T.V. and Radio Parts Co.

T. V. AND RADIO PARTS COMPANY T. V. and Radio Parts Company, Inc. and Chauffeurs, Teamsters and Helpers, Local Union 491 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 6 CA-9840 June 2, 1978 DECISION AND ORDER BY MEMBERS PENEL. LO MURPI'Y. AN[) TR I.SD)AI.I On January 30, 1978. Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Lasw Judge. to modify his remedy,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National L.abor Relations Act, as amended. the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. T. V. and Radio Parts Company, Inc.. Uniontown. Pennsylvania. its offi- cers, agents. successors, and assigns. shall take the action set forth in the said recommended Order. In the compl.lnt. the (;eneril ( ounsel .llegcd. r,lrcc iii. thlat Respon- dent unl:uvfull.I uilthheld promised ;age increc;sesc hecau; f The elllphux ees' organizing activits. l he Aldminimtraiic, . Jde l d found tha sitch conduct violated Sec. 8I(a) I if the Act I he complaint also alleced that the regional manager's remarks tio emploh!c F ullem " kino% souT Iilttntlnis . .ou know. the emploees' Intentiols" uh.en he infoilnied :ullei iof the raise cancellation. additionalis cionslIuleed Ain llnlilUitfil Iliterrciltlon Here. Ihe Adminlslrllive la u Judge first noted Ihal it as, unnece sarrs It determine whether the regional manager's renmarks Il I ullnci aniolnited Ilo an unlaiful interrogatiion in ieu if Ithe facl ith;l hie Ihd ahlecad ftlni d lhall the cancellatiorn of the railses slillated the Act tli)vscer. at Ihe concIlusinI of his Decislon. the Admilnlslratlse I.au iJudc laffirmatlels fSound thai RKe spondent had noit coercivels interrogatecd ils ceipilosee s lie (icneral (i Iun sel has excepted to this laller finding. We agree 5ith the Admnilnlratlxce I[iau Judge that no unlawful incrrlgalllln ocicurred in this proccediing I he coln- ments made hs the reclInal] mana3er sacre no mioires than . prclulde to his statement regarding the canceilatln iof rllse antd did not rneccssarl\ ior impilhils invi.te Fullcrni to illscilsc his unloi s.mpaIlidi es If ( R I ( ,r/)o lion and Jl n,Diii,iei. 216 NI.RB 34 1975i 2 Ihe Adminisitrallse l.a. Judge neglected to cLitc Ii I.l(irll ( IIn pain, 90 NilRB 289 (1950) . in reg.rd i tIhe hakpts I awIard. and IS I.ii PuIh in, H'alintg (o. 138 Nl RB 716 (19h621. in regaird to the ilcrcest ilherconl. DECISION STATFMFNT OF 1HF CASF PAil. Bl(;,\FR. Administrative Law Judge: This proceed- ing. with all the parties represented, was heard on May 24, 1977, in Uniontown. Pennsylvania, on the complaint of the General Counsel issued on February 24, 1977,' and the answer of T. V. and Radio Parts Company. Inc.. herein called the Respondent or Company. In issue are the ques- tions whether the Respondent. in violation of Section 8(a}(3) of the National Labor Relations Act, as amended, discriminatorilN discharged employee Gregory W. Mona- ghan because of his protected union and concerted activi- ties and whether the Respondent, by this and other con- duct, interfered with, restrained. and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act.: At the close of the hearing. onl, the Respondent argued its case orally. Subsequently. briefs in support of their respective positions were filed by the Gen- eral Counsel and the Respondent. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties. I make the following: FI\.DsIN;S AND (O )NCI SIONS I ll til SINESS Of 1lnF RESPONDFNT The Respondent. a Pennsylvania corporation with its principal office located in Uniontown. Pennsylvania, is en- gaged in the retail and wholesale business of selling elec- tronic parts. This case is concerned only with the Respon- dent's Uniontown facility, which is I of some 18 stores operated by it. During the 12-month period immediately preceding the issuance of the complaint in this case, the Respondent's gross revenues derived from its operations exceeded $500.000. During the same period. it received for use at its UIniontown facility goods and materials valued in t' ie .omplaI.t i h.ised on ,rigin.il and amended ch.arges ficed bh Ihe t 'nlion Dc I)ecmber t11 197T. and F chriuar 22, 1977. respecl.e copies of uhiih ,ere dtl', served on the Respondenl bh registered madl on l)ecember 31) 197h. nid i chltari,.r 24 1977. reapcotiel.s Subhsequcnt I the issuance of the inst .liit sompllil it Ill ( A41)4 (iase 6 ( \ II0194. Invlsin.g il leged dlillnlniltnllT I .I1ginst a.iilher emphlsee, Ltinn AlienF ullcmr. ia, wensohli:eld ith ( ie 6 ( \ 9840 1 hereafter. (iase : (CA IIK94' uhlch iso infirinllll :idjutd heli cen (he par.lics as, seered from the preseint Sc, Si. I ) of the Act malkc it all unfair labor pr.atli.ce for in eniploescr "to interfcrce lih, rcstr.oin ri cer,.e eTipJtr,ecs in Ih cexrcise of the righti guaranteed in section '" Insofar as pertilnent. Set - pro.ilde, thil. "Ilt]mployees shall haec the right Io self-o rgaa.ln.Inn ,ii feform, ioi or :T l labor orgalnizantions. to hargain collecslsels through represen llmI cs! the ir own choolsing. and Io engage in other conicertcd acilsciles for the purp.oe 4if collective bargaining or other mutual iidt oir prOlctill . Sec 8(a I13L with certain qualiflcation, not m;aterial herin, pilih}lllt a. emplilver "hb discrimination in regard to hire or tenure of cnliopn1iillt ii an, term or condihion of emplohment to encourag e or dlnSiClrair.c Tlilhe shin in ins labor orglni,ilalon ' - Errors in the Irinscrlpt have been noted and corrected 236 NI.RB No. 73 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of $50,000 which were shipped to it indirectly from points located outside the State. It is conceded, and I find, that the Respondent at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Chauffeurs, Teamsters and Helpers, Local Union 491 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III TtIE ALLEGEiD NIIFAIR I.ABOR PRACTICES A. The Evidence 1. Events preceding the advent of the Union; the Respondent's policy or rule against employee wage discussions During the time period with which this case is con- cerned, the Respondent employed at its Uniontown store four employees classified as counterman or truckdriver. They worked under the immediate supervision of Store Manager Anthony M. Shiner, processing and filling orders obtained from dealer-customers by two road salesmen 4 and waiting on store customers. In addition to these func- tions, the truckdrivers made deliveries of the merchandise to the dealers. Shiner's superior was Regional Manager Marvin Weinberg who, in turn, reported to General Man- ager Herbert DeMuth. As will later appear, the Union was only interested in organizing and representing the four countermen and truckdrivers. It is conceded that for some time the Respondent has had in effect a policy or rule prohibiting employees from discussing their respective wages among themselves. Shiner explained that the reason for the policy or rule was that wages and salaries were determined on the basis of merit and performance and not seniority. Notwithstanding the prohibition, it appears that wages did become a subject of conversation among the employees. As a consequence. on several occasions beginning in early 1976,5 after Shiner was promoted to store manager. Gregory Monaghan, a coun- terman whose discharge will later be considered, accompa- nied at times by another employee Jeff Tarpley, asked Shiner for a raise for the employees because of their in- creased workload. Receiving no satisfaction from Shiner, Monaghan and Tarpley approached Regional Manager Weinberg with their request. Apparently, this effort also proved to be unproductive because in or about June at the Company's trade show Monaghan requested General Manager DeMuth to meet with the employees to review the wage situation at the store. DeMuth rejected the re- quest, informing Monaghan to go through proper channels. Subsequently, however, in June or July, Monaghan re- 4 Shiner apparentlv had limited autlhorit? over these road sa;lesmeln Alo under Shiner's supervision was a secretars Unless otherwise indicated, all dales refer to 1976. ceived a 10-cent hourly increase 6 but not without being told 2 weeks later by Weinberg, in Shiner's presence, that he should not talk about his wages with fellow employees or other persons. Monaghan responded that it was his be- lief that he had a right to discuss any matter with anybody. Lynn A. Fullem, who was hired in August 1976 as a counterman, had two or three conversations with Shiner in September concerning his wages which he compared with those of other employees. On each such occasion, Shiner admonished Fullem not to discuss his wages with other employees. Shiner admitted advising employees of the Company's no-wage-discussion policy or rule and caution- ing them not to engage in such conversations with fellow employees. He further testified that he was unaware that the Company's policy and its enforcement were unlawful. Although Shiner also asserted that the policy was no longer in effect since the Union's appearance at the store, he con- ceded that the employees were not so informed by the Re- spondent. 2. The December raises; the advent of the Union and request for recognition; the withdrawal of these raises During the first week in December, employee Fullem requested, as he had done before, a wage increase from Store Manager Shiner. Shiner was receptive and on De- cember 8 advised Fullem that he was granted a 25-cent hourly raise. Employee Joseph Partyka was similarly suc- cessful in his effort to secure a wage increase. In the second week in December, he asked Regional Manager Weinberg for an increase. Weinberg stated that he would try to get it for him and a few days later informed Partyka that the raise was approved and that it would be reflected in his next check scheduled to be paid in a week and a half. Shiner testified that he had recommended 7 to his superi- or, Weinberg, wage increases for Fullem and Partyka but not for Monaghan. However, Weinberg brought up the question of a raise for Monaghan and, despite Shiner's op- position, Weinberg decided to include Monaghan in the raise. In the meantime, before the raise could be reflected in their paychecks, the employees gave thought to the idea of joining a union. On or about December 13, employee Ful- lem visited the Union's hall where he discussed with Busi- ness Representative Courtney union representation for the Respondent's Uniontown employees. After explaining the procedure for achieving such respresentation, Courtney gave Fullem four union booklets each containing a detach- able union authorization card for distribution among the four employees comprising the proposed bargaining unit. Following this meeting, Fullem distributed the booklets among the employees, retaining one for himself. All four employees filled out and signed the detachable authoriza- tion card. On December 21, Fullem, Monaghan, and Par- tyka met with Courtney at the Union's hall where the four previously executed authorization cards were handed over ' it appears that employee Tarpley was also given a raise at or about the samne lime. Shiner teslified that the normal procedure for obtaining wage raises for emploNees was for him to submit his request to Regional Manager Wein- berg who, in turn, would forward ihe request to General Manager [)eMuth 690 T. V. AND RADIO PARTS COMPANY to Courtney. The meeting ended with Courtney informing the employees that the next morning he intended to file a representation petition with the Board and to send the Re- spondent a letter requesting recognition as the employees' bargaining representative. Accordingly. by letter dated December 22, Courtney no- tified the Respondent that the Union represented a majori- ty of the Company's Uniontown employees as their collec- tive-bargaining agent and requested recognition.8 This letter was received by the Respondent on Friday morning. December 24, when Fullem picked it up for the Company at the post office and handed it to Store Manager Shiner who, in turn, forwarded the letter to the appropriate com- pany officials for response. Later in the day, about I p.m.. Shiner spoke to Fullem in the former's office and told him that the Union's letter had ruined his Christmas vacation. Fullem thereupon made the comment that he saw no rea- son why Shiner's vacation should be affected. When Shiner arrived home about 4 p.m. after the store had closed early because of the Christmas holiday. he invited Fullem, who was also his next-door neighbor, to take a drive with him. Fullem accepted and Shiner used this occasion to repeat that the Union's letter was ruining his Christmas vacation. Fullem replied that the Union's letter should be "no skin off . . . [Shiner's] nose." This led to Shiner's remark that, as the manager of the store, "he would have to assume that it was the senior employee, Greg Monaghan" who origi- nally went to the Union but that, between Shiner and Ful- lem, he knew that it was Fullem who "did it." Fullem, who had actually made the initial union contact. however, did not reply. As will later be discussed, Monaghan was discharged on December 28. The next day (December 29), Fullem was summoned to the office where, in the presence of Shiner, Regional Manager Weinberg told him "that he knew . . . [Fullem's] intentions." When Fullem inquired what Wein- berg meant by that statement. Weinberg replied that Ful- lem knew, adding the phrase "the employees' intentions." Weinberg then continued that, as of this date. all raises were canceled. In the course of this conversation, Wein- berg also alluded to the Union's letter requesting recogni- tion, which he said he had forwarded to the Company's attorneys. Employee Partyka was also called to the office a few days after Monaghan's dismissal and was similarly ad- vised by Weinberg, in Shiner's presence, that his raise "wouldn't go through until the Union issue was settled." 3. Monaghan's employment and discharge Gregory Monaghan worked for the Respondent as a counterman at the Uniontown facility from February 1974 until December 28, 1976, when he was terminated under circumstances related below. His immediate supervisor during most of 1976 was Store Manager Shiner.9 Mona- 8 A the same time, Courtne, also mailed a representation petition (('ase 6-RC-7705) to the Board's Regional Office. A Board election was held on February 8. 1977. among the C(ompanN's countermen and truckdriser, at the Uniontlon facility, which resulted in the nion's certificatioin as the exclusive bargaining representative of such employees in the appropriate unit ghan was given a 10-cent wage increase in June or July of that year and was informed in the early part of December that he was granted another raise. However, as indicated above, the December raises for all employees were with- drawn following the Union's request for recognition. Like the other three employees, Monaghan had previously sub- mitted his signed authorization card to Business Represen- tative Courtney on December 21. The record contains no evidence of any other union involvement on Monaghan's part. On Saturday afternoon. December 25, Monaghan and a friend. John Rae. drove to a ski resort at Seven Springs, Pennslvania. about 35 to 40 miles from Uniontown, with the intention of returning Sunday evening, December 26, as both of them were scheduled to work the next day. ° About 5 p.m.. December 26, after watching the Steelers- Oakland football game on television at the resort, Mona- ghan and his friend attempted to leave for home but were unable to drive their car out of the parking lot because of an accumulation of a foot of snow dropped by a snow- storm. At that time, it was still snowing and no road crews had vet cleared the parking lot or the roads. As a result, Monaghan telephoned his mother that Sunday evening, in- formed her of his inability to leave for home because of bad road conditions, and told her to call the store and advise them that he could not make it back that evening, December 26. and that he would report to work as soon as he could. Not hearing from her son the next morning. Monday, December 27, Mrs. Monaghan telephoned Shiner shortly after 8:30 a.m. and conveyed her son's message that he was snowbound at Seven Springs and that he would try to be in to work later that day or, if he could not make it by that time. he would report the following day, December 28. Shiner simply answered "Okay." According to Shiner's tes- timony, after receiving Mrs. Monaghan's telephone call, he decided to discharge her son upon his return to work.tt However, Shiner did not convey his intention to Mrs. Monaghan. Shiner further testified that he doubted the truth of Mrs. Monaghan's message that her son was snow- bound in Seven Springs because. as later discussed, she had previously lied to him when she had called in on November 29 and 30 to report that her son was ill when her son was actually away deer hunting. Early in the afternoon of December 27, Monaghan and his friend were able to move their car out of the parking lot at Seven Springs and to depart for Uniontown, arriving there about 1-1/2 to 2 hours later between 3:30 and 4 p.m. Because normal quitting time at the store was 5 p.m., Mon- aghan did not bother to report for work that day. ' Shiner ssorked as a counterman wlth Monaghan until about Januars 1976 when Shiner sas made assistant store manager with limited authorits oser Monaghan. Shiner became a full-fledged store manager 4 months later " Ra;le s hio, as emplioed by a company other than the Respondent. sas actually scheduled to work the midnight shift of December 26 27 " Shiner testified that the store sas ver, busy on December 27 because of custiomer returins of defectise merchandise and Monaghan's absence created problems in handhling these malters flowseser, it s also noted that, accord- ing ti Parli ka's uncontradicted testimon?. which I credit. Shiner told him noll io make a scheduled delivers in ('larksburg. west Vlrginia. on Decem- ber 27 because of bad roald conditiotis created by a snowstorm the preslous das 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 8:30 the next morning, December 28. Monaghan came to work. An hour later, Shiner summoned him to his office to inform him that he was discharged because he (Shiner) could not depend on any individual who missed work any time he wanted to, as Monaghan had done. Monaghan replied that he thought it was unfair to dis- charge him, explaining that he was snowed in at Seven Springs and there was no possible way for him to get to work safely on Monday, December 27. Shiner, however, pointed out that on Monday morning, December 27. he himself had driven back to Uniontown from Johnstown, passing within 12 to 18 miles of Seven Springs, without encountering any impossible road problems.)2 In answer to Monaghan's inquiry whether his mother had contacted Shiner the morning of December 27, Shiner admitted that she had. The foregoing account of Monaghan's termination inter- view reflects his credible testimony. I also credit Shiner's undisputed and plausible testimony that he specifically mentioned to Monaghan the 3 days that he missed from work in December as the reason for his discharge. How- ever, I find that, in addition to Monaghan's December 27 absence, Shiner really meant to refer to Monaghan's No- vember 29 and 30 absence when he went deer hunting for which Shiner on December 1 planned to dock Monaghan for 2 days' pay. The evidence pertaining to the November 29 and 30 absences is as follows: About a week before November 29, Monaghan asked Regional Manager Weinberg for permission to take off on November 29, which was the opening day of the deer hunt- ing season in Pennsylvania. 1 Weinberg's response was for Monaghan to seek such permission from Store Manager Shiner. Accordingly. Monaghan approached Shiner with his request. Shiner, however, refused to grant permission for the asserted reason that it was the busy' season and Monaghan could not be spared but was needed in the store, even though Monaghan pointed out that the situa- tion was no different from that in the previous year when Weinberg, then the store manager, had given him the day off. At the end of the workday, as Monaghan was leaving the store, Shiner reminded Monaghan, in effect, that, if he took the day off, "then that would be it." which Monaghan understood meant that he would be fired. Despite the warning, Monaghan was absent from work. not only on November 29, but also November 30. to go deer hunting. However, Monaghan had his mother call Shiner at the store on each of those days falsely to advise that Monaghan would not be in because of illness. Accord- ing to Shiner, when he received the first call from Monaghan's mother, he did not suspect that Monaghan was out deer hunting. However, after he unsuccessfully | Shiner testified that he spent ( hristmas weekend in Johnston. Penn- s Ilvania. which was located 68 miles from t nitontown n that. while at Jtohns town. there was a s'ers severe" snowfall and that he left Johnsto n n:30 Monday morning. L)ecenhber 27. arriving in Uniontov, n about 8:05 ami i. time to open up the store "1 Weinberg. who was the store manager the previous sear, had gisen I hin1 such permission at that time 14 Shiner testified that i on this o(ccalsiton the entire work force was kiddinel about taking tff the first das of the hunting season and that he warned hemti against doing it tried to reach Monaghan at his apartment and then at his mother's home during the day to ask Monaghan about a store matter, he (Shiner) became suspicious. Nevertheless, when Mrs. Monaghan again called in sick for her son on November 30, Shiner did not question her about her son's purported illness. On December 1, Monaghan reported for work. Some- time in the morning, Shiner called Monaghan to his office where he informed him that he could not tolerate his taking off whenever he felt like doing it; that he did not believe that Monaghan was really sick on November 29 and 30; and that therefore he was going to dock Monaghan 2 days' pay for the 2 days he had missed work.' 5 Although admit- ting that he was out deer hunting, Monaghan argued that this penalty was unfair as he had sick days coming to him which he thought he was entitled to use as he saw fit, add- ing that, if he were not paid for 2 sick days, he would see what he could do about it. Managhan then suggested a compromise whereby he would be docked for only I day's pay and given I day of sick pay. After further discussion, Shiner ultimately relented and allowed Monaghan 2 days' sick leave without loss of pay.? During the course of their conversation, Monaghan directed religious slurs at Shiner, which also disparaged one or more of the Respondent's officials."'7 Shiner testified that, because of Monaghan's ab- sence and the disparaging language he ured in their De- cember I conversation, he decided to discharge him as soon as the Christmas season rush was over. Asserting in his testimony that the discharge decision was solely his, Shiner not only categorically denied that union considera- tions entered into his decision, but he also disclaimed any knowledge of Monaghan's participation in union activities. Indeed, it appears that Monaghan's union involvement solely consisted of executing an authorization card desig- nating the Union as his bargaining agent, as did his fellow workers. For the evident purpose of demonstrating that Mona- ghan for some time prior to the advent of the Union had been a far from satisfactory employee, the Respondent pre- sented testimony concerning past problems which it had with him. Thus, in addition to Monaghan's unauthorized and defiant absence on November 29 and 30, as noted above, there is testimony in the record concerning Monaghan's alleged threatened assault upon Shiner in Jan- uary or February 1976: his placement on probation in June of that year allegedly on account of his poor attitude to- ward Shiner. the Company, and its policies, his tardiness, and his unacceptable dress appearance: in September of that year his injecting himself into a conversation which Shiner had with a customer and allegedly using foul lan- Milonaghan credihl% testified that. in the course of this cinsersatllon. he explained to Shiner that the reason he had taken 2 dass m!ff rather than I was the fact that Shiner had threatened tio fire him Shiner replied that he did nol reathze that he had made a threat and aIpologlzed If he did " Shiner testified that he paid Moinaghan for his 2-das absence in oirder toi aloid inslsnement in an} proceedings Monaghan threatened tio bring to collect his pas during the bus. (Christmas season and that he did not tertmi- nate Mon;aghan at that time because he could not adequately train a re- placement toi handle the _joh during such huss sealon.n t Ihe foregoing findings pertaining it the )ecember I episode etmhod! parts of the testimon!s of M\onaghn and Shiner hlth. I believe. indicalte what plihabhl occurred nn that occasion 692 T. V. AND RAI)IO PARIS COMPANY guage; and in October his wearing unkempt clothes. How- ever, the record does not persuasively demonstrate that the incidents preceding the November 29-30 episode entered into the discharge decision. In fact, it appears that either no disciplinary action was previously taken against Mona- ghan or that Monaghan's shortcomings were remedied and his performance improved. Moreover, as noted above. Monaghan was granted a wage increase in June and in December Shiner was overruled by Weinberg who includ- ed Monaghan in another raise given employees. In view of my ultimate determination herein, infra, it would serve no useful purpose to belabor Monaghan's asserted past unsat- isfactory performance. B. Concluding Findings I. With respect to Monaghan's discharge The General Counsel contends that Monaghan's dis- charge was due to his union activities and that the Respon- dent thereby violated Section 8(a)(3) and (1) of the Act. Denying that such was its reason, the Respondent main- tains, in substance, that Monaghan. with whom Store Manager Shiner had problems for some time, was termi- nated because of his unauthorized absences on December 27 and November 29 and 30. The critical question thus to be resolved is purely a factual one of motive. Since it is the rare case where there is direct evidence of unlawful motiva- tion-and this case is not one-all the facts and circum- stances surrounding the termination must be carefully evaluated in an effort to ascertain the true reason for the employer's action with due recognition being given to the settled principle that an employer may discharge an em- ployee for any reason, good, bad, or indifferent, so long as he is not prompted, in whole or in part, by the employee's union or concerted activities. Of course, an employee's union involvement does not insulate him from discharge for nondiscriminatory considerations. Viewing the total factual picture here. I am not persuad- ed that the General Counsel has sustained his burden of proving by a preponderance of the evidence that Monaghan's discharge was because of his union activities rather than for cause. As noted above, it was Monaghan's absence on December 27 which precipitated his dismissal when he returned to work a day late following the Christ- mas holiday weekend. Whether or not Store Manager Shiner was unreasonable in not excusing Monaghan's De- cember 27 absence because of the snowstorm, it does not inescapably establish that the termination was traceable to pretextual or union-related considerations, as the General Counsel argues. Unquestionably, an employer's unreason- ableness is not the statutory equivalent of discrimination, although it might be a factor to weigh along with other factors. Indeed, in the present case it appears that Shiner had justifiable grounds for doubting that Monaghan's ab- sence was caused by the snowstorm or was completely be- yond his control. Thus, early in the morning of December 27 Shiner himself, who had spent the Christmas weekend in Johnstown, which is approximately twice the distance from Uniontown as Seven Springs, where Monaghan had sojourned, managed to drive to the Uniontown store in time to open it up at the usual hour that morning, passing Seven Springs on the way within 12 to 18 miles. Moreover, Monaghan's December 27 absence was the second unau- thorized one in a month. As shown above, on November 29 and 30. Monaghan took off to go deer hunting, despite Shiner's refusal to grant him permission to do so and Shiner's admonition that he risked discharge if he failed to come to work. Yet, on this occasion, Monaghan had his mother telephone Shiner on each of those days falsels to report that her son was home ill. With this experience, it is not too difficult to understand, as Shiner testified, why he attached no credence to Mrs. Monaghan's message on De- cember 27 that her son was unable to come to work that day because he was snowbound at Seven Springs. In these circumstances, there is no convincing basis for an inference that Monaghan's discharge on December 27 was pretext- ual, especially since, as Shiner testified, he had intended to terminate him after the Christmas business rush because of his defiant absence on November 29 and 30. On the con- trary. it is not implausible to assume that Monaghan's ab- sence on December 27 only served to confirm Shiner in his determination to dismiss him, even though earlier in De- cember, Regional Manager Weinberg had overruled Shiner and included Monaghan in an employee wage increase. The fact that the Union's request for recognition was for- tuitously received in the meantime on December 24 by Shiner, who expressed concern over it even though he ap- parently had no labor relations responsibilities, certainly did not foreclose Shiner from discharging Monaghan for his subsequent absence which he (Shiner) viewed as inex- cusable. Indeed, Monaghan's union involvement, assuming it was known to Shiner. was minimal at best, consisting of nothing more than signing a union authorization card. as his fellow employees had also done, and, therefore, could hardly be regarded in the context of the facts herein as union activity which would normally invite reprisals. Equally not warranting a finding of discrimination is the General Counsel's suggestion that the Respondent shifted reasons for the discharge when Shiner also testified that he decided to terminate Monaghan because of his disparaging remarks directed at Shiner during their conversation on December 1. However, those statements were made at a time when Shiner undertook to discipline Monaghan for his willful absence on November 29 and 30 by docking him for 2 days' pay. Manifestly. Shiner's reference to Monaghan's remarks cannot convert Shiner's reliance on Monaghan's absence into a dubious afterthought or other- wise furnish a basis for finding the discharge to be unlaw- ful. Lastly, I am unable to find, as the General Counsel urges, improper motivation underlying Monaghan's dis- charge in the fact that the Respondent, long prior to the advent of the Union, prohibited employees from discussing their wages among themselves and following the Union's request for recognition withheld a scheduled increase.s While such conduct is subsequently found to be in viola- tion of Section 8(a)( 1 } of the Act. it is not dispositive of the i [he Respondent argrue that it Withheld the Increase to aolid beng charged with an unfair labor practice for implIementing ail inreare to di.,- ourage unilln nIemilherr hip 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) question of the reason for Monaghan's separation in light of all the evidence related above. Perhaps the Respondent's 8(a)(1) conduct might arouse suspicion of an inclination on the Respondent's part to discriminate against employees to discourage unionization. However, suspicion is not an ade- quate substitute for probative evidence which the Act re- quires to support a finding of discrimination. In sum, I conclude that the evidence does not substanti- ate the allegations of the complaint that Monaghan was terminated in reprisal for his union activities. Accordingly, the relevant 81a)(3} and ( I } allegations of the complaint will be dismissed. 2. With respect to interference, restraint, and coercion As noted above, for some time prior to the Union's ap- pearance at the Respondent's Uniontown facility, the Re- spondent maintained in effect a policy or rule prohibiting employees from discussing their wages among themselves. which it admittedly enforced by admonishing employees to observe it. Under settled law,' such a restriction on wage discussions and exchange of ideas tends to deter employees from exercising their Section 7 right to engage in concerted activities for mutual aid and protection concerning an un- deniably important term of employment. As the court ob- served in the Jeannette Corporation case (532 F.2d at 919). "[D]issatisfaction due to low wages is the grist on which concerted activity feeds. Discord generated by what em- ployees view as unjustified wage differentials also provides the sinew for persistent concerted action." Contrary to the Respondent's suggestion, the need for employee wage dis- cussions aimed at improving this term of employment is no less whether wages are determined on the basis of merit rather than seniority. Nor is an unfair labor practice find- ing precluded by Store Manager Shiner's assertion that the prohibition in question is no longer operative. It is well- established law that the mere discontinuance of an unfair labor practice does not absolve the wrongdoer of liability for his prior unlawful conduct. This is particularly so where, as here, employees were not informed of the Re- spondent's change in policy or rule or that steps have been taken to dissipate the effects of its past acts. I have also found above that the Respondent canceled wage increases which it had previously granted to emplov- ees Fullem and Partyka 20 following its receipt of the Union's letter requesting recognition as the bargaining rep- resentative of the Company's employees. The evidence fur- ther shows that it was the Union's designation by the em- ployees as their bargaining agent and the Union's request for recognition that prompted the Respondent's action shortly before increases were scheduled to be included in the employees' paychecks.2' By thus withholding payment of previously approved wage increases because of the Union's intervening appearance at the Uniontown store as 1 Jeannerre ( 'rpritlron, 2 17 NL RB 653. 65,. enfd. 532 F.2d 916 I((' 3. 1975); (Coa i altle ('onvuleh(entl ( enter 224 Nl.RB 1288 (1976). '" Emploee Monaghln was also granted a wage increase i;l Ihe ,,lmle time. However. he wits terminated before it ".as scheduled tol go into effctl : The Respondent's assertion in its brief that a. wage increase %.as t1). discussed hut not granted is clearl? colntrar Ito the undisputed evidence the employees' bargaining representative, the Respondent penalized employees for exercising their statutory self-or- ganizational rights and thereby interfered with, restrained, and coerced them in violation of Section 8(a)(1) of the Act.22 The Respondent, nevertheless, urges as a defense the assertion that it withhled action on the pay increases in order to avoid being charged with unlawfully granting a wage increase to dissuade employees from joining the Union. Apart from the fact that the defense is factually unsupported, the law does not countenance infringement of employee statutory rights no matter how well-inten- tioned or whether the Respondent acted in good faith.23 In view of my finding that the cancellation of the wage raises violated Section 8(a)( ) of the Act, it is unnecessary to de- termine whether Regional Manager Weinberg's remarks to employee Fullem when he informed him of the cancellation additionally amounted to coercive interrogation proscribed by the Act. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and in like and related conduct and that it take cer- tain affirmative action designed to effectuate the policies of the Act. Specifically, to remedy the Respondent's unlawful withholding from employees Fullem and Partyka a wage raise it had granted them effective the latter part of De- cember 1976, it is recommended that the Respondent be directed to reimburse the named employees for the loss they suffered from that date with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). In addi- tion, the previously granted wage increase shall be included in the wages henceforth paid these employees. 24 The post- ing of an appropriate notice is also recommended. 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 an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining in effect, enforcing and cautioning employees to observe, the Respondent's rule or policy which prohibits employees from discussing their wage rates among themselves, the Respondent has impeded employ- ees in the exercise of their Section 7 right to engage in concerted activity for mutual aid and protection and the Respondent has thereby violated Section 8(a)( 1) of the Act. 4. By canceling and withholding from employees Ful- lem and Partyka a previously granted wage increase be- cause employees had designated the Union as their exclu- 2 BRaker ,C fattl/lltluring ( ,. In . 218 NL RB 1295 1307 1t 975)L enfd. 564 F.2d 95 (C. A 5. 1977): Oi, II,yplual. 222 NL RB 412. 403 11976). P B and S (heminial ('lniuitni. 224 NI.KRB I. 11 (1976) '4 BilAr Mlanfacturig ii nt n, 218 Nl RB at 130(9. Otr, Itpwrtal. 222 Nl.RB at 405 T. V. AND RADIO PARTS COMPANY sive bargaining representative and the Union had request- ed recognition, the Respondent has interfered with, re- strained, and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respordent has not discriminated against em- ployee Monaghan in violation of Section 8(a)(3) and ( 1) of the Act or coercively interrogated employees concerning their union membership, activities, and sympathies and those of fellow employees. Upon the foregoing findings of fact. conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following reconm- mended: ORDER 2 The Respondent, T. V. and Radio Parts Company, Inc., Uniontown, Pennsylvania. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining in effect. enforcing or cautioning em- ployees to observe, any unqualified rule or policy which prohibits employees from discussing their wage rates or salaries among themselves. (b) Canceling or withholding from employees Lynn A. Fullem, Joseph Partyka, or any other employee a wage in- crease because employees had designated Chauffeurs. Teamsters and Helpers, Local Union 491 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, as their exclusive bargaining representative or because such Union had requested recognition. or otherwise to discour- age union membership or support. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Rescind and abrogate its rule or policy which pro- hibits employees from discussing their wage rates or sala- ries among themselves and notify its employees that it has taken such action and that they may henceforth engage in such discussions on its premises subject to limitations per- missible under the Act. (b) Reimburse employees Lynn A. Fullem and Joseph Partyka for the wage increases the Respondent has unlaw- fully withheld from them in the manner set forth in the section of this Decision entitled "The Remedy," (c) Preserve and. upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards. personnel records and reports. and all other records neces- sary and useful in analyzing the amount of money due the named employees under the terms of this recommended Order. (d) Post at its facility in Uniontown, Pennsylvania. the attached notice marked "Appendix." 2, Copies of said no- tice, on forms provided by the Regional Director for Re- gion 6, after being duly signed by the Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writ- uag. vwithin 20 days from the date of this Order, what steps have been taken to comply herewith. Ir Is F RTHFER ORDERED that the complaint be, and it herebN is, dismissed insofar as it alleges that employee Gregory W. Monaghan was discharged in violation of Sec- tion 8(a)(3) and (II of the Act and that employees were interrogated concerning union membership, activities, and sympathies in violation of Section 8(a)(1) of the Act. :' In the event no exceptilons are filed as provided hb Sec 102.46 of the Rules and Regulations of the National L ahor Relations Board. the findings. conclusio,n, and recommended Order herein shall, as provided in Sec 10)2 48 of the Rules and Regulations. he adopted by the Board and become its findings. cinclusions, and Order, and all objections thereto shall he deenied vsaied for all purposes :' In the esenl that this Order is enforced b) a Judgment of a l nited Sttes ( Court of Appeals, the words in the notice reading "Posted h) Order of the National Labor Relations Board" shall read "Posted Pursuant to . Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX Nol i( E To EMPLOYEES POSTED BY ORDER OF THE N.A4iNAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence: the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative the, choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these activities. WE WILL NOT maintain in effect, enforce or caution employees to observe, any unqualified rule or policy which prohibits employees from discussing their wage rates or salaries among themselves. WE wILL NOT cancel or withhold from our employ- ees, including Lynn A. Fullem and Joseph Partyka, wage increases because they had designated Chauf- feurs, Teamsters and Helpers Local Union 491 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any' other labor organization, as their exclusive bargaining repre- sentative or because such union had requested recog- 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nition. or otherwise to discourage union membership or support. WE WILL NOT in like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL rescind and abrogate our rule or policy which prohibits employees from discussing wage rates and salaries among themselves and WE WILL notify them that we have taken such action and that hence- forth they may engage in such discussions on our premises subject to limitations permissible under the National Labor Relations Act. WE WILL reimburse employees Lynn A. Fullem and Joseph Partyka for the wage increases we have unlaw- fully withheld from them together with interest. T V. AND RADIO PARTS COMPANY. INC. 696