, if presently serving in the Armed Forces of the United States of his right to full reinstatement , under the conditions here prescribed, 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. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and has been at all times material, an employer within the meaning of Section 2(2) of the Act, and is, and during all times material has been , engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Fred A. Vacco on April 23, 1965, and thereafter refusing to reinstate him, Respondent has engaged in and during all times material was engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Fred A. Vacco, thereby discouraging protected concerted activity, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]