Great Falls White Truck Co.

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Falls White Truck Company and Clayton Braden. Case 19-CA-4684 November 20, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 30, 1970, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in opposition to the exceptions of Respondent. 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 and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted herein. "(a) Offer to Clayton Braden immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his unlawful discharge in the manner set forth in the section entitled 'The Remedy.' " 3. Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 4. Substitute the following for the first indented paragraph in the Trial Examiner's notice: WE WILL rehire Clayton Braden to his former job or, if that job no longer exists, to a substantial- ly equivalent job and pay him for any loss of wages or income that he suffered, with 6 percent interest. 5. Add the following as the second indented paragraph of the Trial Examiner's notice: WE WILL offer the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondent , Great Falls White Truck Company, Great Falls, Montana, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Substitute the following for paragraph 1(a): "(a) Discouraging membership in Lodge No. 1046, International Association of Machinists and Aeros- pace Workers, AFL-CIO, or any other labor organi- zation, by discriminatorily discharging any employee or by discriminating in any like or related manner with respect to hire or tenure of employment or any term or condition of employment because he files unfair labor practice charges or appears as a witness in a Board proceeding." 2. Substitute the following for paragraph 2(a): STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: This matter was heard at Great Falls, Montana, on May 19, 1970, pursuant to a charge and an amended charge filed, respectively, on February 27 and March 17, 1970, by Clayton Braden. On March 25, 1970, the Regional Director of the National Labor Relations Board for Region 19 issued a complaint and notice of hearing alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties timely filed briefs with me. Upon consideration of the Briefs of the parties and upon the record in this case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Montana corporation engaged in the sale and service of trucks. During the 12-month period immediately preceding the issuance of the complaint 186 NLRB No. 117 GREAT FALLS WHITE TRUCK CO. 691 herein, Respondent's volume of sales and services exceeded $500,000. In the same period of time the total amount of its purchases of goods and materials originating outside the State of Montana exceeded $50,000 and the total amount of sales to firms located within the State of Montana but doing business outside the State of Montana exceeded $50,000. Upon these admitted facts, I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Lodge No. 1046 , International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Union, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that Respondent violated Section 8(a)(4) of the Act by terminating the employment of Clayton Braden on February 25, 1970, 1 because he appeared as a witness and gave testimony adverse to Respondent at the February 24 hearing in Case 19-CA-4567. Additionally, the General Counsel contends that, in violation of Section 8(a)(3) of the Act, the Respondent terminated Clayton Braden because he engaged in protected concerted activities , including the filing of the charge in Case 19-CA-4567 and the filing of a grievance, dated July 16, 1969. The Respondent denies the commission of any unfair labor practices, and affirmatively contends that Braden was terminated because he intentionally performed faulty repair work on certain vehicles of customers referred to Respondent's place of business for repair. B. Pertinent Facts 1. Background facts a. Braden's work and union activities George Gale is general manager of Respondent and actively engages in the management and supervision of the day-lo-day operations of Respondent . Arthur Rugwell is service manager of Respondent and, as a journeyman mechanic, had direct supervision over the work performed by Clayton Braden . Braden was employed by the Respondent in June 1954 and worked in the employ of Respondent until February 25. At the time of his termination Braden was a journeyman mechanic. Since November 1954, Braden has been a member of the Union and has served as a member of the joint apprenticeship training committee, as a delegate to a county trade and labor assembly, and as a shop steward. Additionally, Braden served as a union member of the negotiating committee which negotiated the collective- bargaining agreement currently in effect between the Union and Respondent . The collective-bargaining agree- ment provides for premium pay for overtime work, a maximum of 15 days' paid vacation commencing with the 12th year of employment , and for the settlement of disputes through a grievance and arbitration procedure. b. The vacation pay grievance Clayton Braden testified that in the summer of 1969 he commenced a vacation which was to run from June 30 to July 14. On Monday morning, July 7, Arthur Rugwell contacted Braden by telephone and informed him that a vocational school pertaining to air, oil, fuel, and water systems was being conducted at the shop under the auspices of Cummins Engine Company. Braden responded that he would report at 1 p.m. He did so. He attended the school until 12 noon on July 10. For the period of his attendance he received his regular vacation pay. However, he received no additional compen- sation and, as a consequence , Braden took the view that he was entitled to vacation credits for the time spent in attending the school. c. Dental of pumproom assignment Braden continued his vacation from noon on July 10 through July 14. When he returned to work on July 16, he conversed with George Gale who inquired if Braden would be interested in assuming the duties of operating the pumproom. Braden indicated his interest and Gale informed him that in the latter part of August he would send Braden to a school to receive training in pumproom operations. During the conversation , Braden inquired if Gale was going to give him vacation credit for the time he spent attending the Cummins school. Gale gave Braden no reply. Thereafter, Braden filed a written grievance with the Union contesting, in substance, the failure of Respondent to allow him vacation credits for his alleged compulsory attendance at the Cummins school. On July 21, James Murr , business representative of the Union , and Braden met with Arthur Rugwell in a first-step grievance meeting. Rugwell took the position that the grievance had no validity because Braden's attendance at the Cummins school had been voluntary and not compulso- ry, as Braden contended. Thereafter, later in the afternoon , Braden conversed with George Gale and Arthur Rugwell and during the course of the conversation Gale informed Braden that, as he had filed the June 16 grievance with the Union, he would not be sent to the Kansas City pump school and that he would not receive any more overtime pay. Further, during the meeting, Gale stated to Braden that he was going to have Rugwell pick up the shop keys available to him for off- hours access to the shop. George Gale testified that after learning that Braden had filed his July 16 grievance he changed his mind about sending Braden to school in Kansas City. He testified further, in substance, that during the preceding years All references herein are to the calendar year 1970, unless specifically indicated otherwise 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Braden had filed several grievances and that his decision not to assign Braden to the pumproom and to abstain from sending him to school in Kansas City was reached because Braden was filing grievances "all the time." On July 27, a second-step grievance meeting was held between the Company and the union grievance committees. George Gale attended as a representative of the Company and Clayton Braden was also in attendance . At the meeting Gale reiterated his position that Braden was not entitled to overtime pay, and again asserted that he was not going to send Braden to Kansas City to attend the pumproom operation school. He further asserted that Braden would not be assigned to operate the pumproom . Gale character- ized Braden as a "trouble maker" and stated that Braden was the only employee with whom he had any trouble. He further stated that if Braden desired to adhere strictly to the terms of the collective-bargaining agreement that Braden would not receive anything "outside of what was in the contract." The grievance was resolved adversely to Braden, with the Union joining the Company in rejecting the grievance. 2. The alleged unlawful conduct a. Braden files unfair labor practice charges Clayton Braden testified credibly that he ceased receiving overtime work on July 21, 1969, and did not again receive any overtime until December 4, 1969.2 As a result of the denial of overtime compensation, Braden contacted an attorney and on November 11, 1969, filed charges in Case 19-CA-4567. b. Braden appears as witness A hearing in Case 19-CA-4567 was conducted on February 24. Clayton Braden appeared as a witness called on behalf of the General Counsel and testified in the proceeding. He testified in detail concerning the July 7 request of the Company that he attend the Cummins School ; his interruption of his vacation to attend the school from July 7 through 10; the July 16 conversation with George Gale concerning assumption of duties in the pumproom, and his attendance of a school in Kansas City; the failure of Gale during their July 16 conversation to confirm Braden's entitlement to vacation credit ; the filing of his July 16 grievance ; the subsequent grievance meeting on July 21 with Arthur Rugwell ; his July 21 conversation with George Gale, wherein he was informed he would be denied overtime because he had filed a grievance; the statement of George Gale at the July 27 grievance meeting wherein Gale characterized him as a "trouble maker," and stated his refusal to send Braden to the Kansas City pump school and to assign him to the pumproom ; and the denial of overtime from July 19 to December 4. Present at the hearing on February 24 were George Gale and Arthur Rugwell. 2 Documents in evidence support the testimony of Braden. 3 The foregoing findings with respect to the conversation between Gale and Murr are based on the credited testimony of James Murr. c. The termination of Clayton Braden The following day, February 25, Clayton Braden returned to work, reporting at approximately 8 a.m. Early in the afternoon of February 25, Gale contacted the office of the Union. He spoke with James Murr, business representative of the Union, and arrangements were made for Murr to meet with Gale at approximately 2:10 p.m. In accordance with the arrangements, Murr went to the plant and conversed with Gale in Gale's office. During the conversation Gale stated that Braden had filed grievances with the Union and he had filed "grievances" with the National Labor Relations Board. Gale observed that on the previous day a hearing had been held in the Board proceeding. However, Gale stated that he had evidence revealing that Braden had given approval for an engine to be reassembled when it was not, in fact, at the time ready to be reassembled. Gale informed Murr that he was going to lay Braden off. Murr answered that Gale would have to have a reason for his actions and observed that Braden could file a grievance over the matter. Murr stated, "I suppose you are laying Mr. Braden off for imcompetence." Gale answered, "No, I would call it neglect." Gale quickly added, "In fact, I would call it sabotage." 3 During the course of the afternoon at approximately 2:30 p.m., Clayton Braden was approached in the shop by George Gale who stated to him, "You don't work here anymore, you are fired. You can leave anytime you want." Braden had no opportunity to reply. Gale said nothing further to Braden. But soon after his discharge Braden spoke with James Murr. Murr approached Braden and asked Braden what he was "going to do." Braden responded that he was going to pick up his tools and prepare to leave and that he was then going to call his attorney. Murr assisted Braden in loading his toolbox. Braden then placed his tools in his van which was outside the shop. As Braden was doing so Murr asked, "Do you want to know why you have been fired?" Thereupon, Murr stated that Gale had fired him "because of sabotage and neglect." George Gale testified that he discharged Braden because of his conviction that Braden issued instructions to reassemble an engine when it was not ready to be reassembled and because of Braden's involvement in the mounting of a "fifth wheel" which involved "strictly sabotage because he knew better. d. The alleged faulty work (1) The Ryan Mercantile job A day or two before the February 24 hearing in Case 19-CA-4567, a Mack truck with a six cylinder Cummins diesel engine, belonging to Ryan Mercantile Company, was brought to Respondent's shop for repair. In the presence of Arthur Rugwell and Clayton Braden, it was recounted that the truck had run out of fuel, and that ether had been used as a replacement fuel in the engine. It was further revealed that the engine had been using oil. The consequence of Additionally, George Gale testified that he informed Murr that he felt Braden's clearance for reassembling the engine "was deliberate" and "strictly sabotage" GREAT FALLS WHITE TRUCK CO. 693 using a large volume of ether as fuel is to put excessive pressure on the cylinders and is considered detrimental to the engine. Rugwell instructed Braden to do a "frame overhaul" on the engine and to check the bearings to see if they were sound.4 On February 23, Clayton Braden performed work on the Ryan Mercantile truck. He worked on the truck from 7 a.m. until noon and after lunch he worked for an additional hour, until 2 p.m. Soon after 1 p.m., Braden had reached the point in the repair of the motor wherein he was removing pistons, rods, and liners. At approximately this juncture a representative of Ryan Mercantile, one Pierce, came to the shop and discussed the stages of the repairs with Braden. In the presence of Pierce, Braden removed all of the pistons. He informed Pierce that the number two rod was "rough" and had a slight "build up" on it and that the number two rod inserts had grooves on them. At 2 p.m., Ron Mackenstadt, a mechanic and an employee of Respondent, reported to work. He was directed to assist Braden in working on the Ryan Mercantile truck. Braden instructed Mackenstadt to pull the number two main bearing. Specifically, in Macken- stadt's presence Braden informed Pierce that because the number two rod showed a buildup, and the number two insert had developed grooves, it would be advisable to pull the number two main bearing in order to determine if it was functioning properly.5 At approximately 2 p.m., and coincident to the arrival of Mackenstadt, Braden was assigned to another job Subsequently, after Braden had turned his attention to the other job, Mackenstadt proceeded to pull the number two main bearing. The bearing was found to be in good condition. Mackenstadt continued to work on the Ryan Mercantile truck until 10 p.m. He was engaged until approximately 8 p.m. in cleaning the engine and putting in new pistons and sleeves At approximately 8:30 p.m., Arthur Rugwell called the shop by telephone and instructed the night foreman to have the number four main bearing pulled. Mackenstadt proceeded to pull the number four bearing and it was found that that bearing and four other bearings were scored. The night shift proceeded no further with the repair work, but in the morning it was decided that the engine should be removed and that an attempt to do a frame overhaul should be abandoned. Arthur Rugwell testified that there was "too much time lost" as a consequence of the failure to make an earlier determination of the faulty nature of the main bearings. 4 A frame overhaul is an overhaul accomplished without physically removing the engine from its normal placement in the vehicle 5 Clayton Braden testified credibly that when a rod shows wear it is standard procedure to pull the main bearing with which the rod is associated in order to ascertain whether the main bearing needs further attention 6 I credit the testimony of Arthur Rugwell that on the afternoon of February 23 Braden informed him that number two bearing had been pulled and that it was good However, I find that this information was transmitted to Rugwell by Braden after he had been transferred to another job and not at the time of his transfer Braden testified credibly that at the time he was transferred from the Ryan Mercantile job to another job he informed Mackenstadt to pull the number two bearing. The testimony of Ronald Mackenstadt supports this testimony of Clayton Braden However, I am unable to credit the testimony of Clayton Braden to the effect that he specifically stated to Rugwell that the number four bearing George Gale testified that this failure led to an expenditure of 20 additional hours of time at a "flat rate" of $10 per hour. Rugwell further testified that standard procedure for a mechanic performing the duties to which Braden had been assigned was to first pull and check the number four main bearing. He testified that this was so because it is the number four main bearing which generally shows the most dirt. After 2 p.m., and after he had assumed his duties on the other assignment to which he had been transferred, Braden told Rugwell that he had pulled the number two bearing and that it was good. Braden made no comment to Rugwell concerning the number four bearing.6 (2) The "fifth wheel" assignment On the morning of February 25, Rugwell assigned Braden and a fellow employee to install a fifth wheel on a vehicle belonging to Montana Grain Growers. The fifth wheel is a large plate mounted on the back of the frame of a tractor and its function is to connect the tractor to the trailer so as to permit up and down oscillation of the trailer and to provide for a proper distribution of weight between the two components. The Montana Grain Growers vehicle was a used one and Rugwell instructed Braden to install the fifth wheel on the used vehicle by locating it on the frame in the same manner as the fifth wheel on a new vehicle situated on the Respondent's premises had been located. This required Braden, by measurement, to locate the centers, drill holes, mount plates, and install bolts. Braden commenced performance of this assignment at approxi- mately 9:30 a.m., on February 25. He took the measure- ments from a new truck located on Respondent's premises and, in the course of doing so, recorded those measure- ments on a piece of paper. At the time he ceased work on the fifth wheel assignment he had performed some of the required work, including the drilling and lining up of some of the holes. However, there remained additional dulling to be done and this was performed later in the day by an apprentice. The fifth wheel work was completed by the apprentice and the wheel mounted on the evening of February 25. However, the following morning, February 26, it was found necessary to remount the fifth wheel with a consequent inconvenience to the customers.? CONCLUSIONS The evidence of record establishes rather convincingly that Respondent seized upon a pretext in an effort to justify should be pulled and that he also transmitted this instruction to Mackenstadt Neither Mackenstadt nor Rugwell recalled such instruction emanating from Braden, and, in effect, denied having received such information from him I credit them 7 Respondent also introduced evidence concerning alleged faulty work performed by Braden in February 1970 on a Peterbuilt truck The customer later returned the truck and complained to Gale who reimbursed the customer for a portion of the repair charges However, the customer complaint was not lodged with Gale until February 27, 2 days after Braden's termination Moreover, the customer, Norman Hickok, who testified concerning the incident, was unable to definitely establish that faulty workmanship on Braden's part was the cause of the postrepair trouble he experienced However, Hickok. on February 27, in lodging his complaint to Gale, instructed Gale not to permit Braden to perform any more work on his truck At that point in time, Hickok was not aware that Braden had been terminated 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the termination of Clayton Braden . At the time of his termination Braden had been in Respondent's employ for some 15 years and had a ranking of journeyman mechanic. The day preceding his discharge he had testified at a Board unfair labor practice proceeding, involving certain alleged violations of the Act perpetrated against him by Respon- dent. He had initiated the proceedings by filing charges. His testimony was in support of the charges and complaint and was adverse to the position of the Respondent in that case. Thus, from this evidence alone, viewed the precipitous nature of Braden's termination, a strong inference of improper motive is established. But, separate and apart from this, the record evidence sufficiently establishes an antagonism of prior origin between George Gale, Respondent's principal managing agent, and Clayton Braden. There may have been other foundations for its existence, but the hostility stemmed, in part, as Gale concedes, from the nuisance impact of the several grievances Braden had lodged with the Union over the years. That Braden had, in Gales' mind, a certain tendency to seek the ultimate of all to which he deemed himself entitled under the contract, is suggested by Gale's candid testimony, including that concerning Braden's purported grievance for 1 hour's pay denied him through secretarial oversight. That Gale found Braden's propensity to grieve annoying is established by his characterization of Braden "as the only man in my organization in my 6 years that has ever went [sic] to the union with any grievances." There is convincing evidence that, however long-suffering Respondent had been in countenancing previous griev- ances filed by Braden, the July 16 grievance strained matters to the breaking point. The decision not to send Braden to Kansas City for training and the decision not to carry out the plan to assign him to the pumproom attest to this. In filing his July 16 grievance seeking a declaration of the application of the collective-bargaining agreement to the refusal of Respondent to grant him vacation credit for time spent in attending the Cummins School, Braden was, of course, engaging in protected and concerted activity.8 It was not rendered otherwise merely because it was found without merit by both union and employer members of the grievance committee . That he was engaged in protected concerted activity in filing the unfair labor practice charges in Case 19-CA-4567 cannot be doubted. It is unnecessary, upon this record, to determine whether Respondent would have taken the ultimate step of terminating Braden solely for filing his November 10, 1969, charge in Case 19-CA-4567.9 Rather, it is enough to find that Braden's involvement herein could only heighten the displeasure which Gale openly manifested over Braden's filing of the July 16 grievance, an action which led Gale, discriminatorily, as the Board found, to deny Braden overtime pay and a change in work assignment. 8 The Board so found in affirming the decision of Trial Examiner George H. O'Brien in Case 19-CA-4567 reported at 183 NLRB No. 64. Thus, the Board, like the Trial Examiner, found that Respondent had violated Section 8(axl) and (3) of the Act by discriminating against Braden for asserting a claim under a collective-bargaining agreement between Respondent and Braden's union, and that this discrimination derived from depriving Braden of opportunity to work overtime hours at premium pay, recalling Braden's shop keys, and removing Braden from consideration as designee to work in the pumproom. 9 The actions found violative of the Act by the Board in Case It was in this state of disenchantment with Braden that Gale observed and heard Braden testify adversely to him in Case 19-CA-4567. If Braden's propensity to file grievances could lead Gale to take adverse personnel actions against Braden, as the Board found, it is readily inferrible that Gale would not find termination too stringent a penalty to visit upon Braden for filing unfair labor practice charges and for adverse testimony given at a formal Board proceeding against the Company. In the point of fact, as I view the record, the conclusion is mandatory that Gale terminated Braden because he engaged in the ultimate act of "harassment" by initiating the Board proceeding and appearing at the hearing as a principal witness adverse to Respondent's interest. Not only is the affirmative evidence of unlawful motivation pervading but the evidence of pretext is substantial. Thus, while the faulty diagnostic procedures pursued in connection with the Ryan Mercantile truck repair may have been attributable in part to Braden's unattentiveness and oversight, the evidence is not such as to warrant the conclusion that the error was intentional or wanton. The crucial point in testing the cylinders of the Ryan Mercantile truck was reached after lunch, and as Braden's shift was ending. If his examination of the No. 2 bearing to the exclusion of the No. 4 bearing was not in conformance with preferred practice, it appears not to have been so irregular a procedure as to have invoked questions from either Rugwell or from Mackenstadt. The evidence establishes that Braden informed both Mackenstadt and Rugwell that the No. 2 bearing was satisfactory. He said nothing concerning the No. 4 bearing and he was asked nothing concerning it. Indeed, I am convinced, it was Rugwell's realization that only No. 2 bearing and not the No. 4 bearing had been checked, that caused him to make his evening call to the shop to initiate a further check of the bearings. Doubtless, Rugwell was entitled to rely on Braden's adherence to accepted procedures, but I am not convinced from the record evidence that the technique of checking the No. 4 bearing first, and to the initial exclusion of any other bearing, was followed in such undeviating fashion as to have rendered an inquiry by Rugwell to Braden rhetorical. Respondent is, of course, correct in asserting that involvement in union or concerted activity serves as no shield for a termination effectuated for reasons other than those protected by the Act. Clearly, faulty workmanship, or sabotage, or any good or bad reason is encompassed within the absolute right recognized in employers to terminate employees, so long as protected concerted or union activity is not the motivating cause for the discharge.10 But the evidence of record, in my opinion, falls short of establishing that the Ryan Mercantile repair job involved workmanship so faulty as to warrant precipitous severance of a mechanic 19-CA-4567 may, of course, be considered for the purpose of shedding light on subsequent actions of Respondent and for the purpose of assessing motive, but, perforce, may not alone supply the necessary evidence of discriminatory motivation with respect to the termination here in issue. 10 The Respondent's reliance on the principle enunciated in N.L.R.B. v. Burnup and Sims, Inc., 57 LRRM 2385, is not here applicable for the alleged faulty repair work performed by Braden occurred in the course of his performance of duties and does not constitute misconduct arising from his involvement in protected activity. GREAT FALLS WHITE TRUCK CO. 695 with 15 years' tenure. The evidence is manifestly insuffi- cieni to establishing sabotage. This is so because there is no evidence to reveal that, as Respondent contends, Braden actively misled either Rugwell or Mackenstadt into believing that only a check of the No. 2 bearing remained as a preliminary to reassem- bling the engine. And, of course, it was Mackenstadt who performed the task of checking the No. 2 bearing and found it in satisfactory condition. In my view of the record all that can reasonably be ascribed to Braden was a certain inattentiveness to work details which may well have been attributable to the emotions generated by the events occurring at the February 24 hearing. But the involvement of Braden in the faulty repairs and the quantum of loss in money and in terms of customer dissatisfaction was not so great as to have reasonably, and to have alone, served as the basis for Gale's decision to terminate Braden. Braden had worked too long with a satisfactory work record to permit of such a conclusion. The evidence of intentional mischief available to Gale was, at the time of Braden's discharge, too minimal. Thus, even assuming that Gale believed Braden's poor workmanship to have been responsible for the delays, expense, and customer dissatisfaction occasioned in connection with the Ryan Mercantile job, I am convinced that this consideration was not the sole or even principal motivating cause of Braden's termination. Rather, I find that the Ryan Mercantile incident arose fortuitously for Gale's purposes at a time when Gale's antagonism against Braden was at full vent. Gale invoked the opportunity thus accorded him to terminate Braden, but I find that the termination was occasioned not by Braden's role in the repair work but because of Braden's institution of, and appearance as, a witness at the unfair labor practice hearing in Case 19-CA-4567 on February 24.11 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 of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully terminated the employment of Clayton Braden because of his union and concerted activities, I shall recommend that Respon- dent offer Clayton Braden immediate and full reinstate- ment to his former or substantially equivalent position of employment, without prejudice to his seniority or other 11 The willingness of Respondent to resort to pretext is demonstrated by Gale's delineation of the "fifth wheel" installation as a consideration in the termination of Braden and his sanguine description of Braden's involvement in the repair of the Peterbuilt truck While Braden's asserted rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equivalent to that which he normally would have earned in Respondent's employ absent the discrimination against him. Said sum shall be calculated in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lodge No. 1046, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discharged Clayton Braden because he filed an unfair labor practice charge in Case 19-CA-4567 and appeared as a witness in the hearing conducted in said case and testified adversely to Respondent. As a conse- quence, Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I shall recommend that Respondent Great Falls White Truck Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Lodge No. 1046, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discriminatorily discharging any employee or by discrimi- nating in any like or related manner with respect to hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Clayton Braden immediate and full reinstatement to his former or substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his unlawful discharge, in the manner set forth in the section entitled "The Remedy." (b) 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, as well as all other records poor workmanship in connection with either or both of those repair assignments is conjectural, the evidence leaves no doubt that neither incident came to the attention of Gale until after he had terminated Braden 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (c) Post at its Great Falls, Montana, plant, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms to be provided by the Regional Director for Region 19, after being duly signed by 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, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days of the receipt of this Decision, what steps have been taken to comply herewith.13 12 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 13 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL rehire Clayton Braden to his former or equivalent job and pay him for any loss of wages or income that he suffered with 6 percent interest. WE WILL NOT discharge any employee because he files charges with the National Labor Relations Board or appears as a witness at a hearing conducted by the National Labor Relations Board. WE WILL NOT discharge any employee because he engaged in concerted or union activities. The National Labor Relations Act gives all employ- ees these rights: To organize themselves. To form, join, or help unions. To bargain as a group through representatives they choose. To act together for collective bargaining or other mutual aid or protection. To refuse to do any or all of these things. WE WILL NOT interfere with any of these rights, including their right to join or assist Lodge No. 1046, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of their choice. GREAT FALLS WHITE TRUCK COMPANY (Employer) Dated By (Representative) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-583-4532.