Paso del Norte Oil Co. of Eagle Pass

C. V. URANGA 635 C. V. Uranga d/b/a Paso del Norte Oil Company of Eagle Pass and Jesus V. Garcia. Case 23-CA-2903 November 7, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On May 31, 1968, Trial Examiner Alvin Lieberman issued his Decision in this 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 and the General Counsel filed exceptions and supporting briefs. 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 no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' after subparagraph (b): (c) Discouraging membership in any labor organi- zation by threatening to close its business or by intimating through other words or conduct of similar import that it will discontinue its business upon a union's organization of its employees. 2. Renumber the present paragraphs 1(c) and 1(d) as 1(d) and 1(e), respectively. 3. Insert after the second indented paragraph of the notice attached to the Trial Examiner's Decision the following: WE WILL NOT do anything to make you think that we will close our business if you should decide to organize, form, join, or assist any union for the - purpose of bargaining collectively through any union or representative of your choice as to wages, hours of work, and any other terms or conditions of employment. "would close his business " if the employees "were not satisfied [and] happy." This utterance coupled with the Respondent 's further assertion that "he had enough money to sustain himself, and that we [the employees ] would be out of work" warrants a finding of violation of Section 8(a)(1) because the tendency of such statements may reasonably be expected to have interfered with the free exercise of employee rights under the Act whether or not the employees actually felt intimidated by such remarks. Joy Silk Mills v. N.L.R.B., 185 F.2d 732 (C.A. D.C.), cert. denied 341 U.S. 914. 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 Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, C. V. Uranga d/b/a Paso Del Norte Oil Company of Eagle Pass, Eagle Pass, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Amend paragraph 1 by inserting the following Or. Respondent 's Motion to Dismiss the Trial Examiner ruled that if it were established that witnesses called by the General Counsel were coerced by appealing to their sympathy for Garcia and Garza, the credibility and weight ascribed to such witnesses and their testimony, respectively , would be affected accordingly. In this regard the Trial Examiner determined that no finding based on the testimony of Uvaldo Chacon should be made. We agree with the Trial Examiner that the unfair labor practices found herein are established without considering the testimony of Chacon. However, after a careful review of the entire record of this case , we do not believe it has been established or that it could be inferred that Chacon or any other witness was "coerced" by the General Counsel 's representative during the pretrial investigation. 2We find merit in the General Counsel's exceptions to the Trial Examiner's failure to find an independent violation of Section 8(a)(1) with regard to the Respondent's remarks delivered to a majority of the employees in December 1967, in which the Respondent stated that he Statement of the Case ALVIN LIEBERMAN, Trial Examiner: The trial in this proceeding, with all parties except the Charging Party represented, was held before me in Eagle Pass, Texas, on February 27, 28, 29, and March 1, 1968, upon a complaint of the General Counsel' and respondent's answer.2 In general, the issues litigated were whether, as the complaint alleges,3 respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). Particularly, the questions for decision are as follows: 1. Did respondent engage in independent violations of Section 8(a)(1) of the Act by coercively interrogating and 'The complaint was issued on a charge filed on December 6, 1967, by Jesus V. Garcia. 2During the trial the complaint was amended to set forth respondent's name as it appears in the caption . The complaint was further amended by substituting the date "October 2, 1967" for the date "October 6, 1967" in paragraph 7(k). Upon the amendment of the complaint paragraphs 2, 3, 4, 5, 6, and 8 of the answer were amended to admit the correspondingly numbered paragraphs of the amended com3plaint. Inasmuch as a careful examination of the record reveals that no evidence was introduced by the General Counsel to support the allegations of paragraphs 7(a), (b), (c), (h), (I), (m), and (n) of the complaint, those paragraphs as well as the related portion of paragraph 10 of the complaint are now dismissed . Accordingly, subsequent references to the complaint appearing in this Decision will be without regard to these allegations. 173 NLRB No. 99 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening employees; by creating the impression that their efforts to obtain representation by a labor organization were under surveillance; by seeking information from employees concerning their having spoken to agents of the National Labor Relations Board (herein called the Board); and by encouraging employees not to cooperate with agents of the Board9 2. Did respondent violate Section 8(a)(3) and (1) of the Act by discharging two employees, Jesus V. Garcia and Ricardo Garza? Upon the entire record,' upon my observation of the witnesses and their demeanor while testifying,5 and upon careful consideration of the arguments made and the brief submitted by the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation whose principal office and place of business is located at Eagle Pass, Texas, is engaged in wholesale distribution of petroleum and related products, including butane. During 1967,6 a representative period, respondent sold products valued at more than $50,000 to customers located outside the State of Texas. Accordingly, I find that respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the Board is warranted. Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO (herein called the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with events which occurred while employees of respondent were looking for a labor organization to represent them in their dealings with respon- dent. Among these, the complaint alleges, was respondent's interrogation of, and threats to, employees, its solicitation of employees to refram from speaking to agents of the Board; its creation of the impression among employees that their organizational efforts were being monitored; and its discharge of two employees, Jesus V. Garcia and Ricardo Garza. The General Counsel contends that the discharges contra- vened Section 8(a)(3) of the Act and that respondent's other conduct was independently violative of Section 8(a)(1).7 For its part, respondent denies that it engaged in the independent violations of Section 8(a)(1) set forth in the complaint. Concerning its alleged infringement of Section 8(a)(3), respondent's position is that Garcia and Garza were dismissed for cause.8 B. Preliminary Facts 1. The investigation At the outset of the trial respondent moved to dismiss the complaint9 on the ground, among others, that Frank Herrera, Jr., one of the lawyers representing the Government'in this proceeding, "engaged in improper activities during the course of the investigation, prior to the issuance of the complaint in this matter." Supporting this branch of its motion respondent alleged that Herrera "attempted to persuade prospective prosecuting witnesses to testify against the Respondent by suggesting to them that by so doing, they would enable or help [Garcia and Garza] the two (2) complaining witnesses to get their jobs back." Respondent's motion to dismiss the complaint was denied. In ruling on the motion, however, I stated that if it were established that "witnesses called by the General Counsel were coerced . by appealing to their sympathy for Garcia and Garza ... that fact will certainly affect the weight of their testimony and even their credibility." See, in this connection, N.L.R.B. v. Capitol Fish Company, 294 F.2d 868, 871 (C.A. 5). Three witnesses who appeared in-this matter testified that when they were interviewed by Herrera while the charge in this case was under investigation he did, in fact, appeal to their sympathy for Garcia and Garza. Of these, only one, Uvaldo Chacon, gave evidence concerning the events with which this case is concerned. In accordance with the statement made in connection with my ruling on respondent's motion to dismiss the complaint concerning the credibility of, and the weight to be ascribed to testimony given by, a witness to whom sympathetic appeals were made I will base no finding on Chacon's evidence. 2. Respondent's business Respondent buys and sells petroleum and butane in bulk. Respondent does business on the basis of contracts with 4Issued simultaneously is a separate order correcting the steno- grapshic transcript of this proceeding in several respects. Many of the witnesses who appeared in this proceeding were fluent in Spanish , but not in English . Accordingly, the questions put to them were translated from English into Spanish and their answers given in Spanish were translated into English by A. Rene Barientos, District Clerk of Maverick County, Texas, who was duly sworn to serve as interpreter at the trial. The demeanor of the witnesses who testified in this manner has not been taken into account in determining their credibility. 6Unless otherwise noted all dates subsequently referred to in this Decision fall within 1967. 7In pertinent part these sections provide: Sec. 3. (a) It shall be an unfair labor practice for an employer- (1) to interfere with , restrain , or coerce employees in the exercise of the rights guaranteed in section 7; (3) by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organiza- tion.... Section 7, insofar as relevant, provides as follows: Sec. 7. Employees shall have the right to self-organization, to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or gther mutual aid or protection .... Respondent having waived oral argument at the conclusion of the trial and not having submitted a brief, its stand on the issues in this case is gleaned from its opening statement ; the various grounds on which it based its motions to dismiss the complaint , which were denied, its answer ; and the evidence which it adduced. 9This motion has been incorporated into the record of this case. C V. URANGA customers providing for the delivery of specified quantities of the product concerned each month. These agreements, apparently, have no fixed term, are frequently canceled by the customer, and, with equal frequency, are replaced by new contracts. Respondent makes deliveries to its customers by railroad, the products being transported in tank cars. Respondent sends its own trucks to refineries to collect the petroleum it sells. These trucks normally arrive at respondent's plant in the early afternoon. The petroleum which they bring from the refineries is then transferred to the tank cars which are picked up between 7:30 and 8 p.m. Notwithstanding the necessity for the trucks to return to respondent's plant early enough to permit the railroad cars to be loaded before their scheduled pickup time, for a period of several weeks, including almost the entire month of Septem- ber, the trucks arrived 2 to 3 hours beyond their normal time. This was the cause of concern to Charles V. Uranga, respondent's president, not only because it delayed the loading of the tank cars, but also because the employees who loaded the cars were complaining about working late to complete the transfer of petroleum from the trucks to the cars. Respondent's drivers are authorized, while on their routes, to purchase fuel for their trucks and to have tires repaired as the necessity arises. They are required, however, to obtain bills from the suppliers of these goods and services, which, in normal course, are deposited in respondent's office. 3. Respondent's hiring of Guerrero and Guajardo As will be more fully set forth below, Jesus V. Garcia and Ricardo Garza, who were employed by respondent as drivers, were discharged on September 25 and 26, respectively.) o About a week before these discharges respondent hired Mike Guerrero to work as a driver. Some 3 weeks after the termination of the employment of Garcia and Garza another driver, Hector Guajardo, was hired.' i 4. The efforts of respondent's employees to obtain representation Starting in August and continuing until about the end of September respondent's drivers discussed, among themselves, the advisability of being represented by a labor organization and some agreed that such a course would be desirable. Most of the talking, in this regard, was done by Ricardo Garza and Jesus V. Garcia. To implement the efforts of the drivers to obtain representation Garcia, in mid-August, conferred with Henry de la Garza, a representative of the Union. At this meeting, as Garcia testified, he was informed that the Union could not represent the drivers, "but that [de la Garza] would get another union to which [the drivers] could belong, and [de la Garza] would try to get somebody that would help [the 10The discharge of these employees is alleged in the complaint as haviliiA been violative of Section 8(a)(3) of the Act. My findings as to the hiring of Guerrero and Guajardo are based on the testimony of Jose Yerba, one of respondent 's drivers, and Uranga, respectively. Uranga's testimony concerning the time Guerrero began to work for respondent cannot serve as the basis for a finding 637 dnversl ." In addition to this advice de la Garza gave Garcia two copies of a pamphlet issued by the Union purporting to set forth rights of employees protected by the Act.12 One of these Garcia kept. The other he gave to Garza, his fellow driver. At another conference with de la Garza, the Union's representative, about a week before Garcia's discharge, Garcia received about 12 more copies of this pamphlet. These he distributed among respondent's drivers. However, this was not done in the usual manner; i.e., Garcia did not station himself in a conspicuous place and openly pass out the pamphlets. On the contrary, they were dispensed rather covertly. As Garcia put it "one of them [he] gave [to an employee] right to his house .... and dthers in the car, and another one [he] gave to a boy that was ... making repairs [to an automobile] .... and the others [he distributed] when we came from the trip ... outside of the plant." C. Facts Concerning Respondent's Alleged Independent Violations of Section 8(a)(1) of the Act The complaint alleges, and the answer denies, that respondent independently violated Section 8(a)(1) of the Act by interrogating employees concerning their efforts to obtain representation, by telling an employee that it was aware of the identity of the persons who were distributing pamphlets issued by the Union, by threatening employees, by seeking informa- tion from employees concerning their having spoken to agents of the Board, and by encouraging employees not to cooperate with such agents. Inasmuch as the evidence establishes a relationship between a meeting held on December 17, which at the request of respondent was attended by employees, and the last three items set forth above they will be considered together. The other two items will be taken up individually. 1. The alleged interrogation Notwithstanding its denials, I find that respondent interro- gated employees in the manner set forth in the complaint. I further find that the employees questioned were not informed that their answers would not subject them to reprisals and were not told that they could, with impunity, refrain from answering. The first instance of employee interrogation disclosed by the record occurred on September 25. On that day, during a conversation between Uranga, respondent's president, and Francisco Chavez, one of its drivers, concerning the late arrival of respondent's trucks,) 3 Uranga asked Chavez to identify the employees "making the strike," whether he "was in the strike," and to name the person who was distributing the phamphlets14 issued by the Union. Chavez replied that he, himself, was not involved in what Uranga termed the "strike"; that he did not know who was; and that he did not know who because of its vacillating and contradictory nature. 12A copy of this pamphlet is in evidence as G.C. Exh 2. 13A discussion of this situation appears earlier in this Decision. i4As already found, the pamphlets in question were received from the Union's representative about a week earlier and had been distributed by Jesus V. Garcia. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was distributing the pamphlets.' 5 On the following day, September 26, respondent discharged Ricardo Garza.' 6 While receiving his final check from Gonzales, respondent's dispatcher,' Garza asked Gonzales whether there was a connection between his dismissal and "the rumors of a union." Gonzales did not answer. Instead, he asked Garza "who is the promoter of the union?" In reply Garza named Garcia. A week later Gonzales interrogated another driver, Amado Ferez. On October 2, while Ferez was in Gonzales office on routine business, Gonzales asked him whether he "was involved in the union " 2. The alleged impression of surveillance Not only did Gonzales, respondent's dispatcher, ask Ferez about his relationship to the Union, as found above, but also about the identity of the persons distributing the union pamphlets With respect to the latter, after Ferez denied knowing who the distributors were, Gonzales told Ferez notwithstanding the covert manner in which the pamphlets had been passed out, that "he [Gonzales] knew more or less who was handing out the papers for the union ... that ... Garcia and Garza were the ones that were handing out the papers."' 8 3. The December 17 meeting On December 16, Uranga learned that an agent of the Board was interviewing some of respondent's employees. Apparently surmising that these interviews had a relationship to the charge in the instant case and after discussing the matter with respondent's lawyer, Uranga decided to have a meeting with respondent's drivers the next day, December 17. The meeting was attended by a substantial number of drivers, some of whom were directed to be present by Uranga and some by Gonzales. Ferez was among those who were notified of the meeting by Gonzales, respondent's dispatcher. While doing this Gonzales asked Ferez whether he had already talked to the Board agent. Ferez told Gonzales that he had not done so. At the meeting several matters were discussed. Among them was the subject of the drivers being interviewed by the Board agent. In this connection Uranga, respondent's president, first inquired of the employees present as to their having "spoken to this man." Uranga then went on to say that although they could refuse to do so, under the law "they were free to go to talk to this man"; that "he would not be opposed if [they] would give frank testimony", and that he was not asking them not to do so, nor was he establishing any prohibition respecting either their speaking with, or giving a signed statement to, the Board agent. In short, as one driver who attended the meeting testified, Uranga told the employees that the matter was their "thing, that it was up to [them and their] judgment."' 9 Another matter mentioned by Uranga at the December 17 meeting was the possible discontinuance of respondent's business. In this regard, as Morales testified, Uranga referred to respondent's growth and the improvement of its equipment. He then veered to the wages earned by the drivers, stating, in this connection, that if they "were not satisfied, that if [they] were not happy, he would close his business and [the employees] would be out of work." While testifying on this point Morales several times said that he did not know why Uranga made this statement; that he did not understand it; and that he did "not know what sense [Uranga] was trying to make with that." D. Contentions and Concluding Findings Concerning Respondent's Alleged Independent Violations of Section 8(a)(1) of the Act The complaint alleges, and the General Counsel contends, that by interrogating employees concerning the Union and by telling one of them that respondent knew who was responsible for the distribution of the union pamphlets respondent violated Section 8(a)(1) of the Act. Respondent has denied these allegations. Respondent's denials, however, have been 1sMy findings as to this conversation are based on testimony given by Chavez, who testified through the interpreter. Uranga admitted that he spoke to Chavez about the late arrival of the trucks and that he asked Chavez, in this regard, the Spanish equivalent of "Are you united as a group to purposely come in late?" Uranga further testified that in putting this question to Chavez he used the Spanish word "huelga." Explaining his use of this word Uranga stated that " `United' in Spanish has a word of 'union' [ and that) `union ' to [respondent 's employees] would be 'huelga ' or along the same lines." For several reasons I cannot _ accept the gloss put upon the conversation by Uranga . First, he, himself, stated that "huelga" means "strike." Second, in no Spanish-English dictionary which I have consulted is the word "huelga" translated as "united." On the other hand , all of them, as did Uranga , translate it as "strike." See "Valezquez Spanish Dictionary "; "Mr. Kay's Modern Spanish-English Dictionary ", Williams, "Spanish and American Dictionary." Finally, had the trucks ' delay been Uranga 's only concern it is improbable that in a conversation on that subject he would have asked Chavez for the identity of the pamphlets ' distributor. Although Uranga denied asking Chavez this question his denial was general and couched in the language of the complaint . As will appear, Jesus Gonzales, respondent 's office manager and dispatcher , also used this form in denying the conduct attributed to him by witnesses for the General Counsel in testimony which , like Chavez ', was specific and detailed. I do not find general denials such as these convincing in the face of contrary specific and detailed testimony . Accordingly, I shall give them no weight. i6As already noted, this discharge and Garcia 's on the previous day are alleged in the complaint as having been violative of Section 8(a)(3) of the Act. 17 Respondent does not contest Gonzales ' supervisory status or its responsibility for his conduct. 18 My findings as to Gonzales ' interrogation of Garza and Ferez and his statements concerning the names of the pamphlet distributors are based upon, and the quotations are taken from, testimony given by Garza and Ferez. Gonzales' denials, in this regard , are given no weight for the reasons set forth in footnote 15. Respecting denials, a matter concerning Ferez must be noted. In a pretrial conference with respondent 's lawyer, which was attended by Uranga, respondent's president , Ferez denied that Gonzales had spoken to him about the Union. At the trial Ferez explained that he was afraid that he would have lost his job if he told respondent 's lawyer that Gonzales had, in fact, interrogated him regarding the Union and had discussed with him the distribution of the union pamphelts . Even though there may have been no basis for the fear which Ferez felt, his explanation has the ring of truth. Accordingly, I accept it and draw no adverse inference concerning his credibility by reason of what transpired at the conference in question. 19The quotations in the text are taken from, and my findings with respect to this phase of the December 17 meeting are based upon a synthesis of, the testimony given by Uranga and two drivers, Gustavo C. Morales and Ferez. C. V URANGA overcome by the proof. Concerning the interrogation allegations of the complaint, the evidence shows that Uranga and Gonzales, respectively respondent's president and dispatcher, made inquiries of employees respecting their involvement and that of others in the drivers' movement to obtain union representation, the identity of the leader of the movement, and the identity of the employees who had distributed union pamphlets. Inasmuch as the employees questioned were not assured that they would not suffer reprisal by answering and were not informed that they could, with impunity, remain silent, I find that their interrogation was coercive and, therefore, violative of Section 8(a)(1) of the Act. Cohen Bros. Fruit Company, 166 NLRB No. 2. I also find that respondent violated Section 8(a)(1) of the Act by Gonzales' statement to Ferez, one of respondent's drivers, that he knew that the union pamphlets had been distributed by Garcia and Garza. In view of the covert manner in which the pamphlets were passed out to employees, Gonzales' remark concerning the identity of the distributors, who were engaged in an activity protected by the Act,20 smacked of surveillance. That the evidence does not show that respondent actually spied upon the employees who handed out the pamphlets is not important. What is significant is that Gonzales' comment "plainly created an impression of sur- veillance [which] tended to restrain and interfere with employees in the exercise of their rights guaranteed under the Act." Mitchell Plastics, Incorporated, 159 NLRB 1574, 1576. See also Edinburg Manufacturing Company, 164 NLRB No. 18, enfd. 394 F.2d 1 (C.A. 4, 1968). The General Counsel contends that respondent engaged in additional violations of Section 8(a)(1) of the Act by its conduct at, and immediately preceding, the December 17 meeting. The specific acts complained of are interrogation of employees by Uranga and Gonzales, respectively respondent's president and dispatcher, as to their having spoken to an agent of the Board; a threat by Uranga to discontinue respondent's business should the Union be successful in organizing its employees; and Uranga's solicitation of employees to refrain from speaking to, or signing statements for, the Board's representative. Insofar as the last two allegations are concerned, they do not appear to have been established by a preponderance of the evidence, and I so find. Respecting the claimed threat, although Uranga did say, as Morales, a driver employed by respondent, testified, that he "would close his business" if the employees "were not satisfied [and] happy" with their wages, this statement, it seems to me, is too ambiguous to constitute a threat that respondent would discontinue its business upon the Union's organization of respondent's employees. The ambiguity of Uranga's utterance, in this regard, is heightened, I find, by the fact that neither the Union, nor the efforts of respondent's employees to obtain representation was men- tioned at the meeting. Cf. Hilton Hotels Corporation, 138 NLRB 135, 136, 140 (Tucker-Miller incidents). Finally, I note that in the course of his testimony concerning Uranga's statement here under discussion Morales remarked that he did not understand it and that, in essence, it made no sense. The General Counsel's contention that at the December 17 meeting Uranga urged employees not to speak with, or give 639 statements to, the Board's agent, likewise, lacks evidentiary support. The proof not only does not establish this allegation, but seems, instead, to establish the contrary. Thus, as I have found, Uranga, in essence, told the employees who attended the meeting that they were free to talk to the Board's representative, that they were not being asked not to do so, nor were they being prohibited from speaking with, or signing statements for, the Board's agent; and that although they had the right to refuse to do either this was a matter they had to decide for themselves. This is a far cry from the complaint's allegation that at the meeting Uranga "solicited the employees to refrain from speaking to, or signing statements for, an agent of the Board." The remaining conduct complained of, insofar as this phase of the case is concerned, relates to the interrogation of employees by Uranga and Gonzales, respectively respondent's president and dispatcher, concerning their having spoken to the agent of the Board. I have found that such inquiries were made by Uranga and Gonzales. However, the inherent coerciveness of such inquiries was effectively neutralized and dissipated by Uranga's subsequent unequivocal statements to the employees regarding their freedom to speak to the Board's representative without fear of reprisal. Cf. Livingston Shirt Corporation, 107 NLRB 400, 402-403, and Marr Knitting, Inc., 90 NLRB 479, 480. In sum, I conclude that respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act by coercively interrogating employees concerning their efforts at obtaining representation by a labor organization, the extent of their involvement in this movement, and their activities, and those of other employees, in its support; and by creating an impression that the activities of employees in furtherance of this movement were under surveillance. I further conclude, considering the record as a whole, that the General Counsel has not sustained his burden of proving by a preponderance of the evidence that respondent threatened to discontinue its business should the Union be successful in organizing its employees or that respondent solicited em- ployees to refrain from speaking to, or signing statements for, an agent of the Board. I conclude finally, respecting this branch of the case, that respondent's interrogation of employees concerning their having spoken with a Board agent was, in the circumstances, not coercive. In view of the conclusions set forth in this paragraph, I will recommend that paragraphs 7(o), (p), (q), (r), and the relating portion of paragraph 10 of the complaint be dismissed. E. Facts Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act Jesus V. Garcia and Ricardo Garza were discharged by respondent on September 25 and 26, respectively. The complaint alleges that these discharges were violative of Section 8(a)(3) of the Act. Garcia and Garza had been employed by respondent as drivers for substantial periods of time. Their activities in support of the movement among respondent's drivers to obtain representation by a labor organization have already been discussed. Briefly summarizing my findings in this regard, Garcia and Garza did most of the talking in favor of such a 20Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 620. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD move. In addition, Garcia discussed this matter with Henry de la Garza, an agent of the Union, on two occasions, the first in mid-August and the second about a week before his discharge. During their second meeting de la Garza gave Garcia pamphlets published by the Union which Garcia promptly distributed among respondent's drivers. It thus appears that Garcia and Garza were the principal advocates of the representation movement among respondent's employees and respondent does not deny that it had knowledge of this. On September 25, upon returning from a trip, Garcia was informed that Uranga, respondent's president, wanted to talk to him. Accordingly, Garcia went into Uranga's office. After a discussion relating to the condition of Garcia's truck and Garcia's satisfaction with his wages, Uranga told Garcia, as Garcia testified, that "I [Uranga] have no use for you."21 At the conclusion of their conversation Uranga gave Garcia two checks, one representing his current earnings and the other covering his accrued vacation pay. On the day on which Garcia was discharged a notice was posted on respondent's bulletin board directing Garza not to "go out on a trip" the next day, September 26, but to "come to the office." Upon doing so Garza was informed of his discharge by Gonzales, respondent's dispatcher. Garza asked Gonzales the reason for his dismissal. Not receiving an answer, Garza asked Gonzales whether he was being discharged "on account of the rumors of a Union." Instead of replying Gonzales asked Garza "who is the promoter of the union.." Naming Garcia, whose employment had been terminated on the previous day,22 and still not receiving an answer from Gonzales as to the reason for his discharge, Garza requested permission to speak to Uranga, respondent's president. Gonzales thought well of this proposal and told Garza to "tell [Uranga] that [he is] not mixed up in this and [Uranga] will probably give [him] a break .,121 Although Garza conferred with Uranga later that day concerning the cause of his discharge, Garza did not have an opportunity, because of Uranga's occupation with other matters, to avail himself of the advice given him by Gonzales, respondent's dispatcher. Concerning the discharge, however, Uranga told Garza, as he had informed Garcia a day earlier, that he did not "have any use for [him]." During the same conversation24 Uranga also stated that he "thought that one of [respondent's] contracts ... was going to expire 25 and that he was going to have to ... lay off three drivers. ,26 Uranga, respondent's president, testified that Garcia and Garza were not "fired ... because [he] found out that they were behind [the] union movement," but mainly because of their "tire padding on the road"27 and respondent's "loss of business." Concerning the former, Uranga stated that "for this four-month period there'28 the ... repair tickets [of Garza and Garcia] on the tires were running between forty-eight and 21 This, apparently, is a literal translation by the interpreter of Garcia's testimony , which was given in Spanish . Perhaps, more idiomatically, it might have been translated as "I have no use for your service." 22 1 have already found that Gonzales' interrogation of Garza concerning "the promoter of the union" was violative of Section 8(a)(1) of the Act. 23 Gonzales did not deny making this statement. 24My findings as to Garza 's discharge and the surrounding circumstances, including his conversation with Gonzales and Uranga are based upon, and the quotations are taken from, Garza's testimony. 25As found earlier respondent and its customers entered into fifty percent of the rest of them"; that he "just kept watching this"; and that "from these tire bills, [he] came to one conclusion, what they were doing is padding the bills." Respecting respondent's "loss of business," Uranga testified that sometime before September 25 respondent was informed that one of its contracts "was not to be renewed." Uranga further testified that about the same time respondent "lost another big account" and he "didn't know what state [his] business was in." Before leaving Uranga's testimony, two things are noted. Respondent did not offer any documentary evidence in connection with the reasons given by him for the discharge of Garcia and Garza, nor was any explanation offered to account for respondent's not having done so. F. Contentions and Concluding Findings Concerning Respondent 's Alleged Violations of Section 8(a)(3) of the Act The General Counsel contends that Garcia and Garza were discharged because they were the chief promoters of the movement to obtain labor organization representation for respondent's drivers and that, therefore, respondent violated Section 8(a)(3) of the Act. Respondent disputes this and maintains that Garcia and Garza were dismissed for cause; namely, their "padding" of tire repair bills and respondent's "loss of business." The touchstone for decision respecting the actual reason for the discharges is, it seems to me, the advice given to Garza by Gonzales, respondent's dispatcher, when Garza proposed discussing his discharge with Uranga, respondent's president. At that time, it will be remembered, Gonzales told Garza to tell Uranga that he "was not mixed up" in what was loosely termed the union "and [Uranga] will probably give [him] a break." The only reading which can be placed on this statement is that Garza, and Garcia as well, had been discharged because they were "mixed up" in the union. The termination of the employment of Garcia and Garza for this reason constituted an effective method of discouraging them and other employees from supporting the movement to obtain representation for respondent's drivers, which had been sparked by Garcia and Garza. Their discharge also had the effect of discouraging respondent's employees from becoming members of a labor organization which, clearly, would have been the ultimate result of the success of the representation movement. I find, therefore, in agreement with the General Counsel, that the dismissal of Garcia and Garza was violative of Section 8(a)(3) of the Act. Respondent's contentions as to the reasons for the discharge of Garcia and Garza are unconvincing. I cannot ascribe credence to the testimony of Uranga, respondent's president, concerning tire repair bill "padding" by Garcia and contracts which provided for the monthly sale and delivery by respondent to the customers of specified quantities of the product sold. As also found, these contracts have no set term , are often canceled by the customers , and with similar frequency replaced by new agreements. 26 No evidence was introduced concerning the layoff or discharge of any drivers during this period other than Garcia and Garza. On the contrary , as I have already found , one driver was hired about a week before, and another about three weeks after the discharges here under consideration. 27It will be remembered that I have already found that respondent's drivers are authorized, while on their routes, to have flat tires repaired. 28 The period referred to by Urgana was not otherwise fixed. C. V. URANGA Garza in face of respondent's unexplained failure, notwith- standing Uranga's statement that he kept track of these bills for 4 months, to offer in evidence those bills as well as bills submitted by other employees to show the comparison claimed. The conclusion is inescapable that had this evidence been adduced it would have given the he to Uranga's testimony. Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226; Bechtel Corporation, 141 NLRB 844, 845, 852. I am likewise unimpressed by the second explanation submitted by respondent to justify the discharges; i.e., the "loss of business" it claims to have experienced. If anything, this contention, as will be shown, lends support to my conclusion that by discharging Garcia and Garza respondent violated Section 8(a)(3) of the Act. In the first place, respondent's failure to offer in evidence its records to substantiate its "loss of business" argument causes it to suffer from the same infirmities as respondent's tire repair bill "padding" claim. Additionally, it "fails to stand under scrutiny"2 9 for another reason. Notwithstanding respondent's assertion that it suffered a business loss at about the time it discharged Garcia and Garza, respondent in the same general period hired two other drivers. As I have found, in this connection, one was engaged about a week before the discharges and the other about 3 weeks after that event. Had respondent, in fact, been required by business reverses to discharge two drivers it would not, in the normal course, have hired two replacements. Respondent having hired substitutes for Garcia and Garza, I find that the "loss of business" reason given by respondent for their discharge is false. In view of this, I draw an inference, permissible in the circumstances, which is unfavorable to respondent. N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9). The extent of the unfavorable inference which is given rise by the situation presented here was spelled out in a more recent case by the court which decided Dant. In Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470, that court stated with sharp explicitness: If [the trial examiner] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive- at least where, as in this case, the surrounding facts tend to reinforce that inference.30 In Atlantic Metal Products, Inc., 161 NLRB 919, this principle was specifically adopted by the Board. Accordingly, I conclude that by discharging Garcia and Garza respondent committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities to the extent found violative of the Act in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among 29N.L.R.B. v. Dant, et al., 207 F.2d 165, 167 (C.A. 9). 30The reinforcing "surrounding facts" in this case are, as I have found, respondent 's unlawful interrogation of employees , its creation of the impression that their activities in support of the movement to obtain representation were under surveillance , and the advice given to 641 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 unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, my Recommended Order will direct respondent to cease and desist therefrom and to take the affirmative action normally required in such cases to effectuate the policies of the Act. Any backpay found to be due to Garcia and Garza shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the nature and flagrancy of the unfair labor practices engaged in by respondent3 1 broad cease-and-desist provisions will be included in my Recommended Order. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their efforts at obtaining representation by a labor organization, the extent of their involvement in this movement, and their activities, and those of other employees, in its support respondent has engaged, and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By creating an impression that the activities of em- ployees in furtherance of the movement set forth in Conclusions of Law 3, above, were under surveillance, respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(1) of the Act in the manner set forth in paragraphs 7(o), (p), (q), and (r) of the complaint. 6. By discharging Jesus V. Garcia and Ricardo Garza because of their adherence to, and activities in support of, the movement to obtain the representation of respondent's employees by a labor organization, thereby discouraging membership in a labor organization, respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The unfair labor practices engaged in by respondent, as set forth in Conclusions of Law 3, 4, and 6, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and Garza at the time of his discharge by Gonzales, respondent's dispatcher. I also place in this category respondent 's hiring of replacements for Garcia and Garza. 31 See, in this connection, N.L.R.B. v. United Mineral & Chemical Corporation, 391 F.2d 829 (C.A. 2, 1968). 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the entire record in this case, I hereby issue the following: IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. RECOMMENDED ORDER C. V. Uranga, d/b/a Paso Del Norte Oil Company of Eagle Pass, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their efforts at obtaining representation by a labor organization, the extent of their involvement in this movement, or their activities, and those of other employees, in its support. (b) Engaging, attempting to engage, or giving the impres- sion that it is engaging, in surveillance of its employees' efforts at obtaining representation by a labor organization. (c) Discouraging membership in any labor organization by discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coeicing employees in the exercise of their right to self- organization, to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Offer to Jesus V. Garcia and Ricardo Garza immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and made them whole, in the manner set forth in the section of this Decision entitled "The Remedy" for any loss of earnings they may have suffered by reason of the discrimination practiced against them. (b) Notify Jesus V. Garcia and Ricardo Garza if serving in the Armed Forces of the United States of their or his, as the case may be, 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) Preserve and, upon request, make available to the National Labor Relations 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. (d) Post at its premises copies of the attached notice marked "Appendix. ,32 Copies of said notice, and copies of Spanish translations thereof, on forms provided by the Regional Director for Region 23, shall be posted by respondent after being duly signed by its representative, 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 and their Spanish translations are not altered, defaced, or covered by any other material. 32In 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 wordss "a Decision and Order." 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 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial in which both sides had an opportunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we will keep the promises that we make in this notice. WE WILL NOT question you in any way about any union or about what you are doing to bring in a union to represent you. WE WILL NOT watch or spy on what you are doing about any union or on what you are doing to bring in a union to represent you. Also, WE WILL NOT do or say anything to make you think that we are watching you or spying on you as you do any of these things. WE WILL NOT fire you, lay you off, fail or refuse to give you back your job, or take any action against you because you do anything for any union, or because you do anything to bring in a union to represent you, or because you have already done any of these things. As it has been decided that we fired Jesus V. Garcia and Ricardo Garza for doing these things WE WILL offer to put them back to work at their old jobs or to jobs just like their old jobs and WE WILL pay Jesus V. Garcia and Ricardo Garza for any wages they lost because we fired them. WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of any rights guaranteed to you by the National Labor Relations Act. In this connection, WE WILL respect your rights to self- organization, to form, join, or assist any union, to bargain collectively through any union or representative of your choice as to wages, hours of work, and any other term or condition of employment. You also have the right, which WE WILL also respect, to refrain from doing so. All our employees are free to become or remain, or not to become or remain, members of any union. (e) Notify the Regional Director for Region 23, in writing, PASO DEL NORTE OIL within 20 days from the receipt of this Decision , what steps COMPANY OF EAGLE PASS have been taken to comply herewith .33 (Employer) C. V. URANGA 643 Dated By This notice must remain posted for 60 consecutive days (Representative) (Title) from the date of posting, and must not be altered, defaced, or Note. We will notify Jesus V. Garcia and Ricardo Garza if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4269.