Frazier, Inc.

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frazier, Inc. and General Drivers and Helpers Union Local 554, affiliated with Interna- tional Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-3010 June 19,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 5, 1967, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Frazier, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the numeral "1." before the words "Cease and desist from" in the Recommended Order of the Trial Examiner's Decision. 2. Delete from paragraph 1(b) of the Recommended Order of the Trial Examiner's De- cision the words "in their job assignments or." 3. Delete from the fourth indented paragraph of the notice the words, "when we changed the work assignment of Richard Gary Osborne and"; and "changed work assignment and." agree. Without passing on the Trial Examiner's credibility determination concerning the testimony of Dean Frazier as to the reason for Osborne's work transfer, we are unable to conclude from the record as a whole that the General Counsel has sustained his burden of proving by a preponderance of the evidence that the transfer was discnminatorily motivated and that Respondent's economic defense is pretextuous . Accordingly , we shall dismiss that allegation of the complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: Upon a charge, an amended charge, and a second amended charge filed (respectively on September 1, October 12, and November 7, 1966) by General Drivers and Helpers Union Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein sometimes called the Union or Charging Party), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17 (Kansas City, Missouri), issued a complaint dated November 29, 1966, against Frazier, Inc. (herein sometimes called the Respondent, Employer, or Company), alleging violations of Section 8(a)(1), (3), and (4) of the Act. The Respondent's duly filed answer admitted some of the facts but denied the commission of unfair labor practices. Pursuant to appropriate notice, a hearing was held before me at Omaha, Nebraska, on January 4 and 5, 1967. All parties were represented at the hearing, participated therein, and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral argument, and to file briefs. Briefs have been filed by the General Counsel and Respondent's counsel and have been considered. At the hearing the General Counsel was allowed to amend his complaint to allege an additional contention of violation of Section 8(a)(1) of the Act. The Respondent, at the hearing, was allowed to amend his answer so as to deny the additional allegation of violation of Section 8(a)(1) of the Act. The issues in this case are whether or not Respondent (1) has promised employees benefits if they abandon the Union (in violation of Section 8(a)(1) of the Act), (2) has threatened its employees with discharge should the Union not win a representation election (in violation of Section 8(a)(1) of the Act), (3) discriminatorily discontinued payment for benefits for an employee into a health and welfare fund (in violation of Section 8(a)(1) of the Act), (4) discriminatorily changed the work assignments of Richard G. Osborne on September 8, 1966 (in violation of Section 8(a)(3) and (4) of the Act), and (5) discriminatorily discharged Richard Osborne on October 7, 1966 (in violation of Section 8(a)(3) and (4) of the Act). Upon the entire record in this case and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' i The Trial Examiner found, inter alto, that Respondent i All credibility resolutions made herein are based on a violated Section 8(a)(1), (3), and (4) of the Act by virtue of a composite evaluation of the demeanor of the witnesses and the discriminatory change in the work assignment of employee probabilities of the evidence as a whole Richard Osborne on or about September 8, 1966. We do not 165 NLRB No. 75 FRAZIER, INC. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The facts pertaining to the business of the Employer involved are based upon stipulations by the parties. Frazier, Inc., is a Nebraska corporation engaged in the installation and servicing of residential and commercial air conditioning, heating, plumbing, and sheetmetal work. During the fiscal year preceding January 4, 1967, the Employer (1) purchased materials and supplies valued in excess of $50,000 directly from sources located outside the State of Nebraska, and (2) sold materials and supplies valued in excess of $50,000 directly to customers located outside the State of Nebraska. The Respondent is a member of the Omaha-Council Bluffs Sheetmetal Contractors Association and the Omaha Plumbing, Heating, Cooling Contractors Association, which association is engaged in collective bargaining. The Respondent has annual sales of at least $500,000. Based upon the foregoing, it is concluded and found that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED General Drivers and Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is an organization open to membership by employees, and deals with employers concerning wages, hours, working conditions, and grievances on behalf of employees represented by it. Considering the foregoing, it is concluded and found that General Drivers and Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Promise of Benefits2 Sometime in May or June 1966 employee Richard G. Osborne spoke to Respondent 's Vice President Dean R. Frazier about the chances for a vacation and a possible raise. Dean R . Frazier told Osborne that he did not know about this at the time. Osborne told Dean R . Frazier that he had heard that Pioneer Pipe had "gone union" and that he would like to have some of the benefits that "they had." Later Osborne secured some union authorization cards and thereafter secured several employees ' signatures thereto and sent the cards in to the Union. Later during the same period of time, May or June 1966, Osborne spoke to Dean Frazier and told Frazier that he had secured union cards, had them signed by certain employees , and had sent them in to the Teamsters . Frazier told Osborne that he believed that Osborne was "covered by the Laborers Union," and that he wished that Osborne 3 The facts are based on a composite of the credited testimony of Osborne and Dean Frazier 3 The employees were Osborne, Allen, and Tilton ' The facts are based on a composite of the credited testimony of Osborne and Dean R. Frazier. ' There is no evidence as to what Frazier said in answer to Osborne's query. 529 would hold off for a while because the Company was thinking "then" of a pension plan for the three who worked in the stockroom.' Osborne told Frazier that he would call the Union (the Teamsters) and tell them to hold off on the processing of the union cards. Considering the foregoing, I conclude and find that the Respondent , by Dean Frazier , made an implied promise of benefits to employees with such promise being designed to encourage the employees to refrain from union activities. Such conduct is conduct violative of Section 8(a)(1) of the Act. I so conclude and find. B. Other Events Leading to Representation Hearing" Approximately 2 months later, Osborne approached Frazier again and asked if he could meet with him and talk. Frazier told Osborne that they could meet and talk. However, no definite date was set for such a meeting. Dean R. Frazier went on vacation the following week. Thereupon, Osborne called Thompson (for the Teamsters) and told him to proceed with whatever proceedings he had to. Apparently during the next week or two Osborne approached Frazier at work. Osborne asked Frazier if he could come over to his house to see him. Frazier and Osborne agreed on a time to do so and Frazier told Osborne to bring his wife over and they would have some coffee and ice cream. Osborne and his wife thereafter visited the Fraziers. Osborne and Frazier talked about the Teamsters Union and the fact that Osborne had made application for membership in the Union. Osborne asked Frazier how he felt about the matter." Osborne also asked why Bill Allen had received a raise and he had not. Osborne asked Frazier if there were a chance for him to ever get a paid vacation. Frazier told Osborne that the reason Bill Allen had received a raise was that Allen had come to him and complained that Osborne was overpaid as far as he (Allen) was concerned. Frazier also told Osborne that he did not know whether Osborne stood a chance of getting a paid vacation. Osborne asked Frazier about the status of the pension plan idea. Frazier told Osborne that he had been busy, work had slacked off, and he had more or less forgotten about it. Osborne asked Frazier if they got a pension plan would it be that when the Company was busy, they would "give" it to the employees, and when they were not busy, they would take it away from the employees. Frazier did not reply to Osborne's remarks. The Representation Petition and Hearing a On July 21, 1966, the Union filed a petition for representation (Case 17-RC-5141) for a unit of certain employees of Respondent.7 Thereafter, a hearing in the matter was held on August 17, 1966. In the foregoing case and at the hearing, it was the petitioner's position that it represented the majority of Respondent 's employees in an appropriate bargaining unit of drivers and warehousemen, and that the employees in such unit were Allen, Tilton, and Osborne. The Respondent contended that the unit sought was 6 The facts are based upon the exhibits in the record and the excerpts in the record from the transcript of the August 17, 1966, representation hearing r Such petition is designed to set in process an investigation (by informal investigation and by formal hearing if necessary) and an election if necessary to determine the representation status of the union. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inappropriate, Allen and Tilton were part of a sheetmetal workers unit,8 and Osborne was "de facto" represented by the Laborer's union.9 The Regional Director's Decision and Direction of Election in Case 17-RC-5141 was issued on September 13, 1966. The Regional Director's Decision set forth that the Respondent classified William A. Allen and Emmet E. Tilton as sheetmetal worker apprentices, and classified Richard Gary Osborne and Donald Schumacher as laborers. The Regional Director's Decision set forth the Parties' contentions as indicated before in this Decision and set forth that neither party expressly took a position with respect to Schumacher. The Regional Director's Decision revealed that both Sheet Metal Workers International Association, Local No. 3, AFL-CIO, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local No. 16, appeared at the hearing and claimed contractual interests in the representation for purposes of collective bargaining of certain employees of the Respondent. The referred-to organizations , however, did not affirmatively or by implication assert that any of the three employees (Allen, Tilton, or Osborne) were covered by their respective contracts or were in their respective units. Neither organization expressed interest in or attempted to intervene in the proceeding. Laborers International Union of North America, AFL-CIO, was served with notice of the August 17, 1966, proceeding but made no appearance. The Regional Director's Decision further set forth as follows: Osborne and Allen are primarily concerned with the supply of materials to the Employer's plumbers and sheet metal workers, respectively. They are stationed in the stock room and receive instructions from several supervisors. Tilton apparently also works out of the stock room but spends most of his time making deliveries of materials and supplies. All three also perform miscellaneous tasks at the Employer's place of business such as making minor repairs , servicing the Employer's vehicles, keeping the work area clean, and of course, loading and unloading trucks. Osborne occasionally makes deliveries of materials to job sites, but Allen does not. Tilton occasionally helps the sheet metal workers as requested. All three employees assist each other in the performance of their respective duties, but there is no interchange between them on the one hand and the Employer's sheet metal workers or plumbers on the other. While Allen some six to seven years ago was a sheet metal worker apprentice trainee, he thereafter spent some four years in the Employer's office and was then assigned to his present duties. The Employer has been making contributions for Allen to a health and welfare fund sponsored by Sheet Metal Workers, but it has not been doing so with regard to Tilton. Neither of them received pay increases when sheet metal worker employees received them on about June 1, 1966. The record also indicates that the Employer has been making contributions on behalf of Osborne to another health and welfare fund sponsored by the Teamsters and Laborers Unions. Neither Tilton nor " Represented by Sheet Metal Workers International Association, Local No. 3, AFL-CIO. Allen considers himself a sheet metal worker apprentice trainee. While the Employer testified that Osborne's duties include the digging of ditches, Osborne himself testified that he has not performed any such work for the last five years. Schumacher is classified as a laborer. The record shows that he digs ditches, and that the Employer makes contributions on his behalf to the same health and welfare fund to which it makes contributions for Osborne. According to testimony adduced by the Employer, Schumacher also cleans the shop and grounds, helps unload materials, and generally performs the same duties as Osborne. Osborne testified that Schumacher is a laborer, that he "works out of the shop," and that he does not do the same work as he (Osborne). When asked to tell the difference, as far as he knew, between his type of work and that performed by Schumacher, Osborne testified that Schumacher "digs ditches and I do not dig ditches," and that Schumacher is away from the plant "99 percent of the time." In view of my con- clusion stated below, I see no necessity to resolve the credibility issue raised by the conflicting testi- mony recited just above. In view of the foregoing, I conclude and find that none of the four employees here involved (Osborne, Allen, Tilton and Schumacher) is in fact represented for purposes of collective bargaining by any labor organization . That the Employer has been making, or is going to make, contributions to various health and welfare funds on behalf of any or all of them does not amount to actual representation. Moreover, none of the respective labor organizations concerned (Sheet Metal Workers, Plumbers, and Laborers) has indicated in any manner that it claims to represent these employees or any of them. On the contrary, under the circumstances here present, their lack of interest in such representation amounts to be disavowal of any representation claim . Further, since these four individuals are the only production and maintenance employees of the Employer who are not represented for purposes of collective bargaining, I find and conclude that they constitute a residual unit, which is appropriate for the purposes of collective bargaining, and I shall direct an election in that unit. As indicated, Richard G. Osborne appeared and testified as a witness in the August 17, 1966, hearing. Excerpts from the transcript record of that hearing reveal that Osborne appeared as a witness on behalf of the Petitioner (the Union), he appeared as a subpenaed witness, he testified with respect to his duties as an employee, he testified that he had done some "digging" when first hired but that such had ceased in 1961, worked in the supply room as a plumbing stock clerk, ordered material through the purchasing agent , checked the jobs to see what plumbing material belonged on the job for the plumbers, and took care of the plumbing trucks as far as materials went, did some delivering, did not perform work classified as sheet metal fabrication, did not perform plumbing work away from the plant , and was not an apprentice and had not heard of a classification of "apprentice trainee." Osborne further testified in the representation hearing that the Respondent had never told him that he was B With reference to Laborers International Union of North America, AFL-CIO, Local 1140. FRAZIER, INC. covered by the "Laborers Health and Welfare Fund," he had never received any communication from the Contractors, Laborers and Teamsters Health and Welfare Fund concerning eligibility to such fund, and since February 1966 had not received a policy of insurance as regards such fund. 10 Osborne also testified in the representation hearing to a comparison of his duties with those of Schumacher. Osborne testified to the effect that Schumacher was a laborer and worked out of the shop, the differences in duties were that Schumacher dug ditches and he did not, and Schumacher was away from the plant 99 percent of the time. As revealed by the excerpts from the Regional Director's Decision previously set out, the Regional Director found it unnecessary to resolve the credibility question raised by the conflicting testimony relating to the alleged differences between Schumacher's and Osborne's duties. The Regional Director's Decision revealed a rejection of the Respondent's contentions that Allen, Tilton, and Osborne were represented by the organizations referred to (Sheet Metal Workers, Plumbers, and Laborers Union) and found that a question concerning representation existed in an appropriate unit as follows: All supply room employees, truckdrivers, and laborers at the Omaha, Nebraska, facility of Frazier, Inc., excluding office clerical employees, salesmen, professional employees, guards and supervisors within the meaning of the Act, and, all other employees. The Regional Director found that employees Allen, Tilton, Schumacher, and Osborne were the employees composing the appropriate unit found. Background and Events; Circa September 5, 196611 The evidence reveals that the Respondent made contributions to health and welfare funds for virtually all of its employees. Thus contributions were made for employees who worked in the sheetmetal workers unit into a health and welfare fund for sheetmetal employees. Contributions were also made into this fund for employee Allen. Contributions were not made into this fund for Tilton because he had now worked for Respondent for a period of 6 months' duration.t Contributions were made for employees who worked in the "plumbers" unit. Contributions were also made to a Contractors, Laborers, and Teamsters health and welfare fund for employees classified as "laborers." Thus in 1966 contributions to the latter fund were made on behalf of employees Bisanz, Schumacher, Osborne, and Spicer. There was no contribution made into this fund on behalf of one employee, classified as a laborer, named Ross Sacca. Dean Frazier credibly testified to the effect that payments were not made on Sacca's behalf because he was a temporary employee-a college student working in the summer. 531 C. Discriminatory Assignment of Work to Osborne Around September 1, 1966, the Respondent's business and planned business had decreased." About this time Dean Frazier gave Osborne a work ticket for a "Salvation Army" job. The "Salvation Army" job was a job which involved the doing of certain work connected with the remodeling of the "old" Kellogg Building.14 Frazier told Osborne that there was digging to be done and Osborne should not come into the shop but was to report to a certain job from then on. As has been noted previously, Osborne after being hired in 1961, initially performed digging duties but had not performed any digging since the latter part of 1961. As also previously indicated, Osborne had testified to facts in conflict with Respondent's contentions that Osborne was a laborer. Osborne, after the instruction from Frazier, reported to work on the "Salvation Army" job and engaged in "digging" and miscellaneous work. At the time that Osborne reported to work on the "Salvation Army" job there were three men, classified as laborers, working on the job. These men were Schumacher, Spicer, and Sacca.1i Leroy Alexander, an apprentice trainee for the plumbers, took over most of the duties previously performed by Osborne in the supply room. The General Counsel contends in effect that the Respondent on or about September 8, 1966, discriminated against Osborne by changing his work assignment. There is no question but that Osborne's work assignment changed around this time. Nor is there any question but that the facts overwhelmingly reveal that Osborne received less overtime and less overall pay than what he had previously been receiving. The facts are clear that the Respondent knew that Osborne was the principal moving factor in the union campaign, the Respondent had initially attempted to dissuade Osborne from acting for the Union by promising certain benefits,1" and Osborne's testimony at the representation hearing was contradictory to Respondent's position that he was a laborer. The facts as hereinafter set out also reveal that the Respondent was discriminatorily motivated against Osborne. Thus (1) the Respondent, around the time of the change of duties for Osborne, eliminated payment into the Teamsters-Laborers health and welfare fund on behalf of Osborne but continued making payments on behalf of Schumacher, a laborer. And (2) Dean Frazier, later in September 1966, told Osborne that due to the confusion Osborne had caused, he did not see how he could keep him on, and later told Osborne, around September 23, 1966, that if the Union lost the election, the Respondent could not keep him on. From the foregoing, I conclude and find that the General Counsel has established a strong prima facie case that the Respondent discriminated in the job assignments to Osborne on or around September 8, 1966. 10 Osborne had quit work in December 1965 but had returned to Respondent's employment in February 1966 11 The facts are based on a composite of the credited testimony of Dean Frazier , Sorensen, Schurkamp , and exhibits regarding health and welfare payments 12 Apparently the qualifying requirements included that the employees have worked for at least 6 months for the employer 10 The facts are based on the credited testimony of Robert Frazier and exhibits in the record 1' The facts relating to Osborne's assignment to the "Salvation Army" job are based on the credited testimony of Osborne and Frazier To the extent that Frazier's testimony is inconsistent with the facts found, it is discredited as indicated hereinafter 15 Osborne testified to the effect that Schumacher, Spicer, and Sacca were working on the job Dean Frazier testified to the effect that Spicer and Sacca had been terminated prior to Osborne's direction to report to work on the job I am convinced that Frazier was confused in this testimony I credit Osborne's testimony as indicated. 16 Concerning a pension plan for the employees involved i 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's main defense is that it was economically motivated in its decision to make such job assignment changes. The facts are clear that Respondent's business declined during said period and resulted in less overall pay for regular and overtime work. Dean Frazier, however, appeared confused in his testimony as to the basic reason for Osborne's reassignment. Thus Frazier testified to the effect that Spicer and Sacca had been terminated prior to the assignment of Osborne to the "digging" work at the "Salvation Army" job. The credited facts reveal that Spicer and Sacca were not terminated until after the assignment of Osborne to said job. Considering the overall evidence and the implausible reasoning advanced by Respondent witnesses as to the reason for eliminating payment into the health and welfare fund for Osborne, I am convinced that Dean Frazier's testimony as to the reason he assigned Osborne to work "digging" on the "Salvation Army" job is not reliable and is not to be credited. I have considered the fact that Osborne was classified as a "laborer" and that a "plumbing apprentice trainee" took over his prior duties. The Respondent's actions with regards to the elimination of payments into the health and welfare fund, however, is contradictory to a belief that Osborne was a laborer. Such contradictory action casts great suspicion on Respondent's motivation. Thus I am convinced that the totality of the evidence reveals that the Respondent was discriminatorily motivated in the assignment of "digging" work to Osborne on and around September 8, 1966, because of its knowledge of Osborne's union activity and because of its displeasure with his testimony in the representation hearing on August 17, 1966. Such discriminatory assignment of work under such circumstances constitutes a violation of Section 8(a)(1), (3), and (4) of the Act. I so find and conclude. D. Events; Circa September 22, 1966; " Discriminatory Cessation of Health and Welfare Payments Subsequent to Osborne's rehiring by the Respondent in February and through June 19, 1966, the Respondent processed payments to the Contractors, Laborers, and Teamsters health and welfare fund on behalf of Richard Gary Osborne. On September 22, 1966, the Respondent forwarded to said fund payment on behalf of certain employees classified as "laborers" but such payments did not include payment on behalf of Osborne. The facts are clear that the Respondent, excepting for this incident relating to Osborne, paid similar payments on behalf of all regular employees into such type funds. There were several employees (Tilton and Sacca) for whom 11 The facts are based upon the exhibits in the record pertaining to the health and welfare fund payments and upon the credited aspects of the testimony of Dean Frazier, Schurkamp, and Sorensen is The facts are based on Dean Frazier's and Osborne's credited testimony The testimony reveals that this must have occurred subsequent to September 13, 1966, the date of the Regional Director's Decision and Direction of Election in Case 17-RC-5141, and that it occurred on a Friday. Considering the timing of necessary events and based on a fair inference thereto, I find that the event occurred on September 23, 1966 A different payments were not made because such employees had not worked the qualifying time to be considered regular employees. Considering the foregoing alone, the facts reveal an act of discrimination. By this act the Respondent discriminated against Osborne by making him the only regular employee not receiving such benefits. The facts are further clear that at the time of this discriminatory act, the Respondent was utilizing Osborne in "laborer" type work, and on September 22, 1966, the Respondent continued making payment for other employees contended by Respondent as being laborers. Sorensen, Respondent's office manager, testified to the effect that when it came to the attention of Dean Frazier that Osborne was not a member of the Union, Frazier directed him to delete Osborne from inclusion in such payments. Schurkamp, Respondent's secretary-treasurer, testified in effect that he was knowledgeable as to the health and welfare funds and knew that the policy of the Company was not to limit payments into such funds on behalf of union members only. Considering all of the foregoing, Osborne's union activity on behalf of the Teamsters, and Respondent's knowledge of such activities, it is clear and I conclude and find that the Respondent discriminated against Osborne on September 22, 1966, by eliminating payments on his behalf to a health and welfare fund. I conclude and find that by such conduct the Respondent violated Section 8(a)(1) of the Act as alleged. E. Events; Circa September 23, 1966; 18 Threats On Friday, September 23, 1966, Dean Frazier visited the "Salvation Army" jobsite in order to pay the mechanics and Osborne. At the time Frazier asked Osborne for certain keys for the shop and the main gate in order to give the same to Schumacher because the latter was starting to work at an earlier time than the others. During the conversation Osborne told Frazier that he had heard that a definite date had been set for the representation election. Frazier told Osborne that he knew about the setting of the election date and, due to all the confusion Osborne had caused, he did not see how the Respondent could keep, Osborne on.19 Later, apparently in the same conversation, Frazier told Osborne that if the Union lost, the Respondent could not keep him (Osborne) on. Considering all of the foregoing, it is clear, and I conclude and find that the Respondent, by Dean Frazier, threatened Osborne that his job was endangered because he had engaged in union activity. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find.20 finding as to the specific date, however, would not affect the overall results herein 19 As to these events Osborne testified fully, frankly, and in a forthright manner; Dean Frazier's testimony did not appear as frank or forthright I found Osborne to be a more reliable appearing witness I discredit Frazier's testimony to the extent that it may be construed as a denial that he threatened Osborne with loss of job opportunity because of Osborne's union activity. 10 Even if on a later date than September 23, 1966, Frazier told Osborne that if the Union lost, the Respondent could not keep him on, the evidence warrants this finding. FRAZIER, INC. 533 F. Events; Circa September 28, 19662' Around September 28, 1966, Osborne while working on the Salvation Army job, went back to the shop to pick up some materials for said job. Dean Frazier saw Osborne at the galvanized and block pipe rack located behind the shop. Frazier asked Osborne what he was doing there. Apparently Osborne told Frazier that he was picking up material for the Salvation Army job. Frazier told Osborne in effect that he did not want him coming into the shop for anything and he should tell Bob Ray, the plumbing foreman at the Salvation Army job, about this. When Osborne returned to the Salvation Army jobsite, he reported to Ray what Frazier had said. Events; Circa October 4, 1966 22 Osborne continued to work at the Salvation Army jobsite. Around October 4, 1966, Osborne called'' Dean Frazier and apparently related that he had everything done except the paving (of cement) for some ditches in the basement. Osborne told Frazier that before he could do anything else, he would need some help. Dean Frazier told Osborne to come back into the shop. Osborne returned to work at the Respondent's shop on Wednesday, October 5, 1966. G. The Election 24 October 6, 1966 On October 6, 1966, the National Labor Relations Board conducted the representation election in Case 17-RC-5141 at the Respondent's plant. The election was held between 2 and 2:15 p.m. After the election was over and the ballots had been counted, Todd Tilton, the Union's observer at the election, notified Osborne that the Union lost the election. Osborne continued to work for a while and then decided to telephone his wife. Osborne and his wife discussed the election results and how Mrs. Osborne felt. Mrs. Osborne told Osborne that she was feeling all right. It is noted that at the time involved Mrs. Osborne was pregnant. Although Mrs. Osborne related that she was feeling all right, Osborne "had a feeling" that Mrs. Osborne did not feel well. Osborne went up to the front office to locate one of the Fraziers to tell them that he was leaving. Osborne did not see the Fraziers but noted that the conference room door was shut. Osborne returned to where Art Peterson, the shop foreman for the sheetmetal workers, was and told Peterson that he was going home to see how his wife was and he would probably finish watching the world series on television. Peterson told Osborne that he hoped everything was all right and he would see Osborne in the morning. Peterson asked Osborne if the Fraziers had said anything. Osborne told him that they had not said anything. Osborne thereupon went home for the day. H. The Termination of Osborne Sometime, apparently shortly after 3 p.m., Dean Frazier had occasion to want to see Osborne to talk to him. Frazier went out to the supply room.2`1 Frazier looked for Osborne but did not see him. Frazier thereupon spoke to William Allen.26 Allen told Frazier that Osborne had quit. Frazier asked Allen in effect if he were sure of what he was saying and what was the basis of his statement that Osborne had quit. Allen told Frazier that the reason he said Osborne had quit was that Osborne had said he was going home to watch television and he had left around 2:30 p.m. Dean Frazier returned to the conference room and told his lawyer, his brother, and Schurkamp that Osborne had quit, that he had questioned Allen about the matter, and that Allen had said that he knew Osborne had quit because Osborne had said that he was going home to watch television and had then left aroti id :30 p.m. to go home.27 Dean Frazier then related to the others that he had told Osborne during the preelection campaign period that because of the confusion Osborne had caused, he did not see how the Respondent could keep Osborne. Dean Frazier asked the others what they should do now. Frazier's lawyer stated that the Respondent did not have to do anything; if Osborne had quit, he had quit. Schurkamp told the others that tomorrow was payday, and that he (Dean Frazier) should tell John Sorensen to get Osborne's time ready so that Osborne could be paid up to date and they could be done with the whole matter. Frazier thereupon went to see the paymaster and told him (John Sorensen) to get Osborne's time made up because Osborne had quit. Sorensen informed Frazier that the normal payroll for the week (ending on Wednesday) had already gone to the computer service and the time for the day Thursday, October 6, 1966) would normally be paid the following week. Frazier told Sorensen to make a special check to give Osborne for the hours turned in that day and to give him this when he came in for his other check (the normal weekly check). Todd Tilton Quits2s Before the 2 p.m. representation election, Emmet "Todd" Tilton told Sheetmetal Foreman Arthur Peterson in effect that if the Union did not win the election he was going to quit. After the representation election, apparently around 4 p.m., Tilton told Peterson that he was quitting "tomorrow," he was turning his time in, and Peterson could let "them" know. Peterson asked Tilton if he wanted him to let "them" know or was he going to tell them himself. Tilton told Peterson to tell the Respondent. Around 4:15 p.m., Peterson went to where Robert and Dean Frazier were and informed them of Tilton's "quitting." Dean Frazier told Peterson that if this was the way Tilton felt about it and if Tilton wanted to quit, Tilton could quit that day. Apparently, Peterson relayed the 21 The facts are based on the credited testimony of Osborne Considering the timing of other events, the election date, and Osborne's credited testimony , I fix the timing of this event as being around September 28, 1966. 22 The facts are based on Osborne's credited testimony. 23 Apparently Osborne used the telephone and called Dean Frazier. 24 The facts are undisputed regarding the election and time thereof. The facts relating to the events surrounding Osborne's activities on October 6, 1966, are based on a composite of the credited testimony of Osborne and Peterson Peterson , from his testimony, revealed that he paid little attention to the event To the extent that his testimony is not as complete as Osborne's, I am convinced it is because he did not pay great attention to the incident. 25 The facts are based on Dean Frazier 's testimony as credited 2e Allen and Osborne worked in the same supply room area. 27 The facts are based on a composite of the credited testimony of Dean Frazier, Schurkamp, and Robert Frazier and a fair inference from all of the facts 28 The facts are based on the credited testimony of Peterson 299-352 0-70-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD message to Tilton and Tilton quit as of the end of the day on October 6, 1966. Events of October 7, 1966 On October 7, 1966, Osborne reported to work at his regular reporting time.29 Osborne arrived at work around 7:45 a.m. Around 8 a.m. Dean Frazier was in the process of making job assignments. Osborne waited for his assignment and asked Frazier if he were in or out. Frazier told Osborne to fill out his time for October 6, 1966, and that he could pick up his check at noon. Osborne did so. The testimony of Respondent's witnesses is confusing as to when Tilton received his pay. Sorensen attempted to explain the difference in treatment as to final pay for Tilton30 and Osborne by saying that Tilton had indicated that he would not be back on October 7, 1966, for his check and therefore the check for the October 6, 1966, hours went through the computer service resulting in a check on October 14, 1966. Schurkamp attempted to explain the difference between the way Tilton and Osborne received their final pay by stating that it was because the Respondent learned too late that Tilton had quit on October 6, 1966, to process a check in the same manner as they did in Osborne's case, and that when Tilton came in on October 7, 1966, he had said to mail the difference in pay (for hours on October 6, 1966) to him. The General Counsel contends that the totality of the evidence reveals that the Respondent was discriminatorily motivated in the termination of Osborne's employment status on October 6, 1966. The General Counsel contends, in part, that the difference in the way that Tilton and Osborne received their final pay constitutes evidence of discriminatory motivation. The Respondent contends that it was not discriminatorily motivated in its actions toward Osborne and that Osborne quit and was not fired. As to Respondent's contention that Osborne quit, I conclude and find from all of the evidence that Osborne did not quit on October 6, 1966. Osborne credibly testified to the effect that he did not quit. In my opinion, as to this point, the credited testimony of Peterson constitutes evidence that Osborne did not quit. Peterson credibly testified that Osborne told him that he was going to go home and watch television, he filled out his timecard, went up toward and into the office and returned, he (Peterson) did not recall saying anything to Osborne, and at the time that he (Peterson) didn't feel there was any more to it than that. If Osborne had actually quit on October 6, 1966, I am convinced that he would have exhibited by word and deed to Peterson, on the occasion of his leaving, that he was quitting. Peterson's testimony reveals that Osborne's leaving was not indicative to him that Osborne was quitting. 21 The facts are based on a , omposite of the credited testimony of Osborne and Dean Frazier 30 Who was paid by checks through the computer service 'i Sorensen testified in effect that "normally," if an employer left the shop for matters other than business, the employee reported to his immediate supervisor. Sorensen also testified that if the immediate supervisor was not available, that since he (Sorensen) "normally" was in the office, the employee reported to him I am not persuaded that Sorensen's testimony reveals a firm and fixed policy as regards to reporting to the immediate supervisor or Sorensen Sorensen's use of the term "normally" is Some contention has been made with respect to whether Osborne followed normal procedure in leaving on October 6, 1966. The answer to this is that there is no contention that Osborne was fired for leaving the job without permission on October 6, 1966. Moreover, Osborne credibly testified that the rule for him, Bill Allen, and Peterson was that "if we went off the job we was to leave a note to tell a foreman supervisor where we were going." Osborne also credibly testified that on one of two occasions he had asked permission to be off in the past, he had asked Dean Frazier, and on the other occasion he had told Milt Saxton, the office secretary.-;' The facts persuade that there was a difference in treatment of Osborne and Tilton as to their final pay. I am convinced that if the Respondent had been motivated by nondiscriminatory reasons, Tilton and Osborne would have received their final pay in a similar fashion. Both Robert Frazier and Dean Frazier knew by the end of the workday on October 6, 1966, that a "special check" had to be made to pay Osborne for his hours October 6. Both Robert and Dean Frazier knew that by the end of the workday on October 6, 1966, that Tilton had "quit" that day. The facts clearly reveal that Osborne's check would be signed by noon. I find no logical basis for distinction between the handling of Tilton and Osborne as to their last pay. Even assuming that Tilton was not coming in to get his October 7, 1966, check, it is clear that a "special check" could have been issued and the two checks mailed to Tilton simultaneously. As indicated previously, the facts reveal that Osborne did not quit on October 6, 1966, and Osborne's status had ceased being that of an employee because of Respondent's action. This action of the Respondent was thus tantamount to the action of discharging Osborne. That the Respondent did not consider Osborne as being a simple "quit" is revealed by Dean Frazier's action in asking other officials what they would do about it. If Dean Frazier had thought that Osborne's action was a simple "quit," there was no basis for concern. The answer to this would have been simple, that Osborne had quit. Dean Frazier's concern clearly reveals that he believed that Osborne was reacting to his (Frazier's) statement that due to the confusion caused by Osborne,32 that if the Union lost the election, Respondent could no longer use Osborne. Considering all of the foregoing, including Respondent's propensity to discriminate against Osborne because of his union activity and testimony in the representation hearing as revealed by the handling of the health and welfare fund payments, and considering Dean Frazier's statement to Osborne as to Respondent's not having use for him if the Union lost the election, I conclude and find that the facts preponderate for a finding that the Respondent discriminatorily terminated Osborne on October 6, 1966, indicative that there were exceptions to the testified method Considering that Allen, Peterson, and Osborne worked in the shop and supply area, I find Osborne's testimony more reliable as to the scope of the rule as to who to report to 32 Under the circumstances (as Dean Frazier admittedly knew that Osborne's wife was pregnant, and Allen, who related the facts as to Osborne's leaving, was antagonistic toward Osborne), it is hard to believe, absent discriminatory motivation, that Dean Frazier would not have checked into the circumstances of Osborne's leaving more carefully than he did FRAZIER, INC. but on the pretextuous basis that Osborne had quit.33 By such action the Respondent discriminatorily terminated the employment of Osborne on October 6, 1966, in violation of Section 8(a)(1), (3), and (4), I so conclude and find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which is found necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act.34 Having found that Respondent violated Section 8(a)(4), (3), and (1) of the Act by discriminatory work assignment to Richard Gary Osborne around September 8, 1966, and by the discriminatory discharge of Richard Gary Osborne on October 6, 1966, it is recommended that Respondent offer him immediate and full reinstatement to his former position, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make said Osborne whole for any loss of pay suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the difference, if any, between the wages he would have earned, absent the discrimination against him , and the amount actually earned, from the date of the commencement of discrimination around September 8, 1966, to the date of Respondent's offer of reinstatement to Osborne, as recommended herein. Such backpay shall be computed on a quarterly basis, and in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. 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. General Drivers and Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is as The totality of the facts further reveals that the Respondent specially handled the method of "final" pay to Osborne because it had compelling reasons to get rid of Osborne " The General Counsel requested and submitted a simplified 535 engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees thereby discouraging membership in or activities on behalf of a labor organization , Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 5. By discriminating against an employee because he had testified in a Board representation proceeding, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 6. The aforesaid unfair 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 the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: Cease and desist from: (a) Discouraging membership in or activities on behalf of General Drivers and Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discharging, laying off, or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of its employees. (b) Discharging or discriminating against employees in their job assignments or as to their health and welfare contributions as a reprisal because they have given or give testimony in a National Labor Relations Board proceeding or because of their union activity. (c) Promising employees benefits as an inducement to cause employees to refrain from engaging in union activities or support of the Union. (d) Threatening employees with loss of jobs or other reprisals if they engaged in union activity. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization to form, join , or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Richard Gary Osborne immediate and full reinstatement to his former position, or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Notify Richard Gary Osborne if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Richard Gary Osborne for any loss of pay suffered by reason of the discrimination against him in proposed notice for posting In accordance with Board policy as set forth in Bilyeu Motor Corp , 161 NLRB 982, the remedial notice has been drafted in simple language 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its premises, in Omaha, Nebraska, copies of the attached notice marked "Appendix."35 Copies of said notice, to be furnished by the Regional Director for Region 17, after being duly signed by the Respondent's representative, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.36 35 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 " 36 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read . "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT promise you benefits in order to get you to keep from engaging in union activities or support of the Union. WE WILL NOT threaten to fire you over the Union. WE WILL NOT discharge you or otherwise discriminate against you because you give testimony in a proceeding under the National Labor Relations Act. WE WILL NOT discriminate against any employee for engaging in union activity. Since it has been found that we did so when we changed the work assignment of Richard Gary Osborne and when we fired Richard Gary Osborne, WE WILL offer Richard Gary Osborne full reinstatement to his old fob, and we will pay him for his loss in pay and similar benefits that he suffered because of his changed work assignment and discharge. If he is presently in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL NOT discourage union activity or membership in General Drivers and Helpers Union Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , or any other labor organization, by discharging , or discriminating against you if you choose to engage in union activity or join Local Union 554, or any other union. You and all of our employees are free to become, or to refrain from becoming members of any labor organization. FRAZIER, INC. (Employer) Dated By (Representative) (Title) Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and after a trial in which all parties had the opportunity to present their evidence and from which it has been found that we have violated the National Labor Relations Act (Law) and it has been required that we post this notice and abide by what we say we will do in this notice, and in order to 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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri, Telephone FR 4-5282.