Redwing Carriers, Inc.

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redwing Carriers , Inc. and M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia. Redwing Carriers , Inc. and Local 79, Teamsters, Chauffeurs , Warehousemen & Helpers affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Petitioner. Cases 12-CA-3524-1 and -2,3562-2, -3, and-4, and 12-RC-2483 May 31,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On February 10, 1967, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices, and recommended that such allegations of the complaint be dismissed. With respect to the objections to the consent election held on July 9, 1966, in Case 12-RC-2483, the Trial Examiner recommended to the Regional Director for Region 12 that they be sustained, that the election be set aside, and he remanded the instant representation proceeding to said Regional Director for the purpose of conducting a new election at such time as the latter deems the circumstances permit the free choice of a bargaining representative. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering 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 the instant cases to a three-member panel. 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 these cases, and hereby adopts the findings,2 conclusions, and recommendations3 of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Redwing Carriers, Inc., Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations other than those found by the Trial Examiner. ' Respondent contends, contrary to the Trial Examiner, that there is no basis in the record for his finding or basing his decision on a 15-year history of Respondent opposition to the unionization of its employees. The Trial Examiner stated, and we agree, that said finding is based on evidence adduced solely by Respondent at the hearing and is used by him for background information only. Thus, Respondent President Charles E Mendez set forth this history and particularly emphasized at employee meetings his bitter opposition to the Union which unsuccessfully sought, during the period November 1965 to April 1966, to organize the drivers of Respondent's wholly owned subsidiary, Blythe Motor Lines We are satisfied on the basis of the entire record that Respondent's allegations of bias and prejudice on the part of the Trial Examiner are completely without merit 2 The Trial Examiner found that the following statement made by Respondent Vice President Frank Kelly to the drivers at the April 23, 1966, meeting did not constitute a violation of Section 8(a)(1) of the Act because it was merely an expression of "views, arguments, or opinion" protected under the "free speech" provisions of Section 8(c) of the Act "The Teamsters Union was interested only in initiation fees and dues, and customarily pays off a company whose employees it represents so that the company will hire and fire unusual numbers of employees so that the Union may obtain more initiation fees." The Trial Examiner also found, without resolving conflicting testimony as to whether President Mendez made a similar statement at a meeting on May 14, that, in any event, it, too, came under the same provision. In the absence of exceptions thereto, we hereby adopt these findings pro forma 3 As recommended by the Trial Examiner, the representation proceeding, Case 12-RC-2483, is severed from the unfair labor practice proceeding and remanded to the Regional Director for appropriate action Our Decision and Order herein is limited to the five complaint cases The Chardon Telephone Company, 139 NLRB 529. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: The issues in Case 12-CA-3524 (1 and 2) and in Case 12-CA-3562 (2, 3, & 4) in this consolidated proceeding arise out of the unfair labor practice provisions of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. The issues in the last-captioned case, Case 12-RC-2483, are essentially the same. The specific issues and the findings and conclusions thereunder are set forth below. The initial complaint herein against Redwing Carriers, Inc., hereinafter referred to as the Respondent or Employer, was issued on July 5, 1966, in Cases 12-CA-3524-2, and 12-CA-3524-2, pursuant to unfair labor charges filed by M. Vicente Gomez and Armando M. Diaz on May 13 and June 10, 1966, respectively. On July 9, 1966, pursuant to a petition filed on May 9, 1966, in aforementioned Case 12-RC-2483, a consent election was conducted among a unit of drivers' in the ' The unit set forth in the consent-election agreement covering drivers is' "All truck drivers employed and domiciled at the Employer's Palm River terminal, Tampa, Florida, excluding all other employees, dispatchers, guards, watchmen and supervisors as defined in the Act " 165 NLRB No. 10 REDWING CARRIERS employment of the Employer at its Palm River terminal in Tampa, Florida, to determine whether or not the members of said unit desired representation by Local 79, Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as the Petitioner or Union. At that election2 182 of the approximately 200 employees in the unit voted and a majority voted against the Union. On July 14, 1966, the Union filed and served timely objections to the conduct of the Employer affecting the results of that election. The conduct of the Employer to which the Union objected was alleged by that organization as follows: Following the filing of the petition and in the immediate pre election period, the employer by its officers, agents and representatives, threatened employees with retributive action in the event they did not stay away from the petitioner; warned employees not to become involved with the petitioner or to sign its authorization cards; interrogated employees to determine who was urging the union; threatened changes in wages, hours and working conditions in the event the petitioner was successful in the election; instructed employees to repudiate the petitioner; threatened the loss of employee benefits; promised employees increased benefits in exchange for repudiation of the petitioner and discharged employees who were known to the employer as union adherents. Pursuant to the agreement for consent election and the provisions of Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Board's Regional Director for Region 11 conducted an investigation of the issues raised by the foregoing objections and afforded the parties full opportunity to submit evidence bearing on these issues. On August 1, 1966, the said Regional Director filed his "Report, Order and Notice of Consolidated Hearing on Objections" in that proceeding in which he found that the objections filed by the Union "are essentially coextensive with the unfair labor practice complaint allegations" in Cases 12-CA-3524 (1-2) and therefore concluded that the Union's objections "raise material and substantial issues . which can best be resolved after a hearing thereon." In view of his finding that the issues raised by the objections in Case 12-RC-2483 and those raised in Cases 12-CA-3524 (1-2) are essentially coextensive, the Regional Director in his aforesaid order consolidated the two cases for hearing. On August 11, 1966, the Regional Director issued a further consolidated complaint herein in which he incorporated, by amendment, additional allegations of unfair labor practices based on charges duly filed by Henry P. Savage in Case 12-CA-3562-2 on July 11, 1966, by Robert A. Gonzalez in Case 12-CA-3562-3 on July 15, 1966, and by Raymond C. Garcia in Case 12-CA-3562-4 on July 19, 1966. At the hearing, the amended complaint was further amended by the addition of subparagraphs (ee) and (ff) to paragraph 6 of the complaint which allege additional 8(a)(1) allegations. These amendments have been reduced to writing and are now on file. Respondent's answer, dated August 17, 1966, admits the jurisdictional and certain other factual allegations of ' An election was also held on July 18, 1966, pursuant to separate agreement for a consent election, among employees in another unit consisting of all shop employees employed by the Employer at its Palm River terminal, Tampa, Florida At that election , 62 of approximately 70 shop employees voted The 61 the complaint, but denies the commission of any unfair labor practices. The amendments to the complaint made at the hearing are similarly denied. The case was heard at Tampa, Florida, before me on August 31 and September 1, 2, 6, and 7, 1965. Briefs have been received from General Counsel and Respondent. These have been carefully reviewed and considered. Upon the entire record3 and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Florida corporation with principal office and place of business at Tampa, Florida, where it is engaged in the business of interstate transportation of bulk commodities by motor carrier. During the past 12 months, in the course and conduct of its business operations, Respondent derived revenue in excess of $100,000 from transporting and hauling products from points within the State of Florida, to points located outside the State of Florida. It is found that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Local 79, Teamsters, Chauffeurs, Warehousemen & Helpers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as Petitioner or Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues in the consolidated cases are whether (1) Peter Romero, Lorenzo Lima, and Dan H. Hanson were Respondent's agents and supervisors at the times herein pertinent within the meaning of the Act; (2) Respondent interfered with, restrained, and coerced employees in the exercise of their rights to self-organization in violation of Section 8(a)(1) of the Act by threatening employees with retributive action if they did not stay away from the petitioning Union; by warning employees not to become involved with the Petitioner or sign its authorization cards; by interrogating employees to determine who was urging the Union; by threatening changes in working conditions in the event the Petitioner was successful in the election; by instructing employees to repudiate the Union; by threatening the loss of employee benefits if the employees selected the Union; by promising benefits in exchange for the repudiation of the Union, and other similar conduct; (3) the Respondent discriminately discharged M. Vicente Gomez, Armando M. Diaz, and Raymond C. Garcia in violation of Section 8(a)(3) and (1) of the Act; (4) Respondent discharged Robert A. Gonzalez in violation of Section 8(a)(4) and (1) of the Act; and (5) Respondent discharged Henry P. Savage in violation of Section 8(a)(1) of the Act. election resulted in the selection of the above-mentioned Union as the bargaining representative of the unit Y General Counsel's motion to correct certain typographical errors in the transcript , being unopposed, is hereby granted 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Background Respondent Redwing Carriers, Inc., has been engaged in the transportation of bulk commodities by motor carrier in the State of Florida since 1944. The Company was organized by Charles E. Mendez who has been its president and dominating force in all the intervening years. Other officers of the Company are Frank Kelly, vice president in charge of sales and first assistant to the president; Gilbert Pierola, vice president in charge of operations; and William B. Mendez, also known as Bill Mendez, vice president in charge of maintenance and brother of the president. The Company's principal place of business is its Palm River Road terminal at Tampa, Florida, 'hereafter called the Tampa terminal. It employs approximately 200 truckdrivers and some 80 mechanics at this terminal. The Union has sought to organize the Respondent's employees at its Tampa terminal since 1949. The Union appears to have had its first success at the Tampa terminal in July 1966 when it won a Board-conducted representational election in a unit consisting of all shop workers in the terminal, but in the same month it lost, by a fairly substantial number, an election among employees in another separate unit consisting of Respondent's drivers employed and domiciled at the same terminal, as heretofore noted. C. Issue as to Supervisory and Agency Status of Peter Romero An issue as to the supervisory' or agency status of Peter Romero is raised by the pleadings. The evidence adduced by General Counsel in support of this issue is entirely circumstantial. The evidence shows that Romero, age 57, has been in Respondent's employment for the past 14 years. He works in Respondent's shop at its Tampa terminal at an hourly rate of $1.55. His station is in the tire department of the shop at a place where he keeps such books and records as his duties call for. Romero has no title and is pretty much on his own. Such direction as he receives comes principally from the aforementioned Bill Mendez, vice president in charge of maintenance; Shopwide Supervisor Armando Mendez; and on occasion from the president, Charles E. Mendez. Romero's wife and Bill Mendez are cousins. Romero and his wife own approximately 800 shares of the outstanding capital stock of the Respondent corporation. Romero's testimony shows that he has a variety of duties5 which takes him to all parts of the terminal, but that his chief function is to look after the tire department shop. Although an employee by the name of Ernest Hoffman appears to have the title tireshop foreman, the credible testimony of long-time tireshop employee Lawrence Wilson establishes that Hoffman receives his instructions as to what the five or six tireshop employees are to do each day from Romero, after Romero has consulted with Vice President Bill Mendez and Shopwide Supervisor Armando Mendez. Wilson's testimony further shows that Romero instructs Hoffman "to push" the tireshop employees when the work is piling up. Wilson considers Romero his top boss, as it was Romero to whom he applied for a wage raise about a year ago, which he received on Romero's recommendation. The record also shows that Romero imposed a disciplinary penalty on a tireshop employee, Joe Terry, for laying off work without notice to or advance permission from Respondent, although it appears that the penalty was imposed only after Romero had consulted Vice President Bill Mendez on the matter. The record further discloses that Romero's authority extends beyond the tire department. Thus Romero in his testimony admits at least one instance of instructing a nontireshop employee, the alleged discriminatee Armando M. Diaz, to report to work earlier than his usual starting time. This was pursuant to direction and authorization by Romero's superior, Bill Mendez. The record also contains the testimony of several other Redwing employees touching on the status of Peter Romero. Angel Guerra has been a mechanic in the Tampa terminal for the past 3 years. From his observations at the terminal, Guerra unqualifiedly described Romero as the foreman of Respondent's tireshop. His testimony establishes that he actually heard Romero instruct two of the men in the tireshop to change tires. Jose F. Borja is another mechanic at the terminal. From his observation of Romero over the past 2 years, Borja also flatly described Romero as foreman of the tire repair department. He has seen and heard Romero order tireshop employees to change tires on trucks and trailers. Armando M. Diaz, one of the alleged discriminatees, was employed as a mechanic at the Tampa terminal for a period of nearly 2 years ending June 8, 1966. During this period of employment, Diaz had also observed Romero ordering tireshop employees to do various things; i.e., to go out on the road to repair tires, to take hose to trucks in the mines which Respondent serves, and to go out where a company truck has been involved in an accident and to clean up the sulphur spilled from the truck on the road. Diaz has had certain personal experience with Romero that cast further light on Romero's status at the terminal. On one occasion, Romero requested Diaz, who had no connection with the tire department, to punch in earlier than usual in order to expedite the work of the mechanical departments On another occasion Romero offered Diaz a promotion to a foreman's position at Respondent's terminal at Jacksonville, Florida, on instructions from the president, Charles Mendez. The status of Romero is also reflected in the experience of alleged discriminatee M. Vicente Gomez, a former driver in the service of the Respondent at the Tampa terminal. In May 1966 while he was still working for Respondent, the truck Gomez was driving developed a flat a Section 2(11) of the Act states* The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward,,or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 5In addition to the duties set forth above, Romero also performs certain other duties which are deemed nonsupervisory in character, to wit (a) keeps an inventory of all tires stocked at the terminal , (b) orders fuel oil for the terminal, (c) sees that gasoline and diesel storage tanks are kept full , and (d) personally places Redwing decals on Respondent's rolling stock 6 As heretofore indicated, Romero in his testimony admitted this incident, but stated that he took the indicated action pursuant to instructions of Bill Mendez REDWING CARRIERS tire. Upon calling the tireshop at the terminal he spoke to Romero who stated that he would send a man out to fix the tire. Another indication of Romero's status is the fact that he represents the Company in the matter of taking applications from employees for loans from the Company, along with two other employees who do not have supervisory status, acting as a committee. The evidence shows that he assists the applying employee in making out his loan application, presents it with recommendations to the top company officials, and personally brings the proceeds of the loan when granted to the employee. There are also a number of other incidents of record reflecting on the status of Romero. The creditable testimony of the aforementioned Angel Guerra, mechanic, shows also that Romero approached Guerra at the terminal in July 1966, represented that he had been commissioned by President Mendez to inquire what he knew about the Union, and asked what knowledge he had about the Union. The record also shows through the creditable testimony of Leonard L. Ward, a janitor in the Tampa terminal, that Romero in a private conference with Ward on May 18, 1966, at the terminal, asked Ward to vote against the Union in the forthcoming election. In the course of the same conversation, Romero told Ward that if the Union won the election the Company would cease making personal loans to employees, such as the one Ward had just applied for. Romero also informed Ward that his hours of employment would be cut from 56 to 40 hours per week and that his pay would be less if the Union won the election. The record further shows through the creditable testimony of Raymond C. Garcia, painter's helper and one of the alleged discriminatees, that Romero contacted him on June 1, 1966, in the terminal's paint shop where the latter was employed and told him, "I have to talk to everyone in the place ... about the Union." In the same conversation Romero inquired if anyone had contacted him (Garcia) to sign a union card. Some 3 or 4 days later, Romero made the same inquiry of three other employees in the paint shop in the presence of Garcia. Conclusions and Discussion Based on the evidentiary findings set forth above, I find that Peter Romero was a shop supervisor of the Respondent at all times here material. Under the Act an individual qualifies as a supervisor if he has any one of the indicia of a supervisor enumerated in Section 2(11) of the Act. Research Designing Service, Inc., 141 NLRB 211, 213. The evidence is clear that Romero had at least two of the indicia of a supervisor; namely, (1) the authority to "assign" and "direct" personnel in the tireshop and (2) that this authority was not of a merely routine or clerical nature, but required the use of independent judgment. The record shows that he was regarded by company employees as foreman of the tireshop and that he issued orders to the employees in the tire repair shop as required; and even more importantly, he directed the tireshop foremen as to the work to be done each day, after a consultation with the front office. In the light of the creditable testimony of at least five witnesses as to what they actually saw and heard Romero do in the way of assigning and directing work to be done in the tireshop, I reject the testimony of Romero and President Charles E. Mendez that Romero had no supervisory authority. 63 The record not only discloses that Romero had supervisory status over the employees in Respondent's tire department at the Tampa terminal , but that he also engaged in acts in derogation of employee rights to self- organization which under all the circumstances of record gave employees, not directly under Romero's supervision, the legitimate impression chargeable to the Respondent, that Romero was acting as the Employer's agent in transmitting to them management policies hostile to their statutory rights to self-organization. International Association of Machinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) V. N.L.R.B., 311 U.S. 72; N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285, 286-288; N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 523-524. Romero himself openly acknowledged that he worked directly under the supervision of the brothers Charles, Bill, and Armando Mendez, Respondent's president, vice president, and shopwide supervisor, respectively. The record supports the conclusion that this was also well known to Respondent's employees at the terminal. In the light of this circumstance, Romero's aforementioned inquiry of mechanic Guerra as to how he felt about the Union, under the representation that he (Romero) was making the inquiry in behalf of the company president; Romero's admonition to janitor Ward to vote against the Union in the forthcoming election and the threat of dire consequences if the Union won the election; and Romero's statement to mechanic Garcia that he (Romero) was delegated to talk to "everyone in the place ... about the Union" and to inquire as to whether Garcia had signed a card-are deemed acts of an agent made at the request and in behalf of the Employer. In summary it is found that Peter Romero at all times here pertinent was both a supervisor and agent of the Respondent within the meaning of the Act. D. Issue as to Supervisory and Agency Status of Lorenzo Lima At the hearing, a question was also raised as to the supervisory or agency status of Lorenzo Lima as a prefatory issue to the question of whether employee Robert A. Gonzalez, one of the alleged discriminatees, had been terminated in violation of Section 8(a)(4) and (1) of the Act, because he had filed a charge against Respondent. Lorenzo Lima has been in the employment of Respondent in its brake department at the Tampa terminal for nearly 7 years. For the past 4 years, he has been "in charge of the brake department" as his testimony shows, but his official title appears to be that of "lead man." There are four employees in the brake department, including Lima. Lima spends the bulk of his time looking over brake complaint tickets received from drivers and assigning and directing the brake work to be done by the other three employees in his department. He does not physically engage in making brake repairs, except as required when the work load becomes heavier than normal. Respondent's drivers frequently take up their brake problems with Lima personally. Lima has no authority to hire or fire, but has the authority to recommend wage increases. For example, he recommended to his superiors that one of his staff, the aforementioned Robert A. Gonzalez, be paid time and a half for overtime instead of straight time. The recommendation, however, was not approved. The testimony of Armando Mendez, Lima's supervisor, established that it is part of Lima's responsibilities to 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report to him any employees in the brake 'department who were "laying off or not doing a good job." In the performance of his job, Lima inspects the work performed by workers in the brake department and instructs and assists them in correcting defective work. In about August 1965, Respondent's body repair shop was moved in the Tampa terminal to a space adjacent to its brake repair department. At that time Lima was assigned certain duties in connection with the body repair shop in addition to his regular duties in the brake department. The body repair shop at that time and at all times here pertinent had two employees to which a third has been recently added. Lima himself is not a body repairman and the new duties devolved upon him in connection with the body repair shop do not require him to physically engage in body repair work. Lima's testimony establishes that sometime in August 1965 he was given the unwanted duty by his aforementioned supervisor, Armando Mendez, of keeping time on every repair job done in the body repair shop. This involved marking a shop ticket with the time a body repair job is started by the repairman assigned the job and the time it is finished. Lima's testimony further shows that drivers who called on the body repair shop for repairs to their assigned vehicles were referred to Lima by the body repair shop personnel. Additional testimony was received on the scope of Lima's authority over the repairmen working in the body repair shop from Benjamin Small, one of the two repairmen in that shop over the past year. On the basis of Small's credible testimony, I find that a year or more ago when the body shop was moved to its present location adjacent to the brake department Small was told by Shopwide Supervisor Armando Mendez that thereafter Lima was to be his immediate supervisor and that he was to get his orders from Lima. Small's testimony further establishes that Lima exercised the authority thus conferred on him by Armando Mendez by assigning work to the body repairmen and directing them as to what was to be done in the way of body repairs. In this connection, Small's testimony further shows that after the body shop was moved to its present location, Lima would change him from one job to another as often as three or four times during the course of some days. It is also found from Small's testimony that Lima on one occasion directed an employee who worked in another department not to come into the body repair shop to talk to the repairmen because this interfered with their work. Conclusion From the above evidentiary facts showing that Lorenzo Lima responsibly assigns and directs Respondent's employees in both its brake and body repair departments, I find and conclude that Lima has been at all times here material a supervisor and agent of the Respondent within the meaning of the Act. Research Designing Service, supra. E. Issue as to Supervisory and Agency Status of Dan H. Hanson The final employee we reach for consideration on status as a supervisor is Dan H. Hanson. ' General Counsel in the opening paragraph of his brief states. "A statement of the facts of the case is omitted except insofar as Hanson was hired and functioned principally as a logman during his 5-month period of employment ending in April 1966 at Respondent's Tampa terminal. But the record is undisputed that he also functioned as a dispatcher at the terminal each Saturday, from 6 p. m. until 6 a.m. Sunday, in the 5 months he worked for Respondent. Hanson's testimony also establishes that he was called on from time to time during the week by various dispatchers to take their place during their brief absences for such personal reasons as seeing a doctor or taking rest breaks. During the period here involved, Respondent had a total of five fulltime dispatchers; four working at staggered hours during the day and the fifth working at night. On Saturday nights, Hanson took over as the sole company dispatcher. Although Hanson received a prepared schedule of orders and driver assignments on reporting to work each Saturday night, his duties involved dealing with a minimum of 30 drivers and giving them their assignments for the night. I assign no weight to the testimony of Vice President Pierola seeking to minimize the duties performed by Hanson on Saturday nights as a dispatcher, as the record as a whole establishes that Hanson performed the same duties Saturday nights as those performed by Respondent's full-time dispatchers during the other days and nights of the week. The record further shows that the Respondent was constantly recruiting for drivers and that Hanson from time to time, without company objection, assumed the responsibility, in the temporary absences of company officials charged with the duty of hiring drivers, to receive applications from prospective driver employees, to read such applications, to put the applicants on trial runs with experienced drivers, to receive a completed form from such experienced drivers relating to the performance of the applicants, to give successful applicants safety equipment and put them to work. Conclusion Based on the evidentiary findings that it was part of Dan H. Hanson's job to function once a week as a dispatcher in charge of dispatching (assigning) some 30 drivers over a 12-hour shift and the further finding that Hanson from time to time, with evident company approval, hired drivers, I find and conclude that Hanson was a supervisor and agent within the meaning of the Act during the 5-month period of his employment with Respondent from November 1965 to the latter part of April 1966. F. Issues as to Interference, Coercion, and Restraint The consolidated complaint, as amended, contains 32 separate allegations of alleged acts of interference, coercion, and restraint in violation of Section 8(a)(1) of the Act. These allegations, denied by Respondent's answer, are contained in paragraph 6(a) through (ee), of the consolidated complaint, as amended. General Counsel in his brief has withdrawn the charges contained in paragraphs 6(d) and (i) and a portion of (z) of the consolidated complaint. Thus there remains for consideration 30 alleged violations of Section 8(a)(1). General Counsel in his brief has confined' his discussion to 10 of these allegations, as set forth in subparagraphs (e), facts are elicited from the transcript in the discussion of individual issues " REDWING CARRIERS (f), (j), (k), (m), (p), (q), (u), (v), and (z). Respondent in its brief appears to have discussed all of the alleged 8(a)(1) violations, except those contained in subparagraphs (n), (u), and (x). The Respondent since 1949 has had a history of opposition to the unionization of its employees. It has succeeded in winning some 11 Board-conducted elections in the past 15 years. It has successfully fought off a long and costly truckdrivers' strike at the terminal of its wholly owned subsidiary, Blythe Motor Lines, Inc., at Sanford, Florida, which had resulted in the picketing of Redwing's own Palm River terminal at Tampa from November 1965 to April 1966, all at a cost of tens of thousands of dollars to the Respondent. Respondent's President Mendez spoke bitterly of this experience at a meeting of Respondent's Tampa terminal employees on April 23, 1966. He spoke again at greater length to another meeting of Redwing's employees at the Tampa terminal in July 1966 of the Company's resolute resistance to the Union's demands in the Blythe situation and of the Company's opposition to the Union. The Charging Party in this proceeding and the Local which sought to organize Blythe Motor Lines, Inc., is the same Union. The findings in this paragraph are based on evidence adduced solely by Respondent at the hearing and are set forth for background information in connection with the incidents described below. 1. Incident under paragraph 6(a) Under this paragraph of the consolidated complaint, it is alleged that "On or about April 15, 1966, Respondent's vice president, Bill Mendez, told an employee to keep away from that union stuff, and stated that if he [Bill Mendez] heard any more about the union stuff he would do something." This alleged incident is supported by the undisputed testimony of Robert A. Gonzalez, brake mechanic and one of the alleged discriminatees herein, who had been an employee of the Company at its Tampa terminal for about 6 years prior to July 15, 1966. On April 15, 1966, Gonzalez received word from fellow employee Manuel Alvarez that Alvarez' application for a loan from the Company had been turned down by Vice President Bill Mendez because Bill Mendez had received reports that Alvarez had been assisting Gonzalez in passing out union authorization cards to employees at the terminal. Within minutes after receiving this information from Alvarez, Gonzalez sought out Vice President Mendez and demanded who had told him that he (Gonzalez) had been passing out union cards. Mendez replied that he had this information from three different employees and when Gonzalez demanded their names, Mendez cut him off by saying, "I don't want to hear no more of this Union stuff and, if I hear something about it, something more about it, I will do something." Mendez thereupon walked away from Gonzalez. Discussion and Conclusions Respondent in its brief does not deny the above incident, but contends that "under the circumstances" Mendez' statement to Gonzalez that "he did not want to hear any more of that Union stuff" and if he did, he would "do something" about it was a mere refusal to talk "in an apparent effort to protect himself from a future labor practice charge." I disagree with this contention. The record is clear that Mendez told Gonzalez that he had received reports from three different employees that 65 Gonzalez had been seen distributing union authorization cards; this carries the inference that Mendez was deeply concerned about Gonzalez' union activities and that Mendez intended to stop such activities. From all the circumstances of record, I find and conclude that the aforementioned statement by Vice President Bill Mendez to Gonzalez on April 15, 1966, that he did not want to hear any more about this union stuff and that if he did he would "do something" about it constituted an implied threat of reprisal for union activities in violation of Section 8(a)(1) of the Act. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because the incident does not relate to employees in the drivers unit involved in said Case 12-RC-2483 and also because the incident occurred prior to May 9, 1966, the filing date of the petition for an election in said Case 12-RC-2483. Goodyear Tire and Rubber Company, 138 NLRB 453. 2. Incident under paragraph 6(b) Under this paragraph of the consolidated complaint, it is alleged that "On or about April 29, 1966, Respondent's vice president, Gilbert Pierola, asked an employee if he had been passing out union cards, also if he had signed a union card, and warned the employees not to get mixed up with the Union or hand out union cards." M. Vicente Gomez, an alleged discriminatee, was employed at Respondent's Tampa terminal as a truckdriver from November 1965 to May 12, 1966. The credible testimony of the aforementioned Dan H. Hanson, Respondent's former logman and Saturday dispatcher heretofore found to be a supervisor, shows that in April 1966 he passed on word that he had received from a driver (Mallory Lytton) to Vice President Pierola that Gomez had been seen passing out union authorization cards to employees at the terminal, to which Pierola's only comment was "Okay." The record further shows that Hanson told Gomez on April 29, 1966, that he had had a report that Gomez had been passing out union cards and that he had passed this information on to Pierola. Gomez, denying that he had been distributing union cards, expressed great anxiety that the report to management of his passing out union cards could lead to his discharge. While Gomez was thus expressing his concern over the matter to Hanson, Pierola came by, heard what was being said, and asked Gomez to come into his office for a private conference. At the conference, the credible testimony of Gomez shows that Vice President Pierola told him he (Pierola) had received a report from Hanson that he (Gomez) had been distributing union cards; that Pierola asked Gomez whether he had been doing this and if he had signed a union card; and that Pierola warned Gomez that it was a "bad thing" to sign a card. He also advised Gomez in effect not to get on the "bad side of the company" by signing a union card. Pierola's version of the conference, to wit, that he had merely told Gomez that he was "not in bad" with the Company and had nothing to worry about concerning his job tenure, is not credited. Conclusions Based on the above evidentiary findings, I find and conclude that Respondent's Vice President Gilbert Pierola's above statement on April 29, 1966, to Respondent's then employee M. Vicente Gomez constituted unlawful interrogation and an implied threat of 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprisal for union activities in violation of Section 8(a)(1) of the Act. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because it occurred prior to May 9, 1966, the filing date of the petition for election in said Case 12-RC-2483. Goodyear Tire and Rubber Company, supra. 3. Incident under paragraph 6(c) Under this paragraph of the consolidated complaint, it is alleged that "On or about April 29, 1966, Respondent's logman Dan H. Hanson asked an employee who was pushing the Union, and further asked whether a certain named employee was pushing the Union." Cecil Welch has been a driver out of Respondent's Tampa terminal for the past 4 years. Welch on April 29, 1966, called on the aforementioned logman Dan H. Hanson, heretofore found to be a supervisor, to pick up his paycheck. The uncontradicted testimony of both Welch and Hanson shows that on that occasion Hanson asked Welch into an unoccupied office at the terminal and asked him who was "pushing" the Union, and further inquired whether the aforementioned M. Vicente Gomez, then one of Respondent's drivers and presently an alleged discriminatee, was passing out union cards and pushing the Union. I find that Respondent through its Supervisor Dan H. Hanson has unlawfully interrogated its employee M. Vicente Gomez by the above-described conduct in violation of Section 8(a)(1) of the Act. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because it occurred prior to May 9, 1966, the filing date of the petition for election in said Case 12-RC-2483. Goodyear Tire and Rubber Company, supra. 4. Incidents under paragraph 6(e) and (f)s Under the two subparagraphs here under consideration, it is alleged that Respondent's vice president, Frank Kelly, in either the month of April or May 1966, addressed Respondent's drivers at a drivers' meeting. Under subparagraph (e), it is alleged that Kelly told the drivers at the indicated meeting "that if the Union should come to represent the driver employees, the system whereby the driver employees are paid amounts which increase in accordance with the seniority of driver employees would be eliminated and the driver employees would thereafter be paid identical amounts regardless of how long they had been employed." Under subparagraph (f), it is alleged that Kelly told the drivers at the same indicated meeting "that the Teamsters Union was interested only in initiation fees and dues, and customarily paid off a company whose employees it represents so that the company will hire and fire unusual numbers of employees so that the Union may obtain more initiation fees." The Company holds monthly drivers' meetings, usually held for the discussion of safety programs. Such a meeting was held at the Tampa terminal on April 23,1966 , at which both Vice President Kelly and President Charles Mendez addressed the assembled drivers. For a long period of time prior to the meeting, the Company pursued the policy of paying their drivers for their services on a trip basis which was based on a scale that increased in accordance with the seniority of the driver employees. The credible testimony of Robert E. Marshall, a driver then in the employment of the Company, establishes that Vice President Kelly told the assembled drivers at the April 23 meeting that if the Union became the bargaining agent for the drivers, the older drivers would get the same rate of pay as any new driver who was just starting his employment with Respondent. The aforementioned Cecil Welch, one of Respondent's senior drivers, corroborated the testimony of Marshall that at a drivers' meeting a statement had been made by a high official of the Respondent that if the Union got in, the Company's system of basing rates of pay on seniority would no longer prevail, but named Respondent's president as the author of the statement and placed the meeting date in May instead of April. From the record as a whole, I accept driver Marshall's testimony that the author of the statement was Vice President Kelly and not the president of the Company and that the meeting at which the statement was made was the April and not the May 1966 meeting. The important thing is that the statement was made by a high official of the Company, and that it was made in April 1966. The statement is not relevant to objections to the election in Case 12-RC-2483 in this consolidated proceeding because the incident occurred prior to the critical date of May 9, 1966, when the petition for election in said representation case was filed. The testimony of Respondent's former driver, Marshall, also establishes that Vice President Kelly at the same drivers' meeting told Respondent's drivers that the Teamsters Union was interested only in initiation fees and dues, and customarily paid off a company whose employees it represents so that the company will hire and fire unusual numbers of employees so that the union may obtain more initiation fees. Vice President Kelly in his testimony denied that he said anything to Respondent's drivers at the April 23 drivers' meeting concerning "unions, union activity, Teamsters, labor unions, labor organizations ." These denials are not credited. The record shows that President Mendez almost invariably speaks to his drivers at their regularly monthly "safety" meetings called by management . His testimony shows that at many of these meetings , including the April 13 and July 1966 meeting, he spoke to Respondent's drivers of the Company's determined resistance to the efforts of the Teamsters Union to organize the drivers at Respondent's wholly owned subsidiary, Blythe Motor Lines, Inc., at Sanford, Florida, where the Union had been on strike for some 10 months and had caused the Respondent much loss of business. Discussion and Conclusions In my opinion , Vice President Kelly's statement to Respondent's drivers at their meeting of April 23, 1966, that they would lose the increased rate of pay they were presently enjoying by reason of seniority if the Union became their bargaining agent, constitutes, in the light of the entire record , including President Mendez' constant reminders to them at drivers' meetings of his " As heretofore noted, General Counsel has withdrawn 116(d) of the consolidated amended complaint REDWING CARRIERS determination to resist the unionization of the drivers of the Respondent's wholly owned subsidiary, Blythe Motor Lines, Inc., an implied threat of economic reprisal and hardship in order to curb protected union activities. Accordingly, I find that the statement in question is a violation of Section 8(a)(1) of the Act. Respondent's motion to strike paragraph 6(f) of the consolidated complaint is denied. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because it occurred prior to May 9, 1966, the filing date in said Case 12-RC-2483. Goodyear Tire and Rubber Company, supra. Consideration is now turned to the vice president's second statement to Respondent's drivers at the April 23, 1966, meeting wherein he told the drivers that the Teamsters Union was interested only in initiation fees and dues, and customarily paid off a company whose employees it represents so that the company will hire and fire unusual numbers of employees so that the union may obtain more initiation fees. I am unable to find this obscure statement, even when considered in connection with other unlawful conduct by the Respondent found herein, any threats, express or implied, of reprisal or force or promise of benefit. In my opinion, the statement is merely an expression of "views, arguments, or opinion," protected under the "free speech" provisions of Section 8(c) of the Act. Accordingly this charge of the complaint is hereby dismissed. 5. Incident under paragraph 6(g) Under this paragraph of the consolidated complaint, it is alleged that "On or about May 14, 1966, at a meeting of Respondent's driver employees, Respondent's President Charles E. Mendez told such employees that unions who represent employees customarily seek an arrangement with the company whereby an unusual number of employees will be hired and fired in order that the Union may obtain more initiation fees." The subparagraph (g) here under consideration is similar to the allegation in subparagraph (f) of the same paragraph considered immediately above. The credible testimony of the aforementioned senior driver Cecil Welch and Reginald Guy, a former Redwing driver, establishes that President Mendez made the statement attributed to him in the above-quoted allegation to Respondent's drivers at a regular drivers' meeting. But, there is a conflict of testimony as to whether the statement was made at the May 1966 meeting, as testified to by Welch and Guy, or at an earlier or later meeting, as the testimony of President Mendez and Vice President Kelly shows that Mendez did not attend the May meeting because of a temporary setback in his health due to an operation he had had earlier in the year. I do not deem it necessary to resolve this conflict of testimony on the date of the meeting at which the statement was made by President Mendez to Respondent's drivers" in view of the conclusion reached below on the issue. Conclusion As in the case of the almost identical allegation considered above, I find and conclude that the 67 aforementioned statement by President Mendez to Respondent's drivers is a protected expression of "views, argument, or opinion" under the "free speech" provisions of Section 8(c) of the Act. 6. Incident under paragraph 6(h) Under this paragraph of the consolidated complaint, it is alleged that "On or about May 14, 1966, at a meeting of Respondent's driver employees, company President Charles E. Mendez told such employees that if the Union succeeded in representing them, the company would do away with the system whereby driver employees are paid amounts which increase in accordance with seniority, and that thereafter all driver employees would be paid the same regardless of their seniority." This allegation is essentially the same as that considered above under paragraph 6(e) of the consolidated complaint, except that here it is alleged that President Mendez made the statement, whereas in the earlier allegation it is alleged that a similar statement was made by Vice President Kelly. The credible testimony of the same aforementioned drivers, Cecil Welch and Reginald Guy, establishes that President Mendez did make a statement to Respondent's drivers at a drivers' meeting in the spring of 1966 substantially the same as that alleged. However, the testimony of Welch and Guy that the statement was made at the May 1966 drivers' meeting is rejected because I credit the testimony of President Mendez and Vice President Kelly that Mendez made no appearance at the May meeting due to a setback from an operation he had had earlier in the year. However, Mendez acknowledged that he was present and spoke at the April 1966 drivers' meeting and driver Marshall recalled that the meeting in question was one in which Vice President Kelly introduced President Mendez as just having come back to work after an operation. For this reason, I find that the statement in question by President Mendez to Respondent's drivers was made at the April drivers' meeting. Discussion and Conclusions As in the case of the similar statement made by Vice President Kelly to the drivers at the April 1966 meeting, I find that President Mendez' statement to Redwing's drivers at the April 1966 meeting that if the Union succeeds in representing them, they would lose the present seniority system of compensation and all drivers would then be paid the same regardless of their seniority, constituted an implied threat of economic reprisal and hardship in order to discourage union activities. Accordingly, I find that the statement in question is a violation of Section 8(a)(1) of the Act. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because it occurred prior to May 9, 1966, the filing date in said Case 12-RC-2483. Goodyear Tire and Rubber Company, cupra. 7. Incident under paragraph 6(i) General Counsel has withdrawn this allegation in his brief. 9 This conflict of testimony, however, is resolved under another issue below 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. Incidents under paragraph 6(j), (k), (m), (q), and (v) All of the above-indicated allegations involve alleged unlawful interrogations of employees by Respondent through Shop Supervisor Peter Romero. In a prior section of this Decision it was determined that Peter J. Romero, stockholder in the Company, confidant of President Charles Mendez and Vice President Bill Mendez and related by marriage to the latter, was a shop supervisor and agent of the Respondent within the meaning of the Act. Under paragraph 6(j) of the consolidated complaint, it is alleged that in "About the middle of May 1966 ... Shop Supervisor Peter Romero asked employee if he had heard anything about the Union and told such employee to vote against the Union." The record identifies the unnamed employee in the above allegation to be Henry P. Savage, age 63, an alleged discriminatee, who was in the employment of Respondent from October 3, 1963, to June 1, 1966. For some time prior to his termination, Savage's job was to run errands for the office and for Vice President Bill Mendez and for General Shop Foreman Armando Mendez. He also ran errands for Peter Romero, the aforementioned supervisor. The credible testimony of Henry P. Savage shows that in the late spring of 1966 Shop Supervisor Romero asked Savage, "How do you stand with the Union?" Savage replied that he was "Neutral." As this answer was not satisfactory to him, Romero said, "Neutral or no neutral, I say how you stand?" When Savage again replied "Neutral," Romero said to him, "Be sure you vote `No' when the election comes up . . . ." Although Savage did not give the date of this conversation, the concluding remark of Romero to Savage, "Be sure to vote `No' when the election comes up ..." (emphasis supplied) clearly reveals that the conversation took place after May 9, 1966, which was the date on which the Union filed its representation petition in Case 12-RC-2483, now part of this consolidated proceeding. Accordingly, it is found that Romero's instruction to Savage to vote "No" against the Union in the election took place some time in May 1966 subsequent to May 9, 1966. In Savage's initial direct testimony, he stated that he had the above conversation with Peter "Rumore," but later corrected it, by his own voluntary statement to "Peter Romero" and otherwise established by his testimony that he was actually referring to the "Peter Romero" here under discussion through his description of Romero as the man who put decals on Respondent's truck and for whom he had run errands. Under paragraph 6(k) of the consolidated complaint, it is alleged that "About the middle of May 1966 ... Shop Supervisor Peter Romero interrogated an employee as to his union sentiments, and told such employee to vote against the Union." The credible testimony of Respondent's aforementioned mechanic, Jose F. Borja,10 shows that in the month of May 10 Boria's testimony was discussed above in the section of this Decision dealing with the supervisory status of Peter Romero. i Ward's testimony was also discussed in the section of this Decision dealing with the supervisory status of Peter Romero 12 Guerra's testimony was also discussed above in the section of this Decision dealing with the supervisory status of Peter Romero 13 Although Guerra was not asked the precise date on which Romero engaged Guerra in the above-described inquiries, it is clear from the record that the inquiry was made sometime in May 1966, subsequent to May 9, 1966, Romero asked Borja if he was thinking of joining the Union, condemned the Union as being made up of robbers, and recommended that Borja vote against the Union in the forthcoming election. Under paragraph 6(m) of the consolidated complaint, it is alleged that "On or about May 18, 1966, Shop Supervisor Peter Romero asked an employee if he knew about the Union and told the employee that if the Union came into the shop, the employees would work only 40 hours per week and that loans of money to employees by Respondent would cease, and instructed the employee that when he voted, he [Romero] wanted him to vote, no." The credible testimony of Respondent's aforementioned janitor Howard L. Ward" establishes that on or about May 18, 1966, but subsequent to May 9, 1966, Romero interrogated Ward and made the remarks to Ward as stated in the above-described allegation of the complaint. Under paragraph 6(q) of the consolidated complaint, it is alleged that "On or about May 25, 1966, Shop Supervisor Peter Romero told an employee that President Charles E. Mendez had instructed Romero to find out about the employee's union sentiments and how he was going to vote in the election and that he, Romero, was to tell employees that Mendez wanted them to vote against the Teamsters Union." The above allegations are in large part substantiated by the credible testimony of Respondent's aforementioned mechanic Guerra.12 Guerra's testimony, taken through a Spanish-speaking interpreter, is difficult to follow as it appears that the interpreter was sometimes not getting through to the witness, probably due to a difference in the Spanish dialects each spoke. Notwithstanding this, a careful reading of the testimony of Guerra, who is a reasonably intelligent person, shows that Romero engaged Guerra in a conversation sometime in May 1966 subsequent to May 9, 1966,13 and stated to him that, on the instructions of President Charles E. Mendez, he was inquiring of him and other employees in the shop as to their union sentiments. The record, however, does not support the remaining portions of the allegations here under consideration; namely, that Romero also made inquiry as to "how he [Guerra] was going to vote in the election, and that he, Romero, was to tell employees that Mendez wanted them to vote against the Teamsters Union." To the extent indicated, the allegation here under consideration is found to be substantiated by the testimony of Guerra. Under paragraph 6(v) of the consolidated complaint, it is alleged that "On or about June 1, 1966, Shop Supervisor Peter Romero asked an employee whether he had signed a card for the Union, and if anyone had made him sign a card; told the employee that if the Union came into the shop, the company would reduce the hours of the employees to 40 per week, that the shop employees would be sent home if there was no work to do, that such 1966 but subsequent to May 9, 1966, when the petition for election in Case 12-RC-2483 was filed When questioned by General Counsel, Guerra was first asked concerning conversations his shop supervisor, Armando Mendez, had with Mendez in 1966 1 or 2 days "after they had announced the elections at the shop " The record shows that Romero engaged Guerra in the above-reported inquiries as to his union sympathies after Mendez had spoken to him about the Union This establishes the date of Romero's inquiries of Guerra as to his union sentiments as sometime in May, but subsequent to May 9, 1966 REDWING CARRIERS 69 employees would have to work at night part of the time and that things would be different and employees would have to do more work." The credible testimony of Respondent's aforementioned Raymond C. Garcia,i4 a former painter-helper in Respondent's paint shop and one of the alleged discriminatees, establishes that Romero interviewed Garcia on the subject of unionism at the terminal on June 1, 1966, and again 2 or 3 days later and that during the course of these two interviews made the inquiries and remarks set forth in paragraph 6(v) of the consolidated complaint here under consideration, except that there is a failure of proof that Romero told Garcia as alleged in said paragraph that "things would be different and employees would have to do more work," if the Union came into the shop. Romero in his testimony denied telling any of Respondent's employees that he was making inquiries concerning their union sentiments at the request of President Charles E. Mendez. He also denied that President Mendez had ever asked him to make such inquiries of Respondent's employees. President Mendez in his testimony denied that he had talked to any of his supervisors about the union activities of Respondent's employees at the Tampa terminal. The Trial Examiner does not credit these denials of Romero and Mendez. Discussion and Conclusions Respondent in its brief concedes that the interrogations here under consideration "pertain to questions asked by employee Peter Romero," but appears to rest its defense to such interrogations solely on its contention that Romero "was not a Supervisor or agent of the Employer" and that accordingly the Respondent is not responsible for Romero's interrogations. As it was found in a prior section of this Decision that Romero was a supervisor and agent of Respondent at all times here pertinent, it follows from the above evidentiary findings and Respondent's admission that Romero made the alleged inquiries, and is here found, that Respondent engaged in unlawful interrogation of its employees through its shop supervisor, Peter Romero, substantially as alleged in paragraphs 6(j), (k), (m), (q), and (v) of the consolidated amended complaint in violation of Section 8(a)(1) of the Act. It is further found that the above unfair labor practice incidents are not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because they do not relate to employees in the drivers' unit involved in the objections to the election in Case 12-RC-2483 and also because the incidents did not create an atmosphere that made a free choice among the drivers improbable. Romero's interrogations here under consideration involved two mechanics, one janitor, one errand boy, and one painter-helper. As Romero's interrogations of the latter did not prevent the shop employees unit to which they apparently belonged from winning a representation election on July 18, 1966, it is evident that the described incidents did not affect the drivers in their separate election which the same Union lost. 9. Incident under paragraph 6(1) Under this paragraph it is alleged that "During May 1966 (the exact date being presently unknown), Respondent's Shop Foreman Armando Mendez told an employee that Respondent's President Charles E. Mendez did not want a union, and instructed the employee to vote against the Union." The credible testimony of the aforementioned mechanic Guerra, a Spanish-speaking witness who testified through an interpreter, substantially establishes that some time in May 1966 but subsequent to May 9, 1966, he was instructed by Shopwide Foreman Armando Mendez to vote against the Union and was told that President Mendez "wanted them [Redwing employees] to vote against the union." Discussion and Conclusions Respondent in its brief appears to admit the above incident,15 but through its concession that it was President Mendez' "practice to ask employees to vote against the Union," Respondent also appears to take the position that this practice of the Respondent's president is protected "free speech" under the provisions of Section 8(c) of the Act. It is not here necessary to decide whether an employer has the legal right to ask an employee to vote against a union in a Board-conducted election. The concern here is whether under all the circumstances the instructions of Shopwide Foreman Armando Mendez to mechanic Guerra interfered, restrained, or coerced him in the exercise of the rights guaranteed in Section 7 of the Act. I am of the opinion that the instructions by the foreman to the humble, Spanish-speaking mechanic Guerra on the authority of the company president, carried an implied threat of reprisal for failure to vote against the Union. Accordingly it is found that the statements here under consideration by Armando Mendez to Guerra are in violation of the provisions of Section 8(a)(1) of the Act. 10. Incidents under paragraph 6(o) and (p) Under paragraph 6(o) of the consolidated complaint, it is alleged that Respondent engaged an employee in unlawful interrogation as follows: "That on or about May 20, 1966, Respondent's Vice President Frank Kelly interrogated an employee as to which employees were behind the Union and asked the employee if anyone had approached him to sign a card, and asked such employee if he had signed a card." ' Under paragraph 6(p) of the consolidated complaint, it is alleged that Respondent under the same date also engaged an employee in unlawful interrogation through its Vice President Kelly as to "why the drivers wanted the Union" and that Kelly "thereafter told the employee that the company had already ordered new equipment, that the drivers were due another raise and promised he [Kelly] would try to do something about the dispatchers, and that the equipment would be replaced more frequently from then on." 14 Garcia's testimony was also discussed above in the section of this Decision dealing with the supervisory status of Peter Romero IS Respondent's brief, p 21 reads "A Spanish-speaking employee testified that Armando Mendez had told him that Charles Mendez wanted him to vote against the Union President Charles Mendez testified that it was his practice to ask employees to vote against the Union " 299352 0-70-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undisputed record shows that former driver Reginald Allen Guy made a personal application to Respondent's Vice President Kelly for a company loan on or about May 20, 1966, but subsequent to May 9, 1966. The creditable testimony of Guy establishes that during the course of his application to Kelly he was asked by Kelly why he needed the loan and that Guy replied that he needed money because he was not getting enough trips to make a living and that this and other working conditions was causing a union to be organized at the Tampa terminal. The credible testimony of Guy further establishes the allegations of paragraph 6(o) of the complaint that Vice President Kelly then asked Guy "as to which employees were behind the Union" and "if anyone had approached him to sign a card" and whether "he [Guy] had signed a card." The record further shows that Vice President Kelly at the same loan application interview questioned driver Guy about why the drivers wanted the Union and when told by Guy that the drivers were dissatisfied with company equipment and the way the dispatchers conducted their business, Kelly replied that the Company had already ordered new equipment, that the drivers were due another raise and promised he would try to do something about the dispatchers, and that the equipment would be replaced more frequently from then on. Vice President Kelly in his testimony admitted that driver Guy had personally applied to him on May 20, 1966, for a company loan, but denied that there had been any discussion about the Union with Guy as related by Guy in his testimony. I do not credit this denial. Discussion and Conclusions The record shows that the unnamed employee referred to in both of the above-indicated allegations is Respondent's former driver Edward Robert Marshall. The credible testimony of Marshall, who was in Respondent's employment from December 5, 1965, until July 17, 1966, establishes that Respondent's Vice President Pierola engaged him in a private conversation at the Tampa terminal on May 25, 1966, during which he made the interrogation and remarks attributed to him in the aforementioned paragraph 6(r) of the consolidated complaint. The further credible testimony of Marshall also shows that Vice President Pierola, not remembering that he had already spoken to Marshall about the subject, once again spoke to him about the Union on about June 6, 1966, when Pierola made the remarks attributed to him in the aforementioned subparagraph (z) of the consolidated complaint, except that Pierola did not, as far as the present record shows, again inquire as to how Marshall "felt about the Union" as alleged in subparagraph (z), as he had on May 25,1966. Pierola in his testimony admits that he spoke to Marshall on two separate occasions about the Union at or about the times stated by Marshall, but denies that he said anything to Marshall about the Union other than to call his attention to the fact of the forthcoming representational election. Pierola's testimony shows, however, that he had a heated discussion with Marshall about whether shippers desired to have their shipments delivered by union drivers. Pierola's denial that he did not make the remarks attributed to him in subparagraphs 6(o) and (z) of the consolidated complaint to the extent found above is not credited. Conclusion Credibility has been given to driver Guy's testimony over the denials of Vice President Kelly not only because Guy's demeanor was such as to inspire confidence but also because I am convinced from the detailed statements made by Guy at the hearing that he was substantially relating the questions and remarks put to him by Kelly. Accordingly it is found that the Respondent has engaged in unlawful interrogations and promises of increased benefits substantially as alleged in paragraph 6(o) and (p) of the consolidated complaint in violation of Section 8(a)(1) of the Act. 11. Incidents under paragraph 6(r) and (z) Under paragraph 6(r) of the consolidated complaint, it is alleged that on or about May 25, 1966, Respondent's said vice president, Pierola, "asked an employee how he felt about the Union; told such employee that the Teamsters are gangsters and hoodlums; that the employees would lose money if the Union won the election; that certain of Respondent's customers prefer to deal with nonunion carriers; that if the Union should come in a lot of employees would be out of work; and that such employee should vote against the Union." Under paragraph 6(z) of the consolidated complaint, it is alleged that "During the first week of June 1966 ... Respondent's Vice President Pierola asked an employee how he felt about the Union, told such employee that he hoped the employee would think carefully about an earlier conversation between Pierola and the employee when he voted, and that Respondent was depending on him." I find that the Respondent is in violation of Section 8(a)(1) because of the interrogation of and remarks made by Vice President Pierola to driver Marshall as found above. 12. Incidents under paragraph 6(s), (t), (w), (bb), and (cc) Under paragraph 6(s) of the consolidated complaint, it is alleged that "On or about the end of May 1966 ... Shop Foreman Armando Mendez told an employee that if the Union came into the shop, all employees would have to work harder and threatened that the company would keep strict record of time spent on work; the money put by Respondent into the employees profit-sharing plan would be cut off; the employees' loan fund would be cut off; no employee would be allowed to work overtime; and that the mechanics would have to purchase tools with their own funds in order to speed their work." Under paragraph 6(t) of the consolidated complaint, it is alleged that "On or about the end of May . Shop Foreman Armando Mendez asked an employee if anyone was trying to get such employee to join the Union." Under paragraph 6(w) of the consolidated complaint, it is alleged that "On or about June 3, 1966, Shop Foreman Armando Mendez asked an employee to tell him who the leader of the Union in the shop was, and interrogated the employee about the union sentiments of other employees and told him that the employees would not make as much money if the Union came in as they thought, because the work week would be reduced to 40 hours and the employees would lose the Respondent's profit-sharing plan." REDWING CARRIERS 71 The record shows that the unnamed employee referred to in each of the above-indicated allegations is the heretofore mentioned Jose F. Borja16 who has been in Respondent's employment for the past 2 years as a mechanic. The credible testimony of mechanic Borja establishes that Shopwide Supervisor Armando Mendez spoke to him on May 10, 1966, and said to him at that time all the statements attributed to Armando Mendez in paragraph 6(s) of the consolidated complaint as set forth above. Borja's testimony also credibly shows that Supervisor Armando Mendez again spoke to Borja in the middle of June 1966 when he asked Borja if anyone was trying to get him to join the Union. This testimony supports the allegations of paragraph 6(t) of the consolidated complaint. At the very same time that Armando Mendez made the above inquiry of Borja, it is also established by the credible testimony of Borja that Armando Mendez asked Borja to tell him who the leader of the Union in the shop was, and interrogated Borja about the union sentiments of other employees and told him that the employees would not make as much money if the Union came in as they thought, because the workweek would be reduced to 40 hours and the employees would lose the Respondent's profit-sharing plan. This accords with the allegations of paragraph 6(w) of the consolidated complaint. Armando Mendez in his testimony flatly denied that he made the statements and interrogations attributed to him by Borja as set forth above. I do not credit these denials. I am convinced from the straightforward and detailed testimony of Borja that he was accurately stating the actual facts. This impression came through strongly despite the fact that his testimony was labored and strained because of the difficulty the interpreter had in conveying questions and answers to and from Borja due to the fact that he apparently spoke a different dialect than the Spanish interpreter was best familiar with. Under paragraph 6(bb) of the consolidated complaint, it is alleged that "On or about June 13, 1966, Shop Supervisor Tony Mendez told a shop employee that after the union matter was over, everyone would be making good money." The record identifies the unnamed employee referred to in the above allegation as the same mechanic Jose F. Borja referred to above. The credible testimony of Borja establishes that Shop Supervisor Tony Mendez some time in mid-May 1966 asked Borja "if he was making enough money with the last raise." Upon receiving a noncommital response, Mendez told Borja, "Don't worry . . . after this thing is over from the union, everyone will earn good money." This last credited remark by Mendez to Borja substantially accords with the allegations of paragraph 6(bb) of the consolidated complaint. Supervisor Tony Mendez, whose true name is Anthony Mendez, admitted in his testimony that he had had a talk with Borja about the Union in mid-May 1966 about 2 weeks prior to the then scheduled representation election and admits that he told Borja at that time, "maybe, after election we might all get a raise," but denies that he made the statement attributed to him by the allegation of the complaint here under consideration. The above-related conversation between Supervisor Tony Mendez and Borja took place in the presence of Respondent's long-term employee, mechanic Angel Guerra, heretofore referred to in connection with other issues. Mendez admits that Guerra was present when he spoke to Borja. The credible testimony of Guerra corroborates Borja's testimony that Mendez made a statement to him substantially in accord with the allegation of the complaint here under consideration. Tony Mendez' denial that he made the statement is not credited. Paragraph 6(cc) of the consolidated complaint is similar to the aforementioned paragraph 6(bb) and reads as follows: "On June 17, 1966, Shop Supervisor Tony Mendez told an employee [Borja] in the presence of another employee [Guerra] that when the union matter was over, everyone would be making good money." It is found that the foregoing findings also substantiates the allegations of paragraph 6(cc) of the consolidated complaint. Conclusions The credibility issues having been resolved as stated above, it is accordingly found that Respondent is in multiple violation of Section 8(a)(1) of the Act by reason of the interrogations and remarks made by Supervisors Armando Mendez and Tony Mendez on the dates indicated to Respondent's employee Jose F. Borja in substantial accordance with the allegations of paragraph 6(s), (t), (w), (bb), and (cc) of the consolidated complaint. It is further found that the above unfair labor practice incidents are not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because they do not relate to an employee in the drivers unit involved in said Case 12-RC-2483. The employee involved in the incidents, Jose F. Borja, is a mechanic, not a driver. 13. Incident under paragraph 6(n) Under this paragraph, it is alleged that "On or about May 30, 1966, Shop Supervisor Peter Romero told an employee that if the Union came in, the company would no longer loan money to employees, and that was why he wanted the employees to vote against the Union." The above alleged incident was found to have occurred as heretofore indicated in an earlier portion of this Decision in which it was determined that the incident had some bearing on the status of Romero as a supervisor within the meaning of the Act. In the same earlier portion of this Decision it was also determined that Romero was a statutory supervisor. For purposes of the issue here under consideration, it is found that the credible testimony of the aforementioned Howard L. Ward, a janitor at Respondent's Tampa terminal, establishes that Romero told him on May 18, 1966, that if the Union came in, the Company would no longer loan money to its employees as it had in the past and that he wanted Ward to vote "No" at the forthcoming representation election. I find that janitor Ward's testimony substantially supports the aforementioned allegations of paragraph 6(n) of the complaint. Discussion and Conclusion Respondent's principle and apparently sole defense to the above-incident is that Romero lacks status as a supervisor. Inasmuch as determination has been made 16 Borria's testimony was discussed above in the section of this Decision dealing with the supervisory status of Peter Romero 72 DECISIONS OF NATIONAL LABOR REL."JTIONS BOARD above that Romero had supervisory status at the time he made the statements here in question to janitor Ward, it is found that the above-described statements constitute a violation of Section 8(a)(1) of the Act. I further find that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because the incident does not relate to an employee in the drivers unit involved in said Case 12-RC-2483. See Goodyear Tire and Rubber Company, supra. 14. Incident under paragraph 6(u) Under this paragraph, it is alleged that "On or about May 30, 1966, Shop Supervisor Peter Romero said, in the presence of an employee, that he had intended to let the employee go because he had signed a union card." The parties do not appear to have briefed the evidence, if any, under this allegation. I have not been able to find evidence relating to the alleged incident in the mosaic of testimony reflected in the long record of this proceeding. Accordingly, the portion of the complaint here under consideration is hereby dismissed for failure of proof. 15. Incident under paragraph 6(y) Under this paragraph, it is alleged that "On or about June 5, 1966, Shop Foreman Armando Mendez told an employee that if the Union came into the shop, Mendez would cut the hours of work to 40 per week and would cut the pay of the shop employees; the shop employees would lose the Respondent's profit-sharing plan; Mendez would put a timekeeper in the shop to ascertain the time taken by employees on each project; Mendez would lay off some employees and obtain some good employees and would force the shop employees to begin working three rotating shifts so that shop employees would have to take turns working at night; and Mendez would force the mechanics to repair machinery previously repaired by them on their own time without pay." The record identifies the unnamed employee referred to in the above allegation as Felix Perera, a mechanic who had been in Respondent's employment for the past 10 years. Perera, a Spanish-speaking person, speaks no English. His testimony was taken with great difficulty through an interpreter, the difficulty stemming from the fact that Perera spoke a Spanish dialect different than the Spanish the interpreter appeared to be accustomed to. Notwithstanding this language difficulty, the credible testimony of Perera, which appeared to be patently honest and painstakingly detailed, establishes that his supervisor, Armando Mendez on June 5,1966, during a lunch period in an automobile made all the statements to him (Perera) attributed to Mendez under the above-stated allegations of subparagraph (y) of paragraph 6 of the consolidated complaint. Armando Mendez admitted talking to mechanic Perera on or about June 5, 1966, in an automobile and that he made at least two of the statements attributed to him in the portion of the complaint here under consideration, but flatly denied that he made the other indicated statements. These denials are not credited. Conclusions The credibility issues having been resolved as stated above, it is accordingly found that Respondent is in violation of Section 8(a)(1) of the Act by reason of the statements made by Supervisor Armando Mendez to employee F,.lix Perera on June 5, 1966, in substantial accordance with the allegation of paragraph 6(y) of the consolidated complaint. Inasmuch as Perera is a mechanic , not a driver, it is further found that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because they do not relate to an employee in the drivers unit involved in said Case 12-RC-2483. 16. Incident under paragraph 6(dd) Under this paragraph, it is alleged that "On or about June 12, 1966, Shop Foreman Armando Mendez informed an employee that Charles E. Mendez had stated that he [Mendez] knew that such employee was working for the Union; and that he [Armando Mendez] did not want the employee to be fired; and such employee should not get mixed up with the Union because it would not benefit him and because Charles E. Mendez is against the Union." The unnamed employee above referred to is also the above-mentioned mechanic Felix Perera, the Spanish- speaking witness who testified through an interpreter. The interpretation of the testimony of this witness came through with great difficulty because of the confusion of pronouns, but from the combination of Perera's direct and more particularly his testimony under cross-examination, the following facts are reliably established. Felix Perera, a mechanic, and his supervisor Armando Mendez are friends of longstanding. Armando Mendez has been with the Company for 14 years and Perera for 10 years. Armando has a very high regard for Perera's mechanical abilities and knowledge of how the mechanic's shop at the Tampa terminal operates. On June 23, 1966, Armando Mendez called Perera into his office and informed him that President Charles Mendez had information linking Perera with union activity. He pleaded with Perera not to get mixed up with the Union since President Mendez was opposed to the Union, as it could lead to Perera's discharge which he, Armando Mendez, wanted to avoid because Perera was the most valuable mechanic the Company had in its mechanic's shop. Armando Mendez' denial of the above-described happenings of June 23,1966. is not credited. Conclusion The credibility issue having been resolved as stated above, it is accordingly found that Respondent is in violation of Section 8(a)(1) of the Act by reason of the statements made by Supervisor Armando Mendez to employee Felix Perera on June 23, 1966, in substantial accordance with the allegations of paragraph (dd) of the consolidated complaint. Inasmuch as Perera is a mechanic, not a driver, it is further found that the unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because they do not relate to an employee in the drivers unit involved in said Case 12-RC-2483. 17. Incident under paragraph 6(ee) Under this paragraph, it is alleged that "On or about June 1, 1966, Shop Foreman Armando Mendez, in the presence of Shop Supervisor Peter Romero, told an employee that, if the Union came into the shop, the employees would lose the Company profit-sharing plan; the hours of the employees would be reduced to 40 per REDWING CARRIERS week; loans of money to employees would cease; and further told such employee that he was going to talk to every employee about the Union." The record identifies mechanic Eric A. Blanton as the unnamed employee referred to in the above allegation. Blanton was employed by Respondent as a mechanic from November 15, 1965, to August 5, 1966, when he voluntarily left the Company's employment. The credible testimony of Blanton shows that on or about June 1, 1966, his supervisor, the aforementioned Armando Mendez, called Blanton into his office and there made to Blanton the statements attributed to him in the above-quoted charge of the complaint. Armando Mendez in his testimony could not recall whether or not he had the above-reported conversation with Blanton at the indicated date, but categorically denied that he had made the statements in question to Blanton. I do not credit these denials. Discussion and Conclusion Additional support for the resolution of the credibility issue here resolved is the evidence that Shop Supervisor Armando Mendez also made statements similar to those attributed to him above to other Redwing employees, as heretofore found. Conversely, the present incident also supports aforementioned allegations of the complaint attributing similar statements by Supervisor Armando Mendez to other Redwing employees. Accordingly it is found that Respondent is in violation of Section 8(a)(1) of the Act by reason of statements made by Supervisor Armando Mendez to employee Eric A. Blanton on June 1, 1966, in substantial accordance with the allegations of paragraph 6(ee) of the consolidated complaint. Inasmuch as Blanton is a mechanic, not a driver, it is further found that the above unfair labor practice incident is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because they do not relate to an employee in the drivers unit involved in said Case 12-RC-2483. G. Issues as to Alleged Discriminatory Discharge of M. Vicente Gomez The Company discharged M. Vicente Gomez, one of its drivers, on May 12, 1966. The complaint charges that the termination was a discriminatory discharge in violation of Section 8(a)(3) and (1) of the Act. Respondent's defense to the charge is that Gomez was discharged "because of poor performance." Gomez commenced his employment with Respondent as a driver out of its Tampa terminal some 6 months before his discharge of May 12, 1966. He worked under the supervision of Alva Kent, chief dispatcher of some 70 drivers in the Company's dry commodity department. Kent in turn worked under the supervision of Gilbert C. Pierola, Respondent's vice president in charge of operations. The testimony of Gomez, Kent, and Pierola herein relate to the circumstances under which Gomez was terminated. Additionally, the testimony of Dan H. Hanson, onetime logman, Saturday dispatcher, and paymaster" for Respondent, is also relevant to the issue of whether Gomez was discriminately discharged. In a previous section of this Decision, it was determined that 73 Hanson was a statutory supervisor during the tenure of his employment with Respondent. Gomez signed a union authorization card in late March or early April 1966 after solicitation by a union business agent and thereafter became active more than any other Redwing driver in efforts to organize Respondent's Tampa terminal drivers. As a result of his efforts, some 75 to 85 out of the approximately 200 drivers at the Tampa terminal signed union authorization cards. Gomez was one of 12 drivers assigned to Respondent's shipper account known as National Phosphate which mined phosphate at mines in Polk County, Florida, for use as fertilizer. The phosphate is loaded on Respondent's trucks at the mines and transported by its 12 drivers to a public terminal in Tampa for further transportation by water barges. Respondent's drivers are paid for their work on the basis of a flat sum for each load they deliver. The sums received by Gomez for his work was fixed from $4.05 to $5.05 per load, depending upon the distance involved. The weekly earnings of each driver varies in accordance with his individual capacity to deliver as many loads as possible in each 12-hour shift. Because of daytime traffic, the drivers on the day shift deliver fewer loads in a 12-hour shift than the night crew. Gomez worked the day shift. Gomez was "set up" by his supervisor-dispatcher, Alva Kent, to run 4 loads of phosphate per 12-hour shift or approximately 24 loads per 6-day week from two nearby mines in Polk County to the aforementioned public terminal in Tampa. According to the credited testimony of Supervisor Kent which Gomez did not deny, Gomez averaged only 14 to 16 loads or runs per week as against an average of 22 to 24 trips per week by other drivers on the day shift. The combined testimony of Kent and Gomez shows that Kent spoke to Gomez several times about his poor performance record. Kent also discussed Gomez' lowrun record with Operational Vice President Pierola. Sometime in April 1966, the truck assigned to Gomez was found parked and unattended for hours at a certain junction between the phosphate mines and Tampa. This was reported to Vice President Pierola by a supervisor at the Tampa public terminal to which, as noted above, Respondent transported the phosphate from the mines. Gomez admits the incident but states that the truck was left at the junction at his request by the night driver before his day shift started in order to give Gomez the opportunity to see a doctor that day about a back injury. He explained that his long delay in getting to the truck at the junction was caused by the long time he had to wait to see his doctor. Gomez admits, however, that he never notified the Company that he was going to take time off from his driving to see a doctor. Vice President Pierola reported the parked-truck incident to Supervisor Kent who in turn warned Gomez about such conduct. The Respondent from time to time received similar complaints about Gomez from the official at the Tampa public terminal in charge of coordinating phosphate shipments received from the mines by Respondent's trucks with outward movements of the phosphate from the Tampa terminal by barges. One of Respondent's drivers in late April 1966 reported Gomez' union activities to the aforementioned logman and Saturday dispatcher, Dan H. Hanson, who, in turn reported the information to Respondent's Vice President 10 Hanson was Respondent's paymaster only in the sense that he distributed paychecks to Respondent's drivers 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pierola. Pierola's denial that he received this information from Hanson is not credited. Shortly thereafter on April 29, 1966, when Gomez called on Hanson , who also had the duty of distributing paychecks, for his check, Hanson told Gomez that he had received information that Gomez was passing out union cards and that he had reported this to Vice President Pierola. Gomez denied the report and expressed great fear that the report would lead to his discharge. As Hanson and Gomez were discussing the matter, Pierola came by and was drawn into the discussion. Pierola asked Gomez into his private office where he repeated the story he had heard that Gomez was passing out cards. Gomez expressed grave apprehensions that this report would lead to his discharge. Pierola gave Gomez assurances that he did not have to worry about the accusations and that he would not be discharged on its account. The contents of other remarks and questions put by Pierola to Gomez on this occasion are reported above under the section of this Decision entitled "2. Incident under paragraph 6(b)." The next day, April 30, 1966, Gomez received a message at the Tampa public terminal as he was unloading a load of phosphate, to telephone his supervisor-dispatcher, Kent, at Respondent's River Road terminal . As Kent was not in when he called, Gomez' call was transferred to Charles Mendez, Jr., presumably the son of President Charles E. Mendez, who instructed Gomez to pick up a load of "super phosphate" at a mine of a shipper other than National Phosphate which Gomez had been serving almost exclusively, and to take the load to the Tampa public terminal . Super phosphate, also a fertilizer, is much finer, denser, and compact than rock or ordinary phosphate and for this reason it may take from 1-1/2 to 2 hours longer to unload, as unlike rock phosphate, super phosphate does not flow easily through the open gate of a trailer. To get the "super" to flow from the trailer in unloading, it is necessary to strike the bottom of the trailer with a sledge hammer. Ordinary phosphate will usually flow by itself once the trailer gate is opened. As Respondent's drivers are paid by loads handled rather than on a time basis, the record supports the conclusion that drivers assigned to handle rock phosphate are reluctant to handle super phosphate. The evidence shows that Respondent assigns new equipment for the transportation of the fast-flowing rock phosphate and uses older equipment for super phosphate. Gomez' regularly assigned equipment in 1966 prior to his termination on May 12, 1966, was a 1965 tractor and trailer. Gomez declined young Mendez' instructions to take the load of super phosphate. On his way back to Respondent's Tampa terminal, Gomez encountered Kent who inquired whether he had received his message to pick up the load of super phosphate and reinstructed Gomez to this effect. Gomez again declined. Later at Respondent's Tampa terminal, Kent insisted that Gomez make the delivery in question and an argument ensued as to whether Gomez was obliged to obey Kent's instructions on this. Gomez appealed to Vice President Pierola who told Gomez he was leaving the decision to dispatcher Kent. The final upshot of this argument was that Gomez declined to pick up the load of super phosphate on the ground that it was outside the scope of his regular assigned duty which for all of his 6 months' tenure with Respondent, except his first 3 weeks of employment, was 18 Kent in his testimony substantially corroborates Gomez' testimony in this respect to haul rock phosphate and not super phosphate. He also declined to take the load of "super" on the ground that he was within an hour or so of the end of his 12-hour shift. To carry out the assignment would have taken Gomez well beyond his 12-hour shift. The evidence reveals that Gomez' underlying reason for refusing to handle the load of super phosphates here in question was that it would require 1 to 2 hours of his time beyond that required for the delivery of ordinary phosphate for which he would receive no extra compensation. In the end Supervisor Kent backed down on his demand that Gomez take the load of super phosphate and Gomez thereafter continued to haul ordinary phosphate. Some 10 days later on May 12, Gomez' truck developed a flat tire. The man who came out from the terminal to repair the flat noted that the truck also needed other repairs and asked Gomez to bring the truck in for such repairs as soon as he had completed his delivery. Upon returning to the terminal, Gomez was asked by Supervisor Kent how many deliveries he had made that day and Gomez explained that the flat tire and necessity for other repairs had cut into his deliveries. Thereupon, Kent walked around Gomez' truck and finally coming up to Gomez, said, "Gomez, they have been on my back and I have to let you go." When Gomez asked why he was being discharged, Kent replied, "They claim that you are not making enough trips and either you go or me."'s Under cross-examination, Kent admitted that he had fired Gomez under pressure from Vice President Pierola. In a prior portion of this Decision,19 there was reported a conversation between Respondent's vice president, Frank Kelly, and former driver Reginald Allen Guy as a result of it which was found that Respondent had engaged in multiple violations of Section 8(a)(1) of the Act. In connection with the same conversation but unreported above, Government counsel asked driver Guy: "Did he [Vice President Kelly] say anything else about the labor problem at Blythe Motor Lines [Respondent's wholly owned subsidiary] ?" Guy's credited answer was: "Well, he, in a fashion where you couldn't accuse him of coming right straight out and bragging about anything, but he gave me the understanding that, after they found out who the instigator of the union was, they were no longer there." Vice President Kelly in his direct testimony as elicited by Respondent's counsel did not deny the above testimony by driver Guy, but sought to avoid either a denial or affirmance thereof when Respondent's counsel squarely put the question to him, "Mr. Kelly, in this conversation with Mr. Guy on May 20, 1966, did you tell Mr. Guy that the instigator of the union at Blythe was no longer at Blythe?," as is evident from Mr. Kelly's reply thereto as follows: A. I think at that particular time, as I recall it now, he [Guy] asked me the question about ... the Blythe employees, and at that time I brought out the fact that ... none of the people that were on strike were ... re- employed because they didn't even come back for ... ajob.... I infer and find from the above-quoted combined testimony of driver Guy and Vice President Kelly and from all of the 8(a)(1) and (3) violations found herein and from Redwing's well-known efforts over many years to prevent 19 See above subtitle captioned "10. Incidents under paragraphs 6(o) and (p)." REDWING CARRIERS the organization of its employees that Respondent pursued the deliberate policy of firing all known or suspected union activists among its employees. I further find and conclude from the above evidentiary facts that driver Gomez, the alleged discriminatee, was the chief instigator of the attempt to organize Respondent's drivers at its Tampa terminal and that Respondent knew or suspected the fact. Discussion and Conclusions I find and conclude that Respondent's driver M. Vicente Gomez was discharged on May 12, 1966, because of his union activities. The record is clear that Respondent had information as early as April 29, 1966, that Gomez was passing out union cards. This information was first conveyed by a fellow driver to Supervisor Hanson who lost no time in immediately relaying the report to Vice President Pierola. Hanson even informed Gomez on April 29 that he had this report about him and on the very same day Vice President Pierola and Gomez engaged in conversation about the matter. At that time Pierola significantly made no reference to Gomez' performance record, but assured him that his job was assured notwithstanding the report that Gomez was passing out union cards. Despite this assurance, it is evident that the Company took steps the very next day to provide a pretext for firing Gomez for his union activities when it ordered him to haul a load of super phosphate at almost the end of his 12-hour shift and, more importantly, contrary to his normal assignment to haul and deliver the less time consuming and more desirable ordinary phosphate, since Respondent paid its drivers, including Gomez, on the basis of delivered loads rather than by the hour. This order was also contrary to the Company's policy not to use new equipment, such as that assigned to Gomez and 11 other drivers, for the transportation of super phosphate. There was no showing at the hearing by Respondent as to the business necessity of making the assignment under discussion to Gomez. Although Gomez declined to take the load of super phosphate, the Company did not at that time elect to discharge Gomez for his refusal. This was probably because the Company felt that a discharge for a refusal to handle an item of distasteful work outside of Gomez' regular and normal assignment on the day following the very day it had information that Gomez was passing out union cards and at nearly the end of his shift would appear too pretextual to hold up against a charge of a discriminatory discharge. But it is evident from the record as a whole that the decision was made to terminate Gomez as soon as his union activities became known to Respondent's management. This decision was carried out some 2 weeks later on May 12 when Supervisor Kent apologetically discharged Gomez with the statement "Gomez, they have been on my back and I have to let you go. . . . They say you are not making enough trips and either you go or me." It is thus evident that the decision to fire Gomez for the alleged reason of poor performance did not come from Gomez' immediate supervisor, Kent, and that Kent himself did not feel that Gomez' low performance justified his discharge. Kent's testimony also shows that he terminated Gomez on orders or pressure from Vice President Pierola. The record shows that Respondent followed the practice of discharging union "instigators." Gomez was a known union "instigator." The record further shows (as found 75 above) that .Respondent engaged in a series of unlawful acts in violation of the rights to self-organization guaranteed to employees under Section 7 of the Act. Although an employer has the legal right to express antiunion attitudes to its employees, Respondent's bitter denunciation and outright opposition to the Charging Party herein, as expressed by high officials of the Company in speeches to its employees at meetings called by the Employer, is one of the factors, among many, appropriate for consideration in determining the real motive for Gomez' discharge. Respondent has been opposing the Union since 1949. From these factors and from the demeanor of the witnesses, I conclude that the low production reason advanced by Respondent for Gomez' discharge is pretextual and that the real reason for his discharge was his union activities. H. Issue as to Alleged Discriminatory Discharge of Armando M. Diaz Armando M. Diaz, hired as a mechanic at the Tampa terminal on October 4, 1964, was discharged by Respondent on June 8, 1966. The complaint alleges that the discharge was discriminatory. Respondent's defense is that Diaz was "discharged because he said he wanted to leave the Company as soon as he found another job and because he was subordinate." Diaz is a first cousin to the brothers Mendez, to wit: President Charles E. Mendez; Vice President William (Bill) Mendez; Shopwide Supervisor Armando Mendez: and Shop Supervisor Anthony (Tony) Mendez. The evidence shows that the aforementioned Mendez brothers are a close-knit family who have been engaged in the operation of Redwing under the leadership of Charles E. Mendez for many years. Each of the Mendez brothers, following the lead of President Charles E. Mendez, are opposed to the unionization of Redwing employees. Prior to his employment with Respondent, Diaz held a job with a wholesale bread company as supervisor of its fleet of trucks. In that position he had 6 years' experience in union negotiations in behalf of management. The record shows that Diaz signed a union authorization card while in the employment of Respondent on March 26, 1966. The record further shows that Diaz was active in inducing other mechanics in the Tampa terminal to join the Union. Because of his familiarity with the way unions operate, a number of Diaz' colleagues sought his advice as to the benefits that might accrue from union membership. Diaz attended a number of union meetings which were also attended by Raymond C. Garcia and Robert A. Gonzalez, alleged discriminatees under the complaint. Diaz was hired to work for Respondent by Shopwide Supervisor Armando Mendez. On June 8, 1966, 2 days before his discharge, Diaz was engaged by Armando Mendez in a conversation on the subject of unions. There is a conflict in the record as to precisely what was said on the subject of unionism by Diaz and Armando Mendez, but the record is clear that Diaz expressed views of confidence in unions and that Armando Mendez expressed profound doubts about the value of a union for employees. It is found that this conversation gave Respondent knowledge of Diaz' union sympathies and grounds for suspecting that Diaz was engaged in union activities at the terminal. Felix Perera, who has been in Redwing's employment for 10 years, is Respondent's oldest mechanic in point of seniority and he and Diaz were fellow workers in the 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mechanical shop during Diaz' tenure with Redwing. Perera, knowing that Diaz had had long experience with unions in prior employments, inquired of Diaz from time to time as to how unions operated and as to the benefits that might accrue to Respondent's employees if they were represented by a union. Perera's testimony establishes that he was made aware by Shopwide Supervisor Armando Mendez that news of union activities among Redwing employees became known to President Charles Mendez through the medium of an informer. The day after Diaz was discharged, Perera, noting Diaz' absence, inquired of Armando Mendez as to Diaz' absence, and was told that "Diaz had gone bye-bye for having a big mouth." From the record as a whole which includes evidence of Respondent's extreme sensitivity to union activities among its employees, it is found that Respondent had reason to believe or suspect that Diaz was engaged in union activities at its Tampa terminal more than 2 weeks prior to his discharge. Some 2 weeks before his discharge and at a time Respondent already had reason to suspect Diaz of union activity, Diaz was offered the foremanship of the mechanical shop at Respondent's Jacksonville, Florida, terminal. The offer was made to Diaz by Supervisor Peter Romero at the request of Redwing's president, Charles Mendez. Diaz declined the offer as he did not wish to move to Jacksonville. On June 7, 1966, the day before Diaz was discharged, President Charles Mendez summoned Diaz to his office and after taking him to task for reports he had of derogatory remarks Diaz had made of the Company and members of the Mendez family, stated that he was making Diaz night foreman of the mechanical shop as he was dissatisfied with the then night foreman. Replying to the charge that he made such derogatory remarks, Diaz stated he "didn't know whether he made such remarks or not," but admitted that he "might have said something like that in the shop" because of the Company's inadequate tools for the repair of equipment. From Diaz' own testimony I infer and find that he did make derogatory remarks concerning the Company and certain members of the Mendez family in managerial positions with Redwing. Replying to the offer of the night foremanship, Diaz flatly rejected the offer on the ground that he had a strong preference for the day shift on which he was working. Mendez countered that as Diaz didn't want the night foreman's job, he would in any event put him on the night shift as an ordinary mechanic. Pressed in this manner, Diaz replied that he had a wife and three children and even though he didn't like working at night, he would have to take the night job, if that was what President Mendez wanted, but he wanted Mendez to know that he "wasn't going to be happy at it" and that as soon as he could, he would find himself another job. Mendez then called his brother Bill to put Diaz on the night shift, but because of bookkeeping difficulties in putting Diaz on the night crew before the beginning of a next workweek, President Mendez sent Diaz back to his day-time job and said he would speak to him the next day. The next day, June 8, Diaz was again summoned to President Mendez' office. There is a conflict of testimony as to precisely what took place at the conference. Mendez testified that he told Diaz 10 No inference of any illegal antiunion behavior on the part of Respondent is intended by this reference to Respondent's opposition to the Union's attempt to organize Blythe Motor Lines, he was putting him on night at an increase in wage and that Diaz replied that he didn't want to work nights and was resigning immediately. Mendez further testified that he told Diaz, "In that case, you might as well finish out the day and resign," but that Diaz insisted upon resigning then and there and did so. On the other hand, Diaz' testimony shows that President Mendez on the day of his discharge called him, into his office and told him that since it appeared from his conversation with him of the preceding day that Diaz "wasn't going to be happy working at night ... it would be best for" Diaz to leave "because he [President Mendez] didn't care to have anybody working for the company that wasn't happy." Mendez also said "Besides, you think I am nothing but a thief." Diaz replied, "Wait a minute. I never made a statement like that. If you want me to leave, I will leave, but don't say that I said anything like that." Mendez ended the conversation by saying "Well, no sense in arguing about it." From my observation of the demeanor of the witnesses and the entire record, I credit Diaz' above version of his discharge. In his testimony under cross-examination President Mendez gave as his sole reason for discharging Diaz the declaration that Diaz made to him that he was "going to quit the minute he got another job." In further explanation of the discharge, Mendez testified that "I don't want anybody working for us if a man tells me he is just going to work for a period of time." It will be considered below whether this constituted the real reason for the discharge of Diaz. The record establishes through the testimony of President Mendez that it takes the Company at least 6 weeks to train a new mechanic in the operations of its mechanical shop before he can be fully effective in his work. President Mendez' testimony further establishes that he considered Diaz a good mechanic and that the Company was "always trying to get good mechanics." Mendez' testimony under cross-examination also shows that such derogatory remarks as Diaz had made about the Company and members of the Mendez family did not play a part in Diaz' discharge. Discussion and Conclusions The record as a whole shows that Respondent has had many years of experience in opposing any union organization of its employees and that it has been willing to lose tens of thousands of dollars to combat the Union's attempt to organize its wholly owned subsidiary, Blythe Motor Lines, Inc.20 The record further discloses that Diaz had been actively engaged in attempts to organize his fellow workers in the mechanics shop for some weeks prior to his discharge. The record is also clear that Respondent received information of union activities among its employees through at least one informer some weeks in advance of Diaz' discharge. The record also shows that Diaz disclosed his union sympathies and attitudes directly to one of the Mendez brothers, Shopwide Supervisor Armando Mendez, just 2 days before his discharge. From all these facts and the above findings of numerous 8(a)(1) violations, it is Inc. It is merely cited to show the extent of Respondent's involvement in opposing union shops at its terminals. REDWING CARRIERS 77 inferred and found that Respondent had knowledge or suspicion of Diaz' union activities for some weeks prior to his discharge. The finding noted above in connection with the consideration of the discharge of M. Vicente Gomez, to wit, that Respondent follows the policy of rooting out union "instigators," is also pertinent here. The record supports the inference and conclusion that Respondent sought to deflect Diaz' union activities by offering him a foreman's position at its Jacksonville terminal. This offer was made to Diaz by Supervisor Peter Romero at the request of President Mendez. When this attempt failed because of Diaz' refusal to accept the offer, President Mendez tried again to divert Diaz from his union activities by personally offering to make him night foreman of the mechanics' crew of the Tampa terminal. When this also failed, it is evident that Mendez sought to force Diaz to quit by peremptorily transferring him to the night crew as an ordinary mechanic, knowing full well Diaz' dislike of a night job. When Diaz gave in to this, but only after he had told his cousin, President Mendez, that he would quit the moment he could find another job, Mendez on the very next day outrightly discharged Diaz. Mendez gave no sound business reason for wanting to assign Diaz to the night crew as an ordinary mechanic or as to why he selected Diaz out of the day crew of some 24 mechanics for the transfer. There is no evidence that he caused the transfer of any other daytime mechanic to the much smaller night crew. The evidence shows that Diaz was a good mechanic and that Respondent was having a hard time recruiting good mechanics. Under these circumstances, it would appear that Respondent, following its own best interests, would have wanted to retain Diaz on the day shift where he was and wanted to be, and to have looked elsewhere for a night mechanic, if it really needed one. Mendez stated under cross-examination that he fired Diaz solely because Diaz had announced he would quit the night job as soon as he could find another job because he (Mendez) didn't want anyone working for the Company who contemplated quitting. In view of the fact that the Company found it hard to get good new mechanics and also because newly hired mechanics require 6 weeks of orientation on the job before they became fully effective, it appears that Mendez' avowed reason for discharging Diaz before he found a replacement was not the real reason for Diaz' discharge. Under all the circumstances of record, I find that Respondent's avowed reason for Diaz' discharge was pretextual and that Diaz was discharged because of his union activities which Respondent found it could not curb in any other way. I further find that the unfair labor practice involved in the discharge of Diaz, despite the fact that he was a mechanic and not a driver, is relevant to the objections to the election held for drivers in Case 12-RC-2483 in this consolidated proceeding because it created an atmosphere that made a free choice among drivers improbable due to the fact that Diaz was articulate and a blood relative of the managing Mendez family of Respondent. 1. 8(a)(1) Issue as to the Discharge of Henry P. Savage The complaint charges the Respondent with the unlawful termination of the employment of Henry P. Savage "because the said employee stated that he would report a grievance between himself and Respondent to the National Labor Relations Board" and that the Respondent by such act "did interfere with, restrain and coerce, and is interfering with, restraining and coercing" said employee in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) ... of the Act."2' Henry P. Savage, presently 63 years old, was hired by Respondent on October 10, 1963, to work in its stockroom and as an errand boy, at its Tampa terminal. He was terminated on June 1, 1966, after a little over 2-1/2 years of employment under the circumstances hereinafter related. Savage's supervisors were the brothers William (Bill) and Armando Mendez, heretofore identified as Respondent's vice president and shopwide supervisor, respectively. Savage also took orders from Enovaldo Diaz, more commonly known as Eddie Diaz 2' and Charles Rumore. From the record as a whole, it is found that Diaz was more or less in charge of the stockroom23 at all times here pertinent; Charlie Rumore's position in the record is described as "stockroom boy." Diaz is a first cousin to President Charles Mendez and is related by marriage to Vice President Gilbert Pierola. Diaz commenced his employment at Respondent's Tampa terminal in April 1966, only some 2 months before Savage's discharge of June 1, 1966, but had had 3 years of prior employment at Respondent's Jacksonville terminal. One of Savage's duties was to pick up parts from various auto part supply houses in Tampa, as ordered by the stockroom, usually by telephone. The Company also entrusted Savage with the making of Respondent's bank deposits. Savage used a company car or truck for these purposes and combined the making of company bank deposits with the picking up of auto supply parts. Orders for the pickup of auto parts were sometimes complex because of the diversity and number of the parts ordered, and because orders were not infrequently placed by telephone without Savage's knowledge after he had started out on his round of pickups. There is some evidence that Savage, during the course of his 2-1/2 years of employment with Respondent, would occasionally overlook picking up an item among the many he was to pick up at supply houses pursuant to order, but the evidence on this is vague. Shopwide Supervisor Armando Mendez recalled two or three instances of these events which had come to his attention from the supply houses. He also testified that he had received similar information from stockboy Rumore. On the other hand, Rumore, who had worked in Respondent's stockroom during all of the period that Savage was there, could recall only two such instances in Savage's 2-1/2 years of employment with Respondent. Savage in his testimony denied that there had been any instances of this. From the 21 It should be noted that the complaint does not charge the Respondent with a discriminatory discharge of Savage under the provisions of Section 8(a)(3) Accordingly, employer knowledge of union activity on the part of Savage , if any, is not material to the issue of whether the discharge of Savage constitutes a violation of Section 8(a)(1) of the Act 22 The Enovaldo or Eddie Diaz here referred to is not to be confused with Armando M Diaz, the aforementioned alleged discriminatee. "This is noted as background , the complaint does not allege supervisory status for Diaz 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record as a whole, it is found that there were no more than two or three instances of Savage's overlooking parts to be brought back from supply houses to Respondent's terminal in the 2-1/2 years he had been employed by Respondent. Rumore's testimony further establishes that Savage always followed instructions, but that he was a little slow. Respondent does not contend that Savage was terminated for slowness. On one occasion some 2 years before Savage's termination , someone broke into his locked and parked company truck and stole from its glove compartment" a company deposit of some $800 which Savage was to deposit at a bank. Respondent was reimbursed for this loss under its insurance coverage. The record herein does not show any personal negligence on Savage's part in the described incident. Respondent does not question Savage's personal integrity.25 On May 31, 1966, Savage was asked by Eddie Diaz and Charlie Rumore to pick up a pair of windshield wipers at a supply house in Tampa, among other auto parts. Returning from his errands that day after 6 p.m., Savage found the stockroom locked and both Diaz and Rumore gone for the day. Using his stockroom key, Savage unlocked the stockroom and deposited therein at a place where bearings were kept the auto parts he had picked up at the supply house that afternoon, including the windshield wipers which as he remembered he took special care to hide among the parts, presumably so that they would not be stolen. The purchase price of the wipers was $3.24. The next morning at 7:30 Eddie Diaz, being unable to find the wipers, asked Savage where they were. Savage after a search was also unable to find them, and despite a diligent search by all concerned, the wipers were never found. A check with the supply house showed that the wipers had not been left there. Vice President Bill Mendez came by the stockroom that morning at about 9:30 and notified Savage that if he did not find the windshield wipers, he would have to pay for them. That same day upon his return from his lunch hour, Savage found his timecard was missing from its usual place and was in the hands of Diaz. It is undisputed that Diaz at that time demanded Savage to sign a typewritten statement to the effect that he would pay for the missing wipers. The record is also clear that Savage became upset and angry at this demand because, as he told Diaz, he had never known the Company in the 2-1/2 years he had worked at its Tampa terminal to demand such an agreement, since missing parts were not an infrequent occurrence at the terminal. It is also undisputed that Savage at first declined to sign the document. It is disputed exactly what occurred between Diaz and Savage after this. Savage's testimony shows that he signed the document only after receiving an ultimatum from Diaz that he either sign the paper or be fired. Savage signed, but he notified Diaz of his positive intention to take the matter up with the 24 The record shows that the glove compartment of the truck from which the company bank deposit was stolen did not have a lock 25 This appears from G C.Exh. 3. 26 In his testimony Savage said he had told Diaz that he intended to go to the "NLR" or "LBR" about the wiper reimbursement document he had been required to sign I find from the record that Diaz and all other parties who became conversant with Savage's threat to take the matter up with the National Labor Relations Board.26 I credit this testimony, as it appears throughout Savage's testimony that he was both completely honest and sincere and wholly guileless and artless in his testimony. After signing the agreement, Savage demanded and received from Diaz a copy of the document. Diaz at that time returned to Savage his timecard. Within a few minutes, Diaz took the original signed agreement into Shopwide Supervisor Armando Mendez' office and placed it on his desk. Vice President Bill Mendez frequently stops into this office for use of the telephone and to conduct other business. The evidence shows that Armando and Bill Mendez discussed with each other the missing windshield wiper blades incident. Diaz in his testimony not only denied that he had threatened Savage with termination if he did not sign the wiper reimbursement agreement, but also denied that Savage had told him that he intended to go to the National Labor Relations Board about the incident. Rumore, the other stockman, also denied that Savage in later speaking to him about the document said anything about going to the National Labor Relations Board about the matter, but admitted that Savage had said to him, "he knew the proper people to see." From the demeanor of these two witnesses and from the fact that Rumore admitted that Savage had told him "he knew the proper people to see," I do not credit their denials that Savage had declared his intention to see the National Labor Relations Board about being required to sign the wiper reimbursement agreement. The credited testimony of Savage further shows that Vice President Bill Mendez approached Savage about mid-afternoon of the same day and in a harsh voice, after striking him on the arm, demanded, "Old man, give me that paper !" The reference was to Savage's copy of the wiper reimbursement agreement. Savage immediately complied with the demand, which Bill Mendez in his testimony did not deny. At the close of the same day at or about 6 p.m. as he was about to quit work for the day, Savage again found his timecard missing from the rack. As he was looking for it, Shopwide Supervisor Armando Mendez came along and asked Savage to come into the stockroom in order to speak with him privately. The credible testimony of Savage shows that Mendez said to him, "Henry, I'm sorry. I hate to do this to you, because we got along good in the stockroom. My hands is tied. You should not have said `LBR';27 you are fired."28 Mendez had with him the agreement Savage had signed to reimburse the Company for the missing windshield wipers and as he uttered the above-noted words to Savage, tore up the document. Not quite at first catching the significance of Mendez' remarks, "My hands is tied. You should not have said `LBR'," Savage specifically inquired why he was being fired. Mendez told him, "Rumore [the stockroom boy] says `you left parts in town. -29 Armando Mendez testified that while the immediate reason for the termination of Savage was the incident of the missing windshield wiper blades, he was also discharged because of the past accumulation of such "NLR" or " LRB" knew that he was referring to the National Labor Relations Board 27 Armando Mendez' testimony shows that he also uses the letters "LRB" to refer to the National Labor Relations Board 28 Savage testified substantially as shown above under both direct-and-cross examination 29 This appears from Savage's testimony under both direct-and cross-examination REDWING CARRIERS incidents. Consideration will be given below to the question of whether these assigned reasons for the discharge of Savage constituted real motivation for his termination. Armando Mendez testified at the hearing herein both under direct-and-cross examination that the decision to terminate Savage was a joint decision arrived at by Vice President Bill Mendez and himself. But in an affidavit dated some 6 weeks earlier'30 Armando Mendez flatly stated, "Terminating Savage was entirely my own decision. No one else required me to do it or suggested that I do it." At the present hearing Armando Mendez categorically denied that he had told Savage he was being discharged because he threatened to go to the "LBR" or that he even used the letters "LBR" when he terminated Savage. Due to the discrepancy between Armando Mendez' aforementioned statement in his affidavit and his noted testimony at the hearing and also by reason of my observation of Armando Mendez' demeanor, I do not credit his denial that he told Savage that he was being discharged because he threatened to go to the "LBR" or his denial that he even used the letters "LBR" when he was terminating Savage. In an earlier section31 of this Decision, it was found that Supervisor Peter Romero interrogated Savage in May sometime subsequent to May 9, 1966, as to how Savage stood "with the Union" and that Savage had replied, "Neutral." When pressed for a more definite answer, he again replied, "Neutral." The testimony of Savage further establishes that at about the time of this incident with Peter Romero, Vice President Bill Mendez came up to Savage in the stockroom and after striking Savage on one of his arms with sufficient force to cause him to drop some papers, said to him, "The Union is no good." No evidence was presented to show that Savage had signed a union authorization card or that he was participating in the efforts of the Union to organize the Respondent at or prior to the time of his termination. The Respondent, however, was aware of the union activities among its driver and shop employees at the time of Savage's termination by reason of the then pending representation election. Its officers had reason to suspect that Savage might vote for the Union because of his persistent refusal to answer questions by a company supervisor as to how he stood on the union question through his response that he was "Neutral." Discussion and Conclusions With the resolution of the credibility issues as set forth above, the ultimate issue is whether Savage was terminated for cause by Respondent "for leaving parts in town" as contended by Respondent or whether Savage was discharged in violation of Section 8(a)(1) of the Act because he threatened to go to the National Labor Relations Board to "report a grievance between himself and Respondent," as set forth in the complaint and contended by General Counsel. Under all the evidentiary facts set forth above and from the impressions gained from the demeanor of witnesses, I find and conclude that Savage was discharged because of his threat to complain to the Board about the reimbursement agreement he was forced to sign. 30 As reflected in G C Exh. 3 31 See findings above under section entitled "8. Incidents under paragraph 60)," etc. 79 I further find that the unfair labor practice involved in the discharge of Savage is not relvant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because the incident does not relate to an employee in the drivers unit involved in said case. See Goodyear Tire and Rubber Company, supra. All the evidentiary facts of record show, and it is found, that Savage was a reasonably satisfactory employee. This is evident from Romero's testimony that Savage complied with all orders. The fact that Savage was a reasonably satisfactory employee is made even more evident from the remark32 made by Savage's supervisor, Armando Mendez, to Savage in terminating him. He said, "I hate to do this to you, because we got along good in the stockroom." The record further shows that out of the hundreds of auto parts Savage brought back to Respondent's terminal from supply houses in his 2-1/2-year tenure with Respondent, there were only two or three times that he forgot to pick up or overlooked a part that had been ordered. Such minimal negligence on the part of an employee would not normally cause an employer to discharge the employee. The matter of Savage's affiliation or sympathy with the Union became suspect to Respondent some 2 weeks prior to his termination when Savage told an inquiring supervisor that he stood "Neutral" on the subject of the Union. At the time of Savage's discharge, a representation petition was already pending before the Board requesting an election among Respondent's employees at its Tampa terminal and Respondent had already started its vigorous and in part unlawfu133 antiunion campaign. The record further shows, as will appear below with respect to discriminatee Robert A. Gonzalez, that the Respondent is extremely sensitive about having any complaints lodged with the Board against it. In view of these evidentiary facts, it is held that Respondent's assertion that Savage was fired "for leaving parts in town" is pretextual and a cover for discharging Savage for suspected union activities and for Savage's declared intention to invoke the jurisdiction of the Board by filing a complaint or grievance against Respondent. Under all the evidence of record including the fervor of union activities at the terminal, Savage's threat to take his grievance to the Board manifested an intention "to engage in other concerted activities for the purpose . of protection" within the meaning of Section 7 and Respondent's discharge of Savage because of this threat constituted an act of interference and coercion in the exercise of rights granted by Section 7 of the Act in violation of Section 8(a)(1) of the Act. In H. B. Roberts of Local 925, Operating Engineers v. N.L.R.B., 350 F.2d 427, 428 (C.A.D.C.), it was held, "the right of an employee to file charges is protected under Section 7." In the same case the District of Columbia Circuit quotes with approval the Board's holding in Local 138, International Union of Operating Engineers, 148 NLRB 679, 681, as follows: Section 10 of the Act grants to the Board exclusive authority to prevent and remedy unfair labor practices and, in furtherance of the exercise of the Board's authority, confers upon any person the right to file an unfair labor practice charge. The right to file charges is indispensable to the administration of the 32 As credibly testified to by Savage 13 The reference above is to Respondent 's numerous 8(a)(1) violations as found above. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act since the Board cannot initiate its own processes and no unfair labor practice complaint can issue in the absence of a valid charge. ... an employer violates the Act by resorting to restraint and coercion to restrict the right of an employee to file a charge ... such conduct by an employer violates Section 8(a)(1) .... The question of whether the grievance Savage threatened to file with the Board would have had merit as a basis for a valid unfair labor charge under the Act is immaterial. This could not be determined until the Board had acted on the grievance. Any act by an employer to prevent the filing of a grievance by an employee with the Board constitutes an interference with Board proceedings. As noted by the Supreme Court in N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344, "The wisdom or unwisdom of the men, their justification or lack of it" is immaterial to the determination of their rights under the Act. J. 8(a)(4) and (1) Issues as to the Discharge of Robert A. Gonzalez The complaint charges that Respondent discriminately discharged Robert A. Gonzalez on July 15, 1966, in violation of Section 8(a)(4) and (1) "because said employee joined or assisted the Union, or engaged in other union or concerted activities for the purpose of collective bargaining or mutual aid or protection, and because said employee gave testimony to an agent of the National Labor Relations Board ...." Robert A. Gonzalez, a mechanic, was employed by Respondent for a total of nearly 5 years of continuous employment prior to his discharge. He was hired in November 1961. In the past 3 years of his employment, he worked in the brake shop of Respondent's Tampa terminal as one of two or three employees under the supervision of Lorenzo Lima.34 He was terminated on the aforementioned date of July 15, 1966, under the circumstances hereinafter related. Gonzalez' wage scale earnings throughout his 5-year tenure with Respondent was $1.55 an hour except that he received a 10-cent increase in the last week or so of his employment. His overtime was paid at the same rate as regular time. A recommendation from his supervisor, Lima, to management that he be paid time and a half for overtime was rejected. Gonzalez' employment at Respondent's brake shop called for a 6-day week for as many hours a day as required which was generally more than 8 hours and sometimes up to 12 and 13 hours per shift. In his last year of employment because of the long hours he put in, Gonzalez would usually take a half day off from the expected 6-day workweek. He sometimes told Lima that he was taking the half day off, but there were an equal number of times when he would walk off without telling anyone about it. Gonzalez' testimony shows that he was not critized for this practice. From the record as a whole, it is found that Respondent's management went along with this practice because of the long hours Gonzalez and others in the brake shop were expected to work without the usual overtime pay. a4 In an earlier section of this Decision , the status of Lorenzo Lima, which was placed in issue by the pleadings, was found to be the supervisor of both Respondent's brake shop and body shop at all times here pertinent The record also discloses unauthorized leave taken by Gonzalez on Christmas Day 1965 and his next workday some 6 months before his discharge. Gonzalez was scheduled to be off duty on Christmas Day 1965 and to work on New Year's Day 1966, whereas his working supervisor, Lima, had the reverse situation. At Lima's request, Gonzalez agreed to exchange schedules with Lima and to work on Christmas Day and be off on New Year's Day, so that Lima would not have to work on Christmas Day. Pursuant to this arrangement, Gonzalez reported to work that Christmas Day, but he and his colleague, Manuel Alvarez, after completing an emergency repair on a vehicle, quit work and took off some 2 hours later at or about 9 a.m., contrary to their agreement to work all day. The next workday, the following Monday, Gonzalez and Alvarez reported to work at the usual time, but finding their timecards missing from the rack, they decided to take the day off and walked out of the shop. They were back at work the next day, with Gonzalez working another 6 months before he was discharged and Alvarez still working for Respondent at the time of the hearing herein. After returning to work, Alvarez was warned by Shopwide Supervisor Armando Mendez that if he took off again from work without permission, he would be discharged. The credible testimony of Gonzalez shows that he did not receive a similar warning from Armando Mendez, but knew that he had incurred the displeasure of Mendez because Mendez did not speak to him for 2 weeks thereafter. The record also contains other evidence showing that the Company is fairly tolerant about leave taken without prior permission or notice. Benjamin Small (heretofore mentioned in connection with the issue as to Lima's status as supervisor of the body shop) was one of three body repair employees working in Respondent's body shop, also under the supervision of Lima. The testimony of Small establishes that in 1966 he took at least 10 full workdays off without asking anyone's permission and that in 1966 he also left his job at mid-day no less than three times without notice to anyone at the shop. He was never punished or reprimanded for any of these unauthorized leaves except that on one occasion Vice President Bill Mendez told him that "he didn't want me being off any more." Sometime in March 1966 Gonzalez signed a union authorization card. Thereafter he and Raymond C. Garcia, another shop employee and also an alleged discriminatee under the complaint, became extremely active in organizing Respondent's shop employees. Gonzalez himself succeeded in signing up some 21 or 22 shop employees out of the approximately 70 shop employees in the Tampa terminal. As heretofore noted the Union won the representation election held in July 1966 among Respondent's shop employees. It was shown in detail in an earlier section of this Decision35 that one of Respondent's vice presidents had become aware of Gonzalez' extensive union activities at the Respondent's shop as early as April 1966. On June 4, 1966, Gonzalez was instructed by Vice President Mario R. Cabrera to see President Charles Mendez before the day was over and informed him it would be in his interest. At noon Lima reminded Gonzalez that the president wanted to see him. Gonzalez then went to Mendez' office and after being admitted thereto by the as See findings above under subcaption " 1 Incident under paragraph 6(a) " REDWING CARRIERS president's secretary, Mendez asked him what he wanted. Gonzalez replied that he had been told by Cabrera that Mendez wanted to see him. Mendez engaged in some further fencing by asking Gonzalez what his trouble was. Gonzalez replied, "I don't have any troubles." Mendez then said to him, "I know they haven't been treating you right about your pay and, if you keep your mouth shut, I will give you a dime raise starting as of today, and you will get it next week. You know, at Blythe [the aforementioned subsidiary motor carrier of Respondent's] we had a union election. We defeat them two to one, and I want to defeat them here in Tampa 20 to one, and I want you to go over there and give me a hand in defeating the union here in Tampa 20 to one." Mendez mentioned to Gonzalez that he could get him [Mendez] into a lot of trouble for giving him a raise at a time when the representation election was coming up as the Company "wasn't supposed to give any raises at all" under such circumstances, and asked Gonzalez not to mention the raise to anyone. The incidents related in this paragraph are based on the credited testimony of Gonzalez. At the hearing, President Mendez readily corroborated Gonzalez' testimony that he [Mendez] gave Gonzalez a 10- cent raise at their conference of June 4 and that he "did tell him to don't tell no one" as the Company was "not supposed to increase wages while we got labor matters pending." He also told Gonzalez he would "appreciate you [Gonzalez] not mentioning this to nobody ...." Mendez' testimony also shows that at the same conference he asked Gomez "for his support" in the forthcoming election by his "vote against the union." However, Mendez branded as a he Gonzalez' testimony that he [Mendez] gave Gonzalez "the raise in order to get him to work against the union, and I deny it." Mendez testified that he was motivated to give Gonzalez the 10-cent raise at the June 4 conference because Gonzalez "sold me the idea" by his ability to answer questions concerning his work which evidenced superior mechanical ability and by his complaints that he deserved more pay than his colleague Manuel Alvarez who was receiving the same pay because Alvarez was slower, lost time from work from time to time due to drinking, and had only 2 years of service as against Gonzalez' 5 years of service with the Company. Gonzalez in his credited testimony denied that he made any requests for a wage increase or that Alvarez' name was even mentioned at his June 4 conference with Mendez.36 From the demeanor observation of Mendez, I do not credit his above-stated reasons for giving Gonzalez the 10-cent raise. But Mendez' said testimony is also rejected because of other factors; i.e., that the wage increase was given Gonzalez at a time when a representation election was pending among shop employees; that Respondent had theretofore taken a hard line against wage increases as appears from the fact that Gonzalez had not received a wage increase despite repeated requests in the 5 years he had worked for Respondent; that an earlier recommendation of Supervisor Lima that overtime be paid to Gonzalez at the rate of one and a half over regular wages had been rejected; and that the raise here in question was made solely on the initiative of President Mendez without recommendation of Gonzalez' immediate superior, Lima, or the Shopwide Supervisor Armando Mendez. These 38 However the record shows that Gonzalez had made repeated prior requests to President Mendez for wage increases based on his seniority and superior qualifications to that of Manuel Alvarez These requests had been denied 81 factors suggest that Mendez' real reason for giving Gonzalez a raise was other than those stated by him. Sometime after his June 4 conference with President Mendez, Gonzalez reported his wage increase to an agent of the National Labor Relations Board and the circumstances under which he received the raise as shown above from his testimony. Word of this reached Mendez from the Board and although the Regional Office did not indicate the source of its information, Mendez immediately associated Gonzalez with the complaint. On July 11, 1966, Mendez sought out Gonzalez at his station, waited for him until he returned from lunch, and then bitterly assailed him for "lying" to the Board that he had been given a "wage increase in order to work against the union." He also said to him (as reflected in the credited testimony of Lima), "Didn't I tell you that, if I would give you a raise, not to go tell 'em about the raise because I am violating the law if give you a raise?," and called upon Gonzalez to acknowledge that he had given him the raise because of Gonzalez' complaint that he deserved more than his colleague Alvarez.37 Gonzalez replied that he understood when he got the raise that it was "to help him [Mendez] to defeat the union 20 to one." Continuing, Mendez told Gonzalez: "And furthermore, let me tell you this. Whether the union wins or not, I will never sit down to negotiate a contract with the union." Mendez also told Gonzalez that from then on he would see to it that Gonzalez worked every minute of the working day even if it meant that he (Mendez) had to be at the shop all day to watch Gonzalez. Mendez thereupon ordered Gonzalez back to work and stated that he was canceling immediately the 10-cent raise he had given him. Gonzalez worked for about 45 minutes and finding himself feeling high strung and nervous from the calling down he had received from Mendez and fearing that Mendez might return to continue the argument, he decided to take the rest of the day off. As it was noontime and Lima was not present, Gonzalez asked his colleague Alvarez to have Lima ticket him out when he returned to the shop. Upon receiving this request, Lima punched Gonzalez out about 1:30 p.m. and immediately reported Gonzalez' departure for the afternoon to Charles and Armando Mendez who happened to be together in Armando's office. The credited testimony of Lima and of Charles Mendez in this respect shows that when Charles Mendez received the information about Gonzalez' taking off for the afternoon without advance permission, he decided then and there to treat Gonzalez' departure for the afternoon as a "quit" or voluntary termination of employment by Gonzalez. That night Gonzalez telephoned Lima at his home to see what had happened and Lima told him what Charles Mendez had said. Notwithstanding the information received from Lima that Charles Mendez had characterized his departure from the work the preceding afternoon as a quitting of his job, Gonzalez showed up at the brake shop the next morning (July 12) and asked Lime for 2 or 3 days off work on the ground that he was sick. Lima referred him to Armando Mendez and Armando, obviously discounting Charles Mendez' statement of yesterday that Gonzalez had "quit," told Gonzalez that his request for time off was up to Lima. Lima thereupon granted the request. 31 As heretofore noted, the credited testimony of Gonzalez shows that the name of his colleague Manuel Alvarez was not mentioned at Gonzalez ' meeting with Mendez on June 4,1966 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, July 13, after working hours, Lima contacted Gonzalez to convey to him a message from Charles Mendez and Bill Mendez that they no longer wanted him at the shop. Gonzalez nonetheless reported to work on July 15 and while looking for his timecard, Vice President Bill Mendez came along, told him his card was no longer in the rack, informed him "you are no longer employed here," and ordered him to "Get out of here." Gonzalez asked: "In other words, you fired me?" Mendez replied "No, you quit." Discussion and Conclusions Whatever may be the reasons for Gonzalez' separation from Respondent, it is clear from the record and it is here found that Gonzalez did not voluntarily quit his job but was terminated by Respondent against his will, as the Respondent now appears to admit in its brief.38 The issue is thus narrowed to the question of whether Gonzalez was terminated for his union activities and for giving testimony to an agent of the Board in violation of Section 8(a)(4) and (1) as alleged in the complaint or whether he was terminated for cause for taking unauthorized leave on the afternoon of July 11, 1966, as contended by Respondent. Respondent contends that Gonzalez was terminated because he "disobeyed a direct order of the President of the Company to return to work and left the plant without permission and without punching out." The reference here is to the noon period of July 11, 1966, when President Mendez personally confronted Gonzalez and bitterly reproached him for informing the Board that he (Mendez) had given him a raise to work against the Union, and then gruffly ordered Gonzalez back to work. The stinging rebuke so upset Gonzalez that he decided, after working for nearly an hour, to take the rest of the afternoon off and having made this decision he did leave the shop without advance authorization and without punching out, but not without notice because in the absence of Supervisor Lima he left word with his colleague Manuel Alvarez to tell Lima about his leaving and to request him to punch him out when he returned shortly from his lunch hour. President Mendez seized on this unauthorized walkout to terminate Gonzalez. Even these bare facts, in conjunction with the knowledge Respondent had of Gonzalez' union activities, supports an inference that Mendez fired Gonzalez for informing against him to the Board and to be rid of an active and persistent union organizer and that Mendez used Gonzalez' unauthorized walkoff as a pretext for his real motive in discharging him. This inference, however, is reinforced by another factor. This is that Gonzalez in taking off on the afternoon of July 11 without prior permission was merely following a practice he had been following for a year without reprimand or criticism from his supervisors. The record shows that the practice had been tolerated by Respondent in silent recognition of the fact that its employees in its brake shop who were required to work more than the standard 8-hour day, sometimes as many as 12 or 13 hours, for a 6-day week, without the customary time and a half for overtime, were entitled to some leeway. The Respondent seeks to justify the wage increase President Mendez gave Gonzalez on the eve of a as The opening paragraph of Respondent's proposed findings (p 32) with respect to Robert A Gonzalez reads "Robert A. Gonzalez was terminated after he left work without permission " 11 On the basis of demeanor observations and because of other representation election as an "isolated merit wage increase which was an exercise of business judgment." Any reading of the record, however, shows either directly or by inference that the wage increase given to Gonzalez, his first in nearly 5 years, was made not only to silence Gonzalez as an active union organizer, but also to induce him to work against the Union. It is apparent from Mendez' own testimony that he was aware he was violating the Act by giving Gonzalez, at the very time of the pendency of the election, a wage increase with the admonition that he was not to report it to the Board. I find and conclude that the firing of Gonzalez for taking unauthorized leave was a pretextual cover for discharging him for giving testimony under the Act and for being actively engaged in organizing the shop in which he worked. It is therefore found that Gonzalez' termination constitutes a violation of Section 8(a)(4) and (1)of the Act. K. Further Findings on Issues as to Interference, Coercion, and Restraint 1. Incidents under paragraph 6(x) and (aa) Under paragraph 6(x) of the consolidated complaint, it is alleged that "On or about June 4, 1966, President Charles E. Mendez gave an employee a pay increase and asked him to help Mendez defeat the Union in the election." The record shows that the employee referred to above is the aforementioned discriminatee Robert A. Gonzalez. From the findings set forth in the proceeding section of this Decision, it is found that the above allegations have been substantiated and accordingly, by reason of the facts so established, the Respondent is in violation of Section 8(a)(1) of the Act. Under paragraph 6(aa) of the consolidated complaint, it is alleged that "On or about July 11, 1966, Respondent's President Charles E. Mendez, asked an employee why he had told the Board that Mendez had given such employee a raise in exchange for such employee's support against the Union in a coming Board-conducted election, told such employee that he [Mendez] would see that the employee worked every minute if he [Mendez] had to run the shop himself, that he [Mendez] would eliminate the raise he had earlier given such employee and that if the Union won the election he [Mendez] would never sign a contract with the Union." The record here also shows that the employee referred to above is the aforementioned Robert A. Gonzalez. From the findings set forth in the preceding section of this Decision, it is found that the above allegations have been substantiated through the credible testimony of Gonzalez39 and, accordingly, by reason of the facts so established, the Respondent is in violation of Section 8(a)(1) of the Act. 2. Incident under paragraph 6(ff) Under this paragraph, it is alleged that "On or about July 16, 1966, Respondent's President Charles E. Mendez told employees at a meeting that he would never negotiate with the Union." factors discussed in the preceding section of this Decision, I do not credit such denials as were made by President Mendez at the hearing of the testimony given by Gonzalez in support of the allegations of the complaint here under consideration REDWING CARRIERS Testimony was received on the above from Angel Portugues who had had employment at the Tampa terminal as a mechanic for the past 4 years. Portugues' testimony shows that the Company called a meeting of its Tampa shop employees on Saturday, July 16, 1966, just 2 days prior to the scheduled representation election for Respondent's Tampa shop employees. The meeting, which was attended by all shop employees present that day, was addressed by both Vice President Mario Cabrera and President Charles Mendez. The forthcoming election was the principal subject of the remarks made by Cabrera and Mendez to the shop employees. It is established by the credible testimony of Portugues, both on direct-and-cross examination, that President Mendez in his speech or remarks to the shop employees "very clearly" told them he would "not sit down at a table and negotiate with the Teamsters." In the above section of this Decision, it was found that President Mendez had made a similar statement to discriminatee Robert A. Gonzalez on July 11, 1966. The record as a whole shows that President Mendez has bitterly opposed the Union over many years in its efforts to organize Redwing's Tampa terminal employees. Based on demeanor observations and the entire record herein reflecting numerous violations of the Act, I do not credit President Mendez' denials that he did not tell his shop employees at their meeting of July 16, 1966, that he would not bargain with the Union. In summary it is found that the allegation of the complaint here under consideration has been substantiated and that by reason of the facts thus established, Respondent is in violation of Section 8(a)(1) of the Act. L. Issues as to Alleged Discriminatory Discharge of Raymond C. Garcia The complaint alleges the discriminatory discharge of Raymond C. Garcia as of about July 19, 1966, in violation of Section 8(a)(3) of the Act. Respondent's defense is that Garcia was "replaced because of excessive absences." Garcia, age 54, was employed to work as a painter- helper in Respondent's Tampa terminal paint shop sometime in November 1965. He was terminated under the conditions hereinafter described on July 19, 1966. Respondent employs three painters (including painter- helpers) and one sprayer in its paint shop. Garcia was made a sprayer shortly after he was hired as a painter- helper. He was employed to work a 54-hour week. By reason of illness, Garcia missed some 30 days of work between January 5 and June 22, 1966. Most of his absences were for only a day at a time, generally once a week. Included in his 30 days of absences due to illness was a period of 8 days in April when Garcia was hospitalized for treatment of a gastrointestinal ulcer. His last day of work was June 21, 1966. On June 23, 1966, Garcia's wife telephoned Respondent's Shopwide Supervisor Armando Mendez to inform him that her husband needed an operation and asked that his job be kept open until he could return to work. Mendez' testimony shows that he informed Mrs. Garcia "that if this is going to take too long," he would have to hire a replacement. Garcia entered a hospital on June 27 for a hernia operation and was released on July 18. Respondent at no time notified Garcia between his last day of work on June 22 and July 18 when he was released from the hospital that his job was no longer open for him. 83 On July 18, 1966, the Board conducted an election at Respondent's Tampa terminal for the purpose of affording Respondent's shop employees the right to vote on whether they wanted to be represented by the Union. As heretofore noted the vote was in favor of the Union. Garcia, on the very day he was released from the hospital, participated in the election as the sole official observer for the Union and also voted in the election without challenge from the Respondent who also had an official observer at the election. Garcia had become active in organizing the shop employees of Respondent's Tampa terminal some time in March or April 1966 and had himself succeeded in getting about 25 shop employees to sign union authorization cards. Garcia, together with the aforementioned discriminatee Robert A. Gonzalez, another shop employee, signed up more than half of the some 70 shop employees in the unit. The Company had furnished a list of some 81 shop employees employed at its Tampa terminal as of May 25, 1966, to the Board's Regional Office at Tampa. Garcia's name and the names of the other herein involved discriminatees, Armando M. Diaz, Robert A. Gonzalez, and Henry Savage, were on the list. Respondent's Vice President Mario Cabrera and a union agent met on the Saturday before the election of the following Monday (July 18) for the purpose of going over the May 25 list of shop employees to make it current. By agreement between Cabrera and the union agent , the names of the aforementioned discriminatees , Diaz, Gonzales, and Savage were eliminated from the list by appropriate markings because they were no longer in Respondent's employment. Garcia's name, however, was not eliminated from the list and as heretofore indicated he was allowed to vote in the election of Respondent's shop employees held 2 days later on July 18, 1966, without challenge. On July 19 Garcia telephoned Respondent's Shopwide Supervisor Armando Mendez to let him know that his doctor had cleared him for work and to inquire if he could report to work. The credited testimony of Garcia shows that Mendez replied, "No, at this present time we have somebody on your job. We needed a painter, so we just got one now." Mendez gave Garcia no indication that he would be recalled at some later date. Armando Mendez in his testimony, while stating he had hired a replacement for Garcia, did not name the replacement and stated at one point in his testimony that the replacement was hired a week after Garcia went on sick leave and at another point, that the replacement was hired a week or two before the July 18 election. As heretofore noted, Mendez told Garcia when he called that as the Company needed a painter "we just got one now." Garcia was off his job for the hernia operation a total of about 3-1/2 working weeks when he called to inform Armando Mendez that he was ready to go back to work. Discussion and Conclusion I am satisfied from the record that Respondent had no intention of terminating Garcia until it discovered on election day, July 18, that Garcia was monitoring the election for the Union. It then became painfully obvious to Respondent for the first time that Garcia was a staunch union participant, a fact that had apparently alluded the Company because of Garcia's nearly 4 weeks of absence due to his operation. It was only then that the Company seized upon his necessary absence for a rather common male operation (inguinal hernia) to terminate him. When 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Garcia called Armando Mendez to let him know about her husband's forthcoming operation, she was not told that his job would not be held open for him, but only that the Company could not hold it open indefinitely. An absence of a month for a hernia operation is not an indefinite period; common knowledge shows that most men are out for a period of a month for such operations. It is obvious that the Company considered Garcia an employee on the Saturday before the election when Respondent's Vice President Mario Cabrera went over with a union representative very carefully the shop employee list the Company had furnished the Board on May 25 to make certain that it reflected only the employees still deemed employees of the Company. It is my observation that Cabrera is one of Respondent's shrewdest officers, a man capable of quick and firm decisions, who could be counted on to represent the Company's best interests in a matter as important to it as the election. While a number of employees were stricken from the list because they were no longer in the employ- ment of Respondent, the name of Garcia was not touched or questioned. This is clear evidence that Respondent considered Garcia an employee of the Company for purposes of the election only 2 days away, although on July 16 when the list of shop employees was in final revision Garcia was still on sick leave. Since it was only after the Company observed Garcia at its own plant monitoring the election for the Union that it notified Garcia that he had been replaced, it must be inferred that he was discharged because of his union sympathies and activities. While it is true that Garcia had about 30 days of absence due to illness in the 6 months prior to the time he had to have his operation, there is no indication in the record that Respondent was anything but tolerant about this. I find and conclude that Respondent terminated Garcia because of his union activities in violation of Section 8(a)(3) of the Act. I further find that the unfair labor practice involved in the discharge of Garcia is not relevant to the objections to the election in Case 12-RC-2483 in this consolidated proceeding because the incident does not relate to an employee in the drivers unit involved in said case and for the further reason that since the discharge took place some time after the drivers' election, it could not obviously have had any effect on the earlier drivers' election. 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 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. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, it will be recommended that the Respondent 40 As set forth above under section III, F, and described thereunder as "Incidents " numbered 6, 9, 10, and 11, under cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent offer employees M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement, and in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that the objections to the election on which a hearing was ordered be sustained, and that the election held in Case 12-RC-2483, be set aside in view of the findings40 above which show that the Respondent substantially engaged in the unlawful conduct complained of by the Union in its objections to the election as set forth in the early portion of this Decision. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. It will also be recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. 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. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 79, Teamsters, Chauffeurs, Warehousemen & Helpers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent's employees Peter Romero, Lorenzo Lima, and Dan H. Hanson have been at all times here material agents and supervisors of Respondent within the meaning of Section 2(11) of the Act. 4. By discriminating in regard to the hire and tenure of employment of M. Vicente Gomez, Armando M. Diaz, and Raymond C. Garcia, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By terminating the employment of Henry P. Savage because said employee stated that he would report a grievance between himself and Respondent to the National Labor Relations Board, thereby restraining an employee in the exercise of the rights guaranteed in Section 7, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 6. By terminating the employment of Robert A. Gonzalez because said employee joined and assisted the Union in concerted activities for the purpose of collective section III, K, and described thereunder as "Incidents" numbered 1 and 2, and under section III, J and H REDWING CARRIERS 85 bargaining and because said employee gave testimony to an agent of the National Labor Relations Board, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 7. By engaging in the conduct set forth under section III, above, dealing with various unfair labor practices alleged under paragraph 6 of the consolidated amended complaint and the subparagraphs thereunder, except as herein recommended for dismissal, Respondent interfered with, restrained, and coerced its employees and has engaged in and is engaging in unfair labor practices within the meaning of $ection 8(a)(1) of the Act. 8. 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent Redwing Carriers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Local 79, Teamsters, Chauffeurs, Warehousemen & Helpers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization , by discharging or refusing to reinstate any employees in violation of Section 8(a)(1) of the Act for exercising the rights guaranteed employees by Section 7 of the Act; and by discriminatorily discharging or refusing to reinstate employees in violation of Section 8(a)(3) and (4) of the Act. (b) Threatening employees with retributive action if they did not stay away from the Union or any union. (c) Warning employees not to become involved with the Union or sign its authorization cards. (d) Interrogating employees to determine who is urging the Union. (e) Threatening employees with changes in wages, hours, and working conditions in the event the Union or any labor organization is successful in pending representation elections. (f) Instructing employees to repudiate the Union or any labor organization. (g) Threatening the loss of employee benefits if the employees selected the Union or any labor organization to represent them in negotiations with Respondent. (h) Promising employees increased benefits in exchange for the repudiation of the Union or any labor organization. (i) Discharging employees known or suspected by Respondent of being union adherents. (j) In any manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action found necessary to effectuate the policies of said Act: (a) Offer to M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions. (b) Make the said M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia whole for any loss of earnings they may have suffered, severally, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their 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) Preserve and, upon request, make available to the Board or its agents all payroll records and other records necessary to analyze the amounts of backpay as set forth in the section of this Decision entitled "The Remedy." (e) Post at its terminal in Tampa, Florida, copies of the attached notice marked "Appendix. `41 Copies of said notice, to be furnished by the Regional Director for Region 12, after being duly signed by Respondent or its representatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.42 I FURTHER RECOMMEND that paragraph 6(d) and (i) of the consolidated amended complaint, which having been withdrawn by General Counsel in his brief, be dismissed. I FURTHER RECOMMEND that paragraph 6(u) of the consolidated amended complaint be dismissed for failure of proof. I FURTHER RECOMMEND that the objections to the conduct of the election be sustained, that the election held on July 9, 1966, in Case 12-RC-2483 be set aside, and that the representation proceedings be and hereby are remanded to the Regional Director for Region 12 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. All motions made by Respondent in its brief, except to the extent herein above granted, are hereby dismissed. 11 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." 12 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in 299-352 0-70-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order to effectuate the policies of the National Iabor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local 79, Teamsters, Chauffeurs, Warehousemen & Helpers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discriminatorily discharging or refusing to reinstate any of our employees, or in any manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten employees with retributive action if they do not stay away from the said Union or any other union. WE WILL NOT warn employees not to become involved with the Union or sign its authorization cards. WE WILL NOT interrogate employees to determine who is urging the Union. WE WILL NOT threaten employees with changes in wages, hours, and working conditions in the event the Union or any other labor organization is successful in a pending representation election. WE WILL NOT instruct employees to repudiate the Union or any other labor organization. WE WILL NOT threaten employees with the loss of employee benefits if the employees select the Union, or any other labor organization, to represent them in negotiations with Respondent. WE WILL NOT promise employees increased benefits in exchange for the repudiation of the Union, or any other labor organization. WE WILL NOT discharge employees known or suspected by the Company to be union adherents. WE WILL NOT discriminate in the hire, tenure, or any term or conditions of employment of our employees to encourage or discourage membership in any union. WE WILL offer M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia immediate , full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, and working condition. WE WILL make whole M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia for any loss of earnings they may have suffered by reason of the discrimination against them, or other violations of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization of our employees, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining or mutual aid, or to refrain from any and all such activities. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. REDWING CARRIERS, INC. (Employer) Dated By (Representative) (Title) Note: We will notify M. Vicente Gomez, Armando M. Diaz, Henry P. Savage, Robert A. Gonzalez, and Raymond C. Garcia if presently serving in the Armed Forces of the United States of their 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 provisions, they may communicate directly with the Board's Regional Office, 706 Federal Office Building, Room 706, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.