Simas Bros.

SIMAS BROS. 441 Simas Bros. and Ross M. Willis. Case 20-CA-5937 February 8, 1971 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY ing the unfair labor practices . Pursuant to notice , a hearing was conducted in San Francisco , California, between April 13 and April 17, 1970. From my observation of the witnesses , which, in this case, was a material factor in resolving credibility differences, and upon the testimony of the witnesses , the exhibits, and upon the entire record in the case , I make the following: FINDINGS OF FACT On August 21, 1970, Trial Examiner James R. Hemingway 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 filed exceptions to the Trial Examiner's Decision with a supporting brief and an answering brief to the General Counsel's cross-ex- ceptions. The General Counsel filed cross-excep- tions with a brief in support and an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Simas Bros., Oakland, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed by Ross M. Willis, an individual, on February 6, 19T0, a complaint issued on March 2, 1970, alleging a violation by Respondent of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151, et seq., herein called the Act, by the discharge of its employee Ross M. Willis because of his activities on behalf ofthe Union. On March 12 , 1970, the Respondent filed an answer deny- I THE FACTS OF COMMERCE The complaint alleges and the answer admits that Re- s ondent, a California corporation with its principal place of business in Oakland, California, has at allptimes material to the issues herein, been engaged in the retail sale of petro- leum products. During the past year, Respondent, in the course and conduct of its business operations, had total sales in excess of $500,000. During the past year, Respon- dent, in the course and conduct of its business operations, purchased and received goods valued in excess of $5,000 directly from suppliers located outside the State of Califor- nia. Upon these facts, I find that the Board's jurisdictional standards with respect to retail operations as well as the legal jurisdictional requirements of the Act under Section 2(6) and (7) have been met, that the Board has jurisdiction, and that it will effectuate the purposes of the Act to assert jurisdiction. II THE LABOR ORGANIZATION INVOLVED Teamsters Automotive Employees Union, Local No. 78, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization admitting to membership certain employees of the Respon- dent. The unit represented includes all station attendants, including station managers. III THE UNFAIR LABOR PRACTICES I A. Discharge for Union Activity 1. Background Respondent has its principal offices in its own building in Oakland, California, which houses not only the executive, administrative, and general offices of the Respondent but also other businesses related through ownership , including Ashland Oil Company. Respondent operates 21 so-called self-service automobile service stations , most of which are in the Oakland metropolitan area. The stations are operated 24 hours a day on three shifts, 6 a.m. to 2 p .m., 2 p.m. to 10 p in,, and 10 p.m. to 6 a.m. Next under Walter Simas , the president of Respondent, is General Manager Norman Herrold , who in turn has un- der him field representatives, of whom only Richard Nelson is here involved. Nelson has supervision of 7 to 10 stations. The station attendants are classified as manager, assistant manager, relief shift manager, and attendants. 2. Station managers as supervisors within the meaning of the Act Station managers are customarily present during most of the first shift of the day, but they are responsible for the operations of the station on all shifts . The station managers 1 Briefs were received from both parties and they have been considered. 188 NLRB No. 70 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take inventory of the gasoline, oil, and other supplies and cash at the beginning and end of their shifts. They have keys to the cashbox and to the two floor safes . One is the overnight safe, where a supply of operating cash is kept, and the other is for cash receipts . It requires two keys to open it. The latter one is called the "drop ' safe, into which must be dropped the cash receipts in excess of a certain amount of cash which is permitted to be kept on hand . The invento- ry, which is made up at the beginning and end of each shift, is taken in conjunction with the man in charge of the shift before or after the manager's shift, and a record, called the check-out-and-in sheet, is based on the inventory which the manager and the man preceding and following him take. On another sheet, which is called the shift sheet, the man in charge of the particular shift keeps a record of receipts and expenditures, as well as of the time and amount of money dropped. From the shift sheets, the manager makes up a consolidated master sheet, sometimes called the day sheet, which is a complete record of the activities of the station for each 24-hour period. The master sheet is picked up periodi- cally by the man who picks up the money from the safe, and it eventually reaches the main office, where the bookkeep- ing department goes over the figures on the day sheets, makes corrections, and refers the results to the general man- ager. The delay between picking up of the sheets and the delivery of them to the general manager could run 3 or more days. In addition to such bookkeeping duties , the managers make up the work schedules for attendants , direct their work, keep their time, order supplies, go to the bank when necessary for small change, male a survey of the prices of gasoline at competing stations , report to the main office any special problems, and maintain good customer relations. They are charged with the responsibility of holding down shortages. Although there is a conflict in the evidence as to whether or not managers can hire or fire, the weight of the evidence establishes, I find, that managers do not hire- they refer applicants to the main office-but they do fire or recommend for discharge . Managers are supplied with forms for terminating employees and, in cases where no difference of opinion would be likely to arise over a dis- charge, the manager's act of discharging would go through the main office for processing practically pro forma. Per- haps the final act in the routine of discharging an employee is not performed until the discharged employee's final pay- check is made out at the main office , but the decision to terminate in such a case is the manager's. Except in flagrant cases, such as those where an attendant is discharged for dishonesty or coming on the job drunk, however , a manager is usually expected to communicate to his field representa- tive his desire to terminate an employee and to state his reason. Even in such cases , however, the manager's rec- ommendation carries weight. The manager is also authoriz- ed to suspend an employee for up to 3 days and might do so in a case where delay in processing a discharge might be encountered. On all the evidence, I find that station manag- ers are supervisors within the meaning of Section 2(11) of the Act. 3. History of Willis' employment 2 Ross Willis was hired by Respondent on September 16, 1969, as a trainee attendant at the 33rd Street station at a 2 In an effort to show that Willis' discharge was part of a pattern, the General Counsel adduced evidence tending to prove that Station Managers pay rate of $ 1.665 an hour. After a week's training period, his pay was raised to the attendant's rate of $ 1.875, in ac- cordance with an agreement between the Respondent and the Union. On about October 1 , 1969, the Respondent was in the process of effecting a change in management at this station, and Grady Miller (who had been assistant manager at the Castro Valley station) was made manager. Nelson told Miller at that time that the man best qualified to handle the second shift was Willis . Willis did not like the hours of the second shift, but Nelson agreed to raise Willis' classifi- cation to relief shift and sheet man (as the classification is given in the Union's agreement with the Respondent, but called relief shift manager by some of the witnesses ) at a rate of $1.975 if Willis would take over that shift. Willis did so for a time, presumably until an assistant manager was hired to take over that shift . Thereafter, Willis returned to the first shift and remained on that shift until the day of his dis- charge . Meanwhile his classification and pay remained the same. When Miller became manager , he had an understanding with Nelson that, after Miller had done the paper work in the morning, he was free to come and go as he pleased, so long as the station was properly run. When Miller would leave the station, he would turn over to Willis the key to the cashbox with instructions to check out if Miller did not return, and Willis would make the money drops and check out the shift. From Miller's testimony and other evidence, I find that Willis was a very good attendant-prompt, re- sponsible, and agreeable to customers and other employees. During December of 1969, conversations among attend- ants at the 33rd Street station frequently centered on work- ing conditions and the union contract . Although all attendants, as well as station managers, were required, un- der the Union's contract, to be or become members of the Union and to have their dues deducted from their pay, they had never seen a union representative at the station nor had they been notified of any meeting of members. On a day in mid-December, after the end of the first shift, Willis and Station Manager Miller went to the Union's office and conversed with Walter Bovie, the Union's bus- iness representative . They asked Bovie for a copy of the current contract between the Union and the Respondent, but Bovie told them that he could not show it to them because it was at the printers 4 and that he did not wish to have additional copies printed so near the expiration date of the contract. This agreement had been executed on April 1, 1969, and was for a 1-year term, ending March 31, 1970, but was renewable for another year unless notice was given by either party by registered mail 60 days prior to the expi- ration date. This meant that such notice would be due to be Grady Miller and Keith Lawhorn were treated discriminatorily. Because Miller was the manager at Willis' station and because his activities were closely related to those of Willis, I have detailed the circumstances of Miller's discharge I find it unnecessary to detail the facts concerning Lawhorn. 3 Nelson testified that, before the change, the then manager, named as Harvey Wright by Willis and as Lewis McAfee by Nelson on one occasion but as Harvey Wright on another, was having serious shortages so he, him- self, took over the first shift and put the manager on the second shift . Appar- ently, by October 1, 1969, that manager had been replaced by Miller. ° Miller and Willis had heard that the inability to supply a copy of the agreement because it was at the punter's was the same answer that Bovie had given to Station Manager William Fields a year or two earlier when he sought to obtain a copy SIMAS BROS. given by January 31, 1970 . After further conversation, Bovie produced a copy of a contract preceding the current one for them to examine , and he promised to get them a copy of the current contract . Bovie told them that he was not happy with the contract in its present form but that he had had difficulty in organizing Respondent's employees , that there was a high turnover, that it was hard to get employees to attend meetings, and that he would appreciate any help he could get from the employees that would enable him to get a better contract. About a week or two later, Willis telephoned Bovie and asked if he had a copy of the contract yet. Bovie told him he had it waiting for them . Miller picked up the copy of the current agreement and returned to the station with it, where it was passed around among the employees. There were provisions in it concerning overtime pay, minimum pay for 4 hours or more, and other provisions that none of the attendants was familiar with . Miller and Willis proposed to work up a new proposed contract. Miller told Station Man- ager William Fields of what he and Willis proposed to do and asked if he was interested in helping . Fields told Miller that he would like to see the agreement and that he had a suggestion to make. When Fields saw the agreement, he made notations on it concerning health and dental insu- rance. Miller and Willis were under the impression that the 60- day notice provision required the submission of a new agreement by the end of January , so they decided to act fast in working up the changes they felt were desired and to circulate the proposed agreement among employees at other stations, as well as at their own, for approval, changes, or additions by the other employees. At the outset, they intend- ed to send copies of the final proposed agreement to both the Respondent and to the Union , but this plan was aban- doned later. Following discussions of changes that employ- ees had expressed a desire for, Miller prepared the new proposed agreement, and Willis had a number of copies thereof made . On January 24, Miller, with assistance from Fields and Willis, left copies of this proposed agreement at a number of Respondent s stations, with the suggestion that employees at each station sign on the back thereof if they ap roved, or make notes of any changes they saw fit. One manager, Tom Button, telephoned Miller on January 26 and told him that he was disturbed by the plan to send a copy of the agreement to the Respondent because Fields had told him that on an earlier occasion a group of attend- ants had written down some demands and presented them to the Respondent and that they had been discharged. Upon hearing this , Miller telephoned Fields, who confirmed the account given by Button .5 Miller and Fields , on the same day, called on Bovie, who told them that the Union had already served the 60-day notice on the Respondent and that that was all that was needed at that time . Miller and Fields then decided to let the Union handle matters there- after, and Miller turned over to Bovie the copy of the agree- ment which had been signed by the employees at his station. Miller and Fields asked that the Union call a meeting so the employees could make their views known . Bovie said that he was attempting to fix a date. When Miller left the Union's office, he went to the van- ous stations to pick up the copies of the proposed agree- ments which had been left there, and he suggested to Willis that he pick up one that Willis had left at another station. Willis did so. 5 I make no finding that Respondent actually discharged those employees because they had presented demands, but I credit Miller's testimony of his conversations with Button and Fields. 443 On the evening of January 26, General Manager Herrold told Richard Nelson, the field representative and Miller's immediate supervisor, to check Miller out and demote him to assistant manager at another station. Herrold testified that on the evening of January 26 he also decided to dis- charge Miller, but he did not testify that he revealed this intent to Nelson. On January 27, Nelson arranged to meet Miller at the 33rd Street station at 2 p.m. Miller left the station at about I I a.m. with word that he would return at 2 o'clock. Nelson arrived there before Miller returned and first spoke with John Ward, the assistant station manager , who was there to take over the second shift. Nelson asked Ward if he wanted the manager's)ob. Nelson testified that it was not his inten- tion then to discharge Miller-that he was merely ON to demote him because of excessive shortages and place him elsewhere as an assistant manager. When Miller returned, Nelson proceeded to check Miller out 6 Miller asked why he was being relieved of the managership. Nelson replied that he would let Miller know when the checkout was finished. Willis observed, as he entered the station office, that Nelson had in his hand a form headed "Change of Management," and he asked Nelson if he was discharging "our manager." Nelson told Willis that he would know before he (Willis) went home. In the checkout process, Nelson found a num- ber of IOUs in the overnight safe, indicating small loans made to station attendants from the operating funds. Miller testified that when he had first assumed the managership Nelson told him that it was better to lend the attendants small amounts of money when they needed it rather than take the risk of having attendants steal money. He also testified that he had seen IOUs at other stations . Nelson confirmed this although he testified that he had not seen IOUs in such large amounts.' Respondent's witnesses testi- fied that it was against the rules of the Respondent to lend money out of its funds and that Miller should, if he was going to lend money, have done so from his personal funds. filler's checkout form, made out by Nelson, which was introduced in evidence, has on it a printed question: "Are there any IOU's?" This was followed-y: "If yes, list amount and names." This latter part was not filled in by Nelson. The Respondent did not, by any written evidence of such a rule, confirm the testimony that taking IOUs for small loans was against the Respondent's rules. If the Respondent did not approve the practice of making such loans on IOUs, I can see no reason for inclusion of the questions about them in the checkout forms. Miller asked Nelson, after the checkout was complete, the reasons for his removal. Nelson told him (1) that Miller was not at the station enough of the time and Nelson was unable to reach him by telephone when he wanted him and (2) the shortages at the station were exces- sive in the prior months.8 He did not say anything about the IOUs except to say that Miller was responsible for them. Yet Herrold, who had apparently decided earlier to dis- 6 Miller testified that, when he returned a few minutes after 2 p in., Nelson was already checking him out . Nelson testified that he did not start checking Miller out until after Miller's return I find the difference to be one of semantics and that Nelson had already begun to check on some things. 7 One, a loan to Miller's assistant manager, who later transferred to an- other station, was larger than normal The rest were small loans. 8 After shortages had dropped for the first 2 months that Miller had been in charge, they rose to about $863 in December and appeared to be running rather high in January after a low first week, although it is not likely that the results of Miller's final week would have been known to the Respondent by January 27 The sheets are first checked and corrected by clericals and then Nelson would see them about 3 days or so later There are a number of possible contributing reasons for shortages other than dishonesty of attend- ants, although, when losses reach the figure reached in December, dishonesty looms as a contributing factor 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge Miller, testified that he decided to cause Miller's discharge when he learned of the IOUs. Nelson told Miller that he was not being discharged at that time. Miller asked if there was a possibility of his keeping a job with the Res- pondent. Nelson told him that he would have to speak with General Manager Herrold about that 9 That evening Miller telephoned Fields. Fields' wife told Miller that Fields was at Nelson's apartment. Fields later returned the call and, according to Miiller,10 told Miller that Nelson had been "chewing" him out and warning him against any further union activity." Miller told Fields of his removal as manager . The next day, Miller went to the Un- ion to file a grievance about his being relieved of his manag- ership. Then he went to the Respondent's offices and met Nelson. Nelson had Miller's discharge slip already prepar- ed. Nelson gave it to Miller.12 The reason stated for his discharge was "improper management." Miller asked to speak with Herrold but was told that Herrold was too busy to see him. On Friday morning, January 30, Willis was alone at the 33rd Street Station. Miller, although no longer employed, dropped in and helped Willis (who was alone) for a time; then he telephoned the Respondent's office and reported to Herrold that Willis was alone at the station. The hours of 6 to 8 a.m. are the busiest hours of the first shift. That afternoon Nelson went to the 33rd Street station and spoke with Willis. Willis complained of the lack of help and the difficulty of pumping gasoline alone, especially between 6 and 8 a.m., and he told Nelson that he thought the Re- spondent was either trying to work him so hard that he would quit or was trying to invite customer complaints so that the Respondent could fire him.13 Nelson told Willis that he was not trying to give him a hard time and that he had had no complaints about Willis. Nelson said that he would have Ward help Willis pumpp ggas during the busiest hours, that it was not necessary for Willis to do it alone. Willis said that Ward usually was working on the day sheet and did not seem to be able to get out to help pump gas. Willis asked if it was his responsibility also to check in the shift and make money lots, as well, I infer, as pump gasoline and handle custom y himself. Nelson told him that Ward was to check in the shift and make the drops, as well as help Willis pump gasoline during the busiest time, and that Ward could work on the day sheet as time permitted. Nelson testified that he had repl d to Willis' question by answering that, if Willis was left in charge-if he ran a shift-naturally he would be responsible for making money drops. Nelson testi- fied that he was referring to the fact that if, on the 6 a.m. to 2 p.m. shift, the manager was gone (i.e. left the station in the middle of a shift), Willis "would naturally drop the money." I find that no such meaning was conveyed to Willis and that the conversation resolved about Willis problem of what to do when Ward did not show up at the start of a shift 9 Nelson had, on other occasions, demoted station managers and located them as assistant managers at other stations. This was done in the case of Miller's predecessor at the 33rd Street station-Harvey Wright. 10 Fields was not called as a witness to corroborate this. 11 Nelson testified that he had spoken to Fields at his home about reassign- ment but denied any mention of the Union . I do not rely on what Fields purportedly told Miller in this connection about what Nelson had said to him in his apartment in making my findings regarding Willis' discharge . I do not, however, exclude the evidence that tends to show that Fields was at Nelson's apartment that night. 12 In the space for the name of the discharged employee 's immediate supervisor was the name Norman Herrold Nelson, Miller's immediate super- visor, signed as a witness. 13 Willis' suspicions could have been correct, but it is also possible that the Respondent was experiencing difficulty in finding satisfactory attendants or when Willis was required to pump all the gasoline while Ward was doing his bookkeeping. Willis commented that, since Miller had been discharged, he had frequently had to pump gasoline by himself. According to Willis' testimony, he and Nelson talked of Miller's discharge, and he testified that, in this part of the conversation, Nelson said that, when (President) Simas had seen a copy of the proposed contract, he had become furious and said that nobody was going to tell him how to run his business; that Simas had planned a meeting which was to have taken place about an hour or so after the time he received the copy of the contract and that he was so angry that he called off the meeting which, if it had been held, was designed to give the employees a raise; that, if it had not been for that contract, the employees would have their raise already; and that Willis had asked how much the raise was going to be, whether it was going to be a quarter (of a dollar) an hour, and that Nelson had looked surprised and said, "Yes." Willis further testified that, after reassuring him that Ward would do the sheets as he had the chance, would drop the money, and would help Willis pump gas, Nelson departed saying, "Don't worry, things are going to get better and we will get things worked out. Nelson denied that he had told Willis that Simas was furious about the proposed union contract or that he had had any conversation to which the subject was the Union. Nelson did not appear to me to be the I=d of person who would reveal, in gossip, confidential information to one whom he knew no better than he knew Willis. Simas testi- fied that he was not aware of the circulation of a new contract. In reaching a decision not to rely on the portion of Willis' testimony that dealt with Simas' purported re- action, I take into account the fact that another witness, Keith Lawhorn, a former station manager, testified that his brother-in-law, Tommy LaCase, another station manager, had related to him that Nelson had told LaCase in late January that Simas had said that nobody was going to tell him how to run his business, that he would fire anyone who had anything to do with the contract, that he was going to put the station managers on salary so they would work if there was a strike, that he (Simas) was in the process of offering a quarter raise at the time; and that this contract (the proposed one) would set him back 2 or 3 months. Nelson was closer to LaCase and Lawhorn than he was to Willis and, if Nelson made any such purported statements, I believe he would have made them to LaCase or Lawhom rather than he would have to Willis. 14 Because this portion of Lawhom's testimony was second-hand hearsay, even if LaCase had had such a conversation with Lawhorn, I give that testimony no weight as proving any statements by Si- mas. I am inclined to infer, however, that Willis had heard via the grapevine the story related by Lawhorn and that Willis erroneously attributed it to Nelson in his own conver- sation with him. Two days later, Sunday, February 2, 1970, about 7:30 a.m., Willis telephoned Nelson and told him that he was again alone pupping gas. Nelson asked where Manager Ward was, and Willis replied that, according to the sched- ule, it was Ward's day off. Nelson said that he had talked with Ward the that before and that Ward had said he would be there and that perhaps John Patella was scheduled to come at 8 a.m. Willis said that, according to the schedule posted, no one was due to come in until 2 p m. Nelson told Willis to look at a schedule under the day sheet on the desk. Willis did so and found a schedule there that showed that Patella was due to arrive at 8 a.m. Apparently, however, Patella had previously spoken to Ward and Nelson about 14 Nelson did not specifically deny having made such statements to La- Case SIMAS BROS. inability to be there on Sunday. Ward showed up, himself, close to 8 a.m. At some time after January 26, the date not being re- vealed with certainty, Willis distributed to employees at Respondent's stations a printed notice which, among other things, stated that they should have a new union contract by April 1, 1970, and asked the emplo +ees, "Will you have anything to say about that contract? There followed an exhortation: "If you want anything more than what Simas Bros. wants to give you, call Mr. Walter Bovie.... Let him know you are aware a new contract comes due April 1, 1970. Ask for a called union meeting about the new contract. Don't allow them to negotiate for you." This notice was introduced in evidence by the Respondent in an effort to prove that Willis was trying to bypass the Union." At 6 a.m. on February 4, William Fields, the manager of the Castro Valley station, appeared at the 33rd Street station and told Willis that he was there to show Ward how to make out the sheets and manage the station. Willis quoted Fields as telling him that he had had trouble over the union con- tract; that Simas (meaning, I infer, the Company) had called him into the office and threatened to fire him; and that he had talked to Nelson and Herrold at the office for some hours,16 during which time he had told them that his com- plaint was not with the Respondent but was with the Union, which had made it necessary for the employees to engage in this type of activity. As a result of this talk, Fields told Willis, according to the latter's testimony, that he had been permitted to keep his job but that from then on he had to put on his overalls and pump gasoline and to service auto- mobiles, as well as attend to his managerial duties. Since this testimony was hearsay and was not a statement made by Fields in his supervisory capacity, and since Fields was available to testify but was not called, I do not rely on this testimony of Fields' statement as proving anything told to Fields by Herrold or Nelson, but I find that what Fields told Willis on this and on other occasions had some bearing on what Willis believed and on how he acted. When Ward arrived an hour late, he and Fields got into a noisy argument in which Fields told Ward that he had the power to discharge him. The argument continued without interruption until-Fields made a telephone call at the public telephone booth, since the telephone in the station office was out of order. The telephone call they made apparently was to Nelson at. about 8:30 or 9 a.m. Up to that time, Willis alone was pumpng gasoline. About that time, Willis turned over to Fields and Ward the money he had collected over and above what he was supposed to keep for change. Either Ward or Fields should have dropped that money in the safe and noted the drop on the sheet with the initials of the one making the drop, but apparently neither did make the drop, because no notation appeared on the sheet that morning. About the time when Willis gave them the money, Fields and Ward started working on the day sheet, but they contin- ued to converse in heated tones. They attempted at times to involve Willis in the argument by asking him to confirm a statement. Willis managed to avoid participation while he was busy on the pumps, but Ward once asked Willis why Willis had called- pWard in late on Sunday (February 2). Willis replied that he did not do so, that he had dust called 15 At one point in the record it was implied that this was distributed after Willis was discharged . If it had been, it certainly had nothing to do with Willis' discharge. If it was distributed by Willis before his discharge, and if the Respondent came into possession of it then, it might have had considera- ble to do with Willis' discharge. 16 Herrold testified that he had had talks with Fields on what I fix as February 3, when he had transferred Fields to the 33rd Street station on a temporary basis, presumably to start on February 4. 445 Nelson and told him there was no one there between 6 and 8 a.m. He told Ward that he had told Nelson that he under- stood Sunday was Ward's day off. Ward apologized to Wil- lis, saying that Fields had him so upset that he did not know what he was doing. About 9 :30 a.m. that morning, Fields left, saying that he was taking his daughter to the hospital . Fields had previous- ly reached such an arrangement with Nelson. At 1 a.m. an attendant named Gates arrived to start an 8-hour shift, and at 10:30 a.m. Ward gave Gates the key, saying that he was going to the hospital and would be back , but he did not say when. About II o'clock Willis checked the cash he was carrying and decided that it should be dropped in the safe. He looked at the day sheet and observed that no drops had been recorded there, so he decided not to make one himself lest he might be considered as having assumed responsibili- ty for all the money that should have been dropped . Wheth- er or not he actually would have made himself responsible was disputed by the Respondent at the hearing , but I find that Willis had cause to be apprehensive because that morn- ing 17 Miller and Willis both testified that Miller had come to the station that day and told Willis that he had been told by Fields the night before that Fields was being transferred to the 33rd Street station and that one of the things he was supposed to do was to fire Willis . I have doubts concerning this testimony because I noted that, when Willis was sum- marizing the events of the day on cross-examination, he failed to include this supposed incident which, if it had occurred, would be expected to have been a major factor in explaining Willis' attitude, which he was attempting, by the summary, to explain. I do not find that Fields made such a statement. By 1:45 p .m., shortly before the change of shifts, Ward had not yet returned and two men for the 2 to 6 p.m. shift had already arrived . Willis explained the difficulty with the drops and, between the four of them, they decided to run the two shifts together without checking out and in. About that time a fire extinguisher sales and service man, who had been attempting to repair the fire extinguisher at the station, telephoned General Manager Herrold from the public phone booth to ask permission to install a new one. After giving permission , I{errold asked the fire extinguisher man to the the man in charge of the station to the telephone. It was then about 1:50 p.m . The fire extinguisher man presum- ably asked which one of the four men was the one in charge, because Herrold had the man give a description of the men there . Herrold apparently recognized the description of Wil- lis, but whether or not he ppeecifically called for him is not apparent. In any event, Willis did go to the telephone. Her- rold had had a telephone call that morning from a man at Ashland Oil Company regarding the question of need for delivery of gasoline at the 33rd Street station, but he told Herrold that he had called the station and could not get through because he always got the busy signal. Herrold had told the Ashland man that he would send someone over to the station to see that the call to Ashland would be made from there. I infer that Herrold had heard nothing from the man he sent, if he sent anyone, because he immediately asked Willis if he would "stick" the tanks and notify the Ashland Oil Company of the amount of gasoline in them. Willis said that he would. Herrold testified that, after he had told Willis to notify the Ashland Oil terminal, he had asked him where the manager was, that Willis had replied that the manager had stepped out for a few minutes , and that he (Herrold) had then told Willis to check out. Willis denied that Herrold had asked him to check out. He testified that, after Herrold had been 17 Miller testified it was morning Willis fixed the time as about noon 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told that the manager was not there, Herrold had asked for the assistant manager and that he had told Herrold that they did not have an assistant manager, that Herrold then asked who was dropping the money, that Willis had replied that no one was at that time, and that Herrold had then asked him to take the stick readings. When a shift is checked out, the job of taking inventory usually starts well before the change of shift and the last step in checking out is to stick the tanks. If Willis took the stick readings at the time re- quested, it would have been past check out time before he could finish, and the new shift would already have started. From the conversation related by Herrold, he was given no reason from Willis' purported reply to believe that Ward would not return in time to check out the shift. Therefore, there was no reason why Herrold should have asked Willis to do so. Aside from this and other inconsistencies, Herrold's demeanor on the stand was not such as to con- vince me that he was completely candid. I credit Willis' account of the telephone conversation. Willis was still in the process of sticking the tanks to measure the remaining gasoline when Nelson drove up. Ac- cording to Nelson he arrived at 2:15 p.m. He immediately asked Willis where Ward was. Willis, who conceded he was in a bad mood because of the aggravations of the day and because Nelson had previously told Ward, incorrectly, that Willis had complained of Ward's failure to appear on Feb- ruary 2, replied to Nelson's question: "I don't know. All I do is pump gas." Nelson told Willis that he was ordering him to tell him where Ward was. Willis repeated his answer. According to Nelson, he saw that Willis was in a fairly bad mood and that he (Nelson) "sort of passed it off" and went to the station office. Willis finished his task a few minutes later and went to the office just in time to receive a tele- phone call from the Ashland Oil Company man on the office telephone line, which was suddenly reactivated. Willis gave him the stick readings, then took off his coveralls and went to get his car from in back and drove it to the office, I ot out, and told Nelson that he had not dropped the money or the first shift. Nelson asked what Willis had done with the money; Willis told Nelson that he had put it in the cashbox. Nelson asked if Willis would be there for the morning shift the following day. Willis said he would be, and Nelson asked if he would, at that time, read the pumps and take inventory. Willis said that he would but that he would need someone there to work with him because it would be impossible to do all that and service the customers as well. Nelson said that he would have someone there. Willis then left. Nelson then told one of the attendants, who was appar- ently in charge of the 2 to 10 p.m. shift, to drop the money for the morning shift. The only consequence of the failure of anyone to drop the money during the morning and the failure of the manager to check the shift out was that, if there was a shortage, the Respondent would not be able to pinpoint a loss to a particular shift that day. There was, in Pact, a shortage of $12 that day, which was not considered serious (Herrold spoke of it as a shortage of "only" $12), but it could not be determined whether this shortage had oc- curred on the first or second shift. On the evening of February 4, Ward went to the main office and spoke with Nelson, saying he had heard that he was fired. Apparently Nelson had left word at the station to have Ward see him. 8 Nelson testified that Ward told him 18 Nelson testified that he so requested Willis as Willis was leaving for the day. It does not seem logical that he would have asked Willis, since there would appear to be little likelihood that Willis would have seen Ward before morning Since Ward apparently did receive the message, I infer that he got he had gone to the hospital and that Willis knew where he had gone . According to Nelson , Ward smelled of liquor. Nelson discharged Ward the next day. On the morning of February 5, Fields and Willis were at the station. The General Counsel sought to elicit from Willis when he was on the witness stand a conversation that morn- ing in which Fields had said something about why he was sent over to the 33rd Street station. Willis could not recall. Counsel for the General Counsel then asked if Fields had said anything about Willis' being fired . Willis, not specifi- cally identifying the conversation as having taken place on February 5, testified: "Well, we had talked about that on a couple of occasions and we would recount the details. He had mentioned that was a possibility." When asked then what Fields had said, Willis testified that Fields had told him that Nelson had told Fields that, when Fields had been sent over, Fields was to fire Willis and that Fields had told Nelson, in substance, that he would discharge Willis if he had cause to but not otherwise. At 2:15 p.m. that day, according to Willis , Fields told Willis, "Dick Nelson said if you promise not to have anything more to do with the Union, you can keep your job. Otherwise, we'll have to fire you." Willis testified that he had first replied to Fields , "I'll not promise Nelson anything," but that he had amended that to say not to tell Nelson that but to say he would talk to Nelson about it if Nelson would come to him personally. Since Fields was a supervisor within the meaning of the Act and had authority to discharge Willis, the Respondent would be chargeable with what Fields purportedly said on this occasion. It did not, however, call Fields to give his account. It relied exclu- sively on Nelson's general denial that he had had any dis- cussion with Fields concerning unions, union activities, union dealings of the Company , or any similar subject. Whether ,or nor Nelson in fact told Fields what the latter actually told Willis on February 5, the Respondent would be chargeable with Fields' statements to Willis. In the ab- sence of any denial by Fields , I credit Willis' testimony of what Fields told him. On the evening of February 5, Nelson gave Herrold a report of what had occurred at the 33rd Street station on February 4 and of the fact that Fields had, on February 5, in making up the master sheet, found that there had been a shortage of $12 which could not be attributed to either the first or second shift because the first shift had not been checked out. According to Nelson and Herrold, the latter had told Nelson that he had told Willis to check out. Her- rold testified that he had then decided to discharge Willis at the end of the shift the next day . Because of the evidence of what occurred on February 6, as well as because of my prior finding regarding Herrold's testimony of what he had told Willis on the telephone , I do not credit Herrold's testi- mony that failure of Willis to check out on February 4 was what caused him to decide to discharge Willis. On February 6, when he arrived at work , Willis asked Fields if he had talked to Nelson, presumably about the conversation between Fields and Willis at 2:15 p .m. the previous day. Fields replied, according to Willis , that Nel- son had called him on the telephone "last night." Willis asked what Nelson had said . He quoted Fields as replying, in service-station vernacular, that Nelson had been angry. Willis asked Fields if he was going to "get the axe today," and Fields had replied, "I think you probably are." Later that morning, according to Willis, he came into the station office and overheard Fields talking on the telephone and deduced that Fields was talking with Nelson, since Fields had used Nelson's nickname . When Fields was it from someone on the afternoon shift. SIMAS BROS. through, Willis asked what the "word" was. Fields replied, according to Willis, "Well, that was Dick on the telephone and he says Walter Simas wants you fired and Walter Simas has ordered that you be fired, but Dick says he doesn't have a reason for firing you and he can 't find a reason to fire you"; and Nelson had asked him [Fields] if he had any reason that could be used for firing Willis and Fields had replied that he had no reason to fire Willis. Willis asked for a few minutes off and Fields granted his request . Willis used the time to telephone an attorney with whom he was acquainted. At 10:30 a.m. the same morning, Fields told Ward that he was going out to make a station survey to check gas prices in the neighborhood . Shortly thereafter Nelson tele- phoned and asked if Fields was there. Willis answered saying that Fields had said he was going out to make a survey and would return in about an hour . Nelson said, "thank you, and good-bye." Fields returned as expected in an hour. Between 12:30 and 1 p.m., former Manager Miller came in and waited. Fields delayed checking out the shift until about 2:20 m. Willis then went into the office, re- moved his coveralls, and asked Fields if he should come to work in the morning . Fields shook his head negatively and took two pieces of paper out of the cashbox . One was Willis' discharge slip and the other was headed "Simas Bros. Em- ployee Discharge or Voluntary Quit Report." Both showed the cause of discharge as "Quarreling with supervisor." Fields asked Willis to sign the discharge slip, but Willis refused to do so . Fields then noted, in the space for the employee's signature, Willis' refusal to sign. The second form, a copy of which was introduced in evidence, was signed, not by Fields, but by Nelson. The handwriting on Willis' discharge slip, except for Fields' signature, bears a striking similarity to the handwriting on Miller 's discharge slip. Although Nelson had signed that slip , the rest of the handwriting thereon is not similar to Nelson's. It is, rather, similar to that of a girl in the main office , whose handwrit- ing appears on the return receipt signed on delivery of the original charge in this case . From this, I deduce that Willis' discharge was initiated in the main office and that the dis- charge slip was delivered by Nelson to Fields (probably while Fields was out making his price survey) along with the discharge report form. The latter contained no other infor- mation than the statement "Quarreling with supervisor" which Nelson had presumably copied from the cause of discharge on the discharge slip. 5. Concluding findings regarding Willis discharge Although Herrold did not testify on direct examination for the Respondent that Nelson and he had, on the evening of February 5, discussed a quarrel that Willis might have engaged in as a ground for discharging Willis, he conceded on cross-examination that the word "quarrel" had come into his conversation with Nelson, although Nelson was probably the first to use the word; and, when asked if Her- told, when he had decided to discharge Willis and had told Nelson to do so, had given Nelson any instructions as to how he was to do it, replied: "No. Well, I'd say-yes, I did, too. From his [Willis'] belligerent remarks on I don't know where the manager is' or `I don't care,' I would say that was quarreling." Nelson, likewise, sought to characterize Willis' disgruntled reply to Nelson's question on February 4, about where Ward was as "quarreling." Yet, on February 4, when the incident occurred, Nelson, by his own testimony, " assed it off." He did not reprove Willis or comment in any Yet, on February 4, when the incident occurred, Nelson, by 447 way on Willis' disposition; before Willis left for the day, Nelson asked him if he would be willing to read the pumps and take inventory the following morning. This is hardly the conduct of a supervisor who contemplates discharging a man for alleged quarreling. In fact, it is quite apparent that dischargin Willis was not the idea of Nelson at that time or at all. Herrold conceded that he was the one who had made the decision. Oddly enough, however, although Her- rold testified that it was Willis' failure to check out the shift on February 4 that led him to discharge Willis, he did not so recite on Willis' discharge slip, but instead used a reason that appeared to have no real basis. I infer that Fields' quarrel with Ward might have suggested to the Respondent the possibility of creating a similar situation--one in which Fields would embroil Willis in an argument on February 6-as a ground for discharge. I further deduce that Fields was unwilling to participate in such a fraudulent scheme, despite instructions, and that his failure to do so left the Respondent with nothing but embarrassment .9 At the hearing, for the first time, the Respondent offered evidence of other causes for criticising Willis. One involved an incident in December or January when a customer, who had just returned from Nevada, handed to Willis a mini- ature bottle (approximately 1 1/2 ounces) of vodka and a carton of orange juice. Nelson happened to arrive at the station while the vodka bottle was sitting on the desk. He picked it up and put it in his hip pocket. When Willis en- tered the office, he picked the bottle out of Nelson's pocket, with the remark that that was his, and he put the bottle on the shelf. Nelson apparently looked on the matter as so much horse play, because he did not take any action against Willis, even though Willis had claimed ownership. The fail- ure of Nelson to seize the bottle or even give instructions to get rid of it, as he had done when he had found evidence of beer drinking at another station, indicates that Nelson was not concerned with the incident. I do not credit Nelson's testimony that he had warned Willis as he had done with beer drinkers at other stations. Nelson testified that he had not smelled liquor on Willis and, although he had seen a paper cu with some orange juice in it, he made no further inquiry. Asked why he had not discharged Willis for violating a company rule regarding having liquor on the premises, Nelson replied that it was because the Respon- dent was short of men. Nelson further testified that, when Willis claimed the vodka bottle was his, Nelson looked at Miller, who "sort of smiled," and he quoted Willis as re- marking (facetiously it would appear) that "it helps to drink to work in a place like this." Nelson testified that he did not know why he had let Willis have the vodka bottle instead of taking it himself. He further testified, "I had been pressed for men and I had been told ... when I first started the job ... Norman Herrold had told me that if it is possible, its much better to try and keep a man than it is to just up and fire him, if he would make a good man." I conclude that Nelson did not look on the situation seriously, and I find that his bringing this incident into the case was merely attempted makeweight. Additional attempted makeweight was Nelson's testimo- ny that on one occasion in January when he had asked Willis where Miller was, Willis had said that he did not know-that it was the business of the manager to know where Willis was but not the business of Willis to know where the manager was. Nelson testified that, later, he had 19 This conclusion could explain in part why the Respondent did not call Fields as a witness 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located Miller at the Castro Valley station and that Miller had told him that Willis had known where he was . Neither Miller nor Willis was asked to confirm the latter testimony, and I note that one of the complaints Nelson listed against Miller was that, when Miller left the station , he did not leave word where he could be reached. I discount Willis' failure to make any of the money drops on February 4 as a real cause, even in part, for Willis' discharge. Since Willis had, on that morning, already turned over money to Fields and Ward, and since they had record- eO no drops, Willis had no way of knowing whether or not all the money was in the cashbox , or whether some of it had been dropped in the safe without a record thereof. Willis feared, not without some justification , that, if he had made and recorded the first drop, he could have been held respon- sible for all the receipts of-the shift . To him, with some cause for suspicion, it could have apppeared to be a trap to give the Respondent a pretext to discharge him. In any event, neith- er the failure to make the drops , the failure to check the shift out, nor the failure to tell Nelson where the manager was was specifically given as the cause of Willis' discharge on either the report of discharge or on the discharge Shp itself. Nelson and-Herrold made a feeble attempt to bring some of Willis' conduct under the description of "quarreling." Nelson testified : "He quarreled with me that he should have more help in the station, and I was overworking him." On redirect, with the aid of a leading question from Respondent's counsel, Nelson described qquarreling as, "All of the instances, really, that we have bropght out here today, not telling where Mr. Miller was , stuff like this . The quarrel- ing could mean any number of things." Nelson also described Willis' attitude, when he had asked Willis where Ward was, as belligerent. I find that either Nelson did not know the meaning of the word "belligerent" or he was purposely exaggeratin . Both Nelson and Herrold sought to make it appear that when a manager is away from the station at the close of a shift, the relief shift manager "naturally" has the duty to check out. I am not satisfied that this would be the case unless the manager had specifically asked the relief shift manager to check the shift out, and since Ward had said he would be back when he left on February 4, and had not specifically asked Willis to check out the shift, Willis had every reason to suppose that Ward intended to return. Fur- thermore, there was the suspicious circumstance that Ward had made no drop or, if he had, had not made a record of it. In any event, however, if the real reason for discharging Willis was failure to check out the shift, why was that not stated on the discharge slip? Since I have not relied on the hearsay testimony to prove the Respondent's motive for discharging Willis for advocat- ing a better union contract and supporting a movement to this end, the question may be raised as to whether or not Respondent's motive has been established . Direct evidence of motive is rarely supplied in cases of pretext and the motive must be inferred from all the facts . As stated by the court in Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466 (C.A. 9): If he [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. 0 In this case, the following facts are significant : Respon- 20 See also Custom Chair Manufacturing Co., 170 NLRB No. 62, enfd 422 F.2d 1300 (C A. 9) dent had a high turnover of employees ; if an employee was a good one, Nelson had been advised not to discharge that employee for slight cause; and Willis was well thought of as an employee-a good worker and a reliable one; whatever criticism the Respondent had of Willis for his conduct on February 4 was not serious, certainly not serious enough for discharge, especially where, as here, he had not been re- proved on the spot by Nelson , and Nelson showed no other evidence of considering it serious. Nor was Willis told later that he had done something that was disapproved. All that the Respondent told Willis was that he was discharged for arguing with his supervisor, a patently false charge. The General Counsel did not prove , except by hearsay testimo- ny, on which I do not rely , that Respondent actually knew of Willis' union or concerted activities. However, scienter may be inferred from other evidence, including the facts that Willis had openly engaged in promoting a new and stronger union contract ; that Respondent suddenly dis- charged an employee (Willis), who-had a good reputation and whose shortcomings were far from substantial ground for discharge, although Respondent was shorthanded; and finally that Respondent gave an untenable reason for dis- charging him. The Respondent did not explain how it came into possession of the titer which Willis had distributed to attendants at certain stations . The Respondent could as readily have come into possession of the proposed contracts and information concerning Miller's and Willis' participa- tion in the preparation of those documents. Not all the managers cooperated with Miller and Willis. The Respondent sought to make it appear that Willis had engaged in unprotect concerted activities by pointing to a part of the language of the flier composed byWillis urging employees to make known to the Union's business agent their ideas of better terms and conditions of a contract. The Respondent's emphasis on the phrase therein , "Don't let anyone else bargain for you," is misleading , since the inter- pretation the Respondent urges (that Willis was suggesting the employees by-pass the Union) takes that portion of the message out of context. It totally ignores the advice to notify the Union's business agent of the employee's views. Fur- thermore, there is no showing that Respondent relied on this flier as a cause for dischar ging Willis. I conclude and find, on all the evidence, that the Respon- dent discharged Ross Willis because of his union or concert- ed activities thereby discriminating in regard to his hire and tenure of employment and interfered with, restrained, and coerced Ross Willis and other employees in the exercise of the rights guaranteed in Section 7 of the Act , all in violation of the Act. IV CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ross Willis because of his union activities, Respondent has discouraged membership in the Union in violation of Section 8(a)(3) of the Act. 4. By discharging Ross Willis because of his union or concerted activities, Respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. SIMAS BROS. RECOMMENDED ORDER 21 Respondent, Simas Bros., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Automotive Employees Union, Local No. 79, International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees in regard to hire, tenure of employment, or any term or condition of employment. (b) In any manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights to self-organi- zation, 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 other mutual aid or protection, or the right to refrain from any or all such activi- ties, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Offer Ross Willis immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make Ross Willis whole for any loss he may have suffered by reason of the discrimination against him by paying him a sum of money equal to that which he would have earned in the Respondent's employment, including not only wages but all other emoluments that he normally would have received between the date of his discharge and the date of Respondent's offer of reinstatement (less his net earnings elsewhere) computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with inter- est on the sum so computed at the rate of 6 percent per annum 22 (c) Preserve and, upon request, make available to the Board or its agents, for examining and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records relevant and necessary to a determination of the amounts due under paragraph (b) above. (d) Notify Ross Willis, 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. (e) Post at each of its service stations which are located in and about Oakland, San Francisco, and suburbs, copies of the notice marked "Appendix."23 Copies of said notice, on forms provided by the Regional Director for Region 20, 21 In the event no exceptions are filed as provided by Sec 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 Sec 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 22 Isis Plumbing & Heating Co , 138 NLRB 716 23 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 " 449 after being duly signed by Respondent's authorized repre- sentative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.24 24 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 20, in writing, within 10 days from the date of this Order, what steps it 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 offer Ross Willis immediate and full rein- statement to his former position or, if that no longer exists, to a substantially equivalent osition, without pre udice to his seniority or other rights or privileges. E WILL make Ross Willis whole for any loss he may have suffered as a result of the discrimination against him. WE WILL NOT discourage membership in Teamsters Automotive Employees Union, Local No. 78, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by discriminating in regard to the hire or tenure of employment of any of our employees. WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assistTeamsters Automotive Employees Union, Lo- cal No. 78, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, or any other labor organization, to bargain 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, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. Simas Bros. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 question concerning this notice or compliance with its provisions may be directed to the Board's Office, 450 Golden Gate Avenue , Box 36047, San Francisco, California 94102, Telephone 556-0335.