The Lima Lumber Co.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Lima Lumber Company and Truck Drivers, Warehousemen and Helpers Union, Local 908, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA-51 10 June 16, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 29, 1968, Trial Examiner Ramey Donovan issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Respondent filed exceptions with 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 that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. We do not agree with the Trial Examiner's finding that Sharp, the discharged employee, is not entitled to reinstatement and is to be reimbursed for lost earnings only for the 2 hours after his termination. There is no dispute as to the facts. On July 29, Sharp made a delivery of lumber and as he left the yard the load on his truck shifted , apparently evidencing an improper securing of the load. At the site his truck became stuck in the mud and another truck had to be sent to pull it out. When Sharp returned to the yard at about 8:30 a.m ., he was warned of discharge if another instance of his load shifting occurred. Immediately following this, he was asked about being the instigator of the union activity in the plant, and upon his denial of this role, he was peremptorily discharged . Two other employees were promptly told of Sharp' s discharge, were asked whether they had signed union cards, and were threatened with loss of work and earnings if the Union came in . At approximately 10:30 a.m., the customer to whose site the earlier delivery had been made reported to Respondent's assistant manager that lumber was scattered over the jobsite, and the assistant manager responded that the employee responsible had already been fired. 176 NLRB No. 90 The Trial Examiner properly rejected the Respondent's claim that Sharp was discharged because of the incident in making the delivery, or because of the customer's complaint concerning it, as knowledge of this occurrence did not come to Respondent until after Sharp had been discharged. We cannot agree, however, that, although Sharp's discharge itself was for unlawful reasons and the Respondent's asserted grounds therefor are without merit, those same asserted grounds removed the taint of illegality 2 hours later. Since the Respondent unlawfully discharged Sharp at 8 :30 and immediately engaged in flagrant coercive conduct, we find no basis for an assumption that at 10:30 a.m . Sharp would necessarily have been discharged solely because of the complaint by the customer. The question of whether Sharp would have been discharged for lawful reasons at 10:30 is conjectural, and there is no way to establish that this would clearly have occurred . As the established unlawful reasons for the discharge at 8:30 a.m. cannot be disentangled from the conjectural grounds, we are of the opinion that the Respondent, rather than the employee, must assume the risk of any uncertainty. Accordingly, we do not adopt the Trial Examiner's recommended Remedy, but rather, we shall provide for the usual reinstatement and backpay remedy, and modify the Trial Examiner's Recommended Order to conform herewith. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that Respondent cease and desist therefrom and take certain affirmative action . We shall further order that Respondent offer Daniel Sharp immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and that he be made whole for any and all losses he may have suffered by reason of the discrimination against him. Any backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, The Lima Lumber Company, Lima, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein. 1. Substitute the following as paragraph 1(b) of the Trial Examiner's Recommended Order: THE LIMA LUMBER COMPANY "Discouraging membership in Truck Drivers, Warehousemen and Helpers Union, Local 908, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment." 2. Add the following as paragraph l(c): "In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 3. Delete paragraph 2(a), insert the following as paragraphs 2(a), 2(b), and 2(c), respectively, and reletter the original paragraphs 2(b) and 2(c) as paragraphs 2(d) and 2(e). "(a) Offer to Daniel Sharp immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner described in the Remedy section herein, for any loss of earnings suffered by reason of the discrimination against him. (b) Notify Daniel Sharp, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll and other records necessary or helpful in analyzing the amount of backpay due under the terms of this Order." 4. Delete the second and third indented paragraphs from the notice and substitute therefore the following: WE WILL NOT discourage membership in or activities on behalf of Truck Drivers, Warehousemen and Helpers Union Local 908, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization , by discriminating in regard to the hire and tenure of employment of any of our employees because of their concerted or union activities. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , or to join or assist the above-named union or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 697 WE WILL offer immediate and full reinstatement to Daniel Sharp to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him. WE WILL notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner : The charge in this matter was filed on August 5, 1968, and the complaint issued under date of September 11, 1968. It was alleged in the complaint that Respondent illegally interrogated and threatened its employees and that it illegally terminated one named employee, all in violation of Section 8(axl) and (3) of the Act. In its answer, Respondent denied the commission of the alleged unfair labor practice. The complaint alleges facts about Respondent 's retail lumber business, in Lima, Ohio, that satisfy the Board's standards for asserting jurisdiction . Respondent's answer admits these facts and concedes that it is an employer engaged in commerce within the meaning of the Act. We so find. The pleadings of the parties also establish that the Union is a labor organization within the meaning of the Act and we so find. The case was tried before me in Lima, Ohio, on October 28, 1968. FINDINGS AND CONCLUSIONS 1. THE ALLEGED UNFAIR LABOR PRACTICES Sharp was employed by Respondent as a truckdriver and yardman from March to July 29, 1968, when he was discharged by Darling, Respondent's assistant manager. Darling had hired Sharp initially. About a month or more after he commenced work for Respondent, Sharp, a man whom I judge to be in his early twenties, threw a rock over a boxcar on Respondent's premises.' This was evidently during working hours and no particular motive for the act appears in the record. It is the type of conduct that is commonly referred to as horseplay . In any event, the rock bounced off one of Respondent's fork lifts that was on the other side of the boxcar . No one was hit but the men on the fork lift complained to Darling about the incident. Darling thereupon discharged Sharp . The next day Sharp telephoned Darling and asked to be reemployed. Darling thereupon rehired Sharp but admonished him that he did not want any more trouble from Sharp "but in the yard." Darling testified that Respondent was short of help and needed employees. 'Sharp places the incident in about April. Darling places it in May or June. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McClintock, a counter salesman at Respondent 's place of business,' testified that over a period of time there had been complaints from customers about deliveries that had been made by Sharp. According to McClintock, a customer, in ordering material, sometimes would tell the salesmen, such as McClintock, that the customer wanted the material placed in the garage or some other location. This information would be relayed to the driver. In Sharp's case, McClintock states that there were times when the customers would later complain that the driver had not placed the material in the garage or other location that the customer had specified at the time the material had been ordered . About 2 weeks before July 29, McClintock states that a "lady" came in crying and said that Respondent's driver, in delivering material, had backed into the side of her garage and had broken three or four shingles thereon . Respondent thereafter replaced the shingles and repaired the damage . Although not entirely clear, we construe McClintock's testimony, in the context of his testifying about Sharp, as testimony that Sharp was the driver involved in the shingles incident. Sharp denies that he ever damaged any siding material on any customer's property. There is no claim or evidence that Darling, McClintock, or anyone else ever spoke to Sharp about damaging shingles or siding on a customer's property or that he was warned about the matter. Without otherwise indicating when the incident occurred, McClintock states that on a "Saturday morning," Sharp was delivering a wrought iron chair set. McClintock advised Sharp to be careful because "those [the wrought iron] will break easily." After Sharp returned from the delivery, the customer telephoned and reported that one of the wrought iron legs had broken off. Respondent replaced the broken leg. Sharp , in substance, admits the wrought iron leg affair . He states that the problem was that he had so much other material in the truck that he did not have enough room to insure against injury to the wrought iron . There is no evidence as to what, if anything, was said to Sharp by Respondent as a result of this incident, or when, precisely, it occurred. Aside from the incident on July 29 when he discharged Sharp, Darling's testimony as to Sharp was that there were "a lot" of complaints about Sharp as testified to by McClintock . Other than as indicated in the foregoing reference to McClintock's testimony, the only specific incident described by Darling was the occasion, heretofore described, of Sharp's throwing a rock over the boxcar. The situation up to the time of Sharp 's discharge on July 29, as revealed by the evidence , is that Sharp had his faults as an employee but, in our opinion, the credible evidence does not show that Darling planned to discharge him. Nor, in our opinion , were the faults of Sharp in his work of such a degree or nature that Respondent had regarded them as intolerable . Of course Respondent could have discharged Sharp for any reason or no reason during the period of his employment except for the employees' legitimate union activity. But either because, as Darling testified, Respondent needed help, or because the general calibre of employees currently available to Respondent was less than the optimum, Sharp, with his faults, was retained . Without doubt an employer is entitled to expect from his employees due care in handling material but it is doubtful if Sharp was the only driver who was less than careful. Respondent offered no evidence that Sharp was its worst driver or that no other driver's conduct had 'There were evidently about four or five men who were similarly engaged at the counter. resulted in complaints regarding deliveries or the condition of delivered material . The only warning given to Sharp was about his "horseplay," after the rock tossing incident in Respondent's yard . After discharging Sharp, Darling rehired him the next day but warned him, according to Darling, that "I don't want any more trouble out in the yard." The only other incident, about which Darling spoke to Sharp, occurred several weeks later. Darling, according to Sharp, "gave me heck" about a truckload that was not fastened properly . Sharp himself is the only witness who mentioned this incident and this fact is in some degree an indication of testimonial candor. Based upon observation and careful consideration of the record as a whole, I do not credit McClintock 's testimony that "a couple of weeks" before July 29, Darling had discussed with McClintock that "due to the fact that some other calls and complaints had come in that he [Darling] was going to discharge him [Sharp]." Darling, who, like McClintock, was a witness called by Respondent , testified after McClintock but says nothing about discussing with McClintock any discharge of Sharp .' Nor does Darling, who made the decision to discharge Sharp on July 29 and who did discharge him on that date , say that he had planned or contemplated Sharp's discharge prior to July 29. These facts are the more striking since Darling, in his appearance as a witness was, quite understandably, seeking to defend the legitimacy of his action in discharging Sharp. Surely, a prior discussion by Darling, two weeks before July 29, in which he said that he was going to discharge Sharp , would have been mentioned by Sharp if it was the fact. Moreover, there are other reasons, described at a later point in this decision why the Examiner regards McClintock as less than a reliable witness but rather as a witness tending to present an uneven picture of the circumstances relating to Sharp's discharge. Around July 22, 1968 , Sharp spoke to some of his fellow employees about whether they would be interested in starting a union at Respondent 's plant. As a result of this survey, Sharp went to the Union and secured some authorization cards. In a period of 3 or 4 days he passed out 11 cards to the employees and secured signatures thereon from 11 of the men.4 Sharp had passed out the cards in Respondent's coffee room at the plant before work and also at the homes of employees . Sharp then turned over the signed cards to the Union. Early in the morning on July 29, Sharp had received a work order to deliver cdrtain lumber and plywood to a construction site where a supermarket was being built. Sharp loaded the truck with the material and proceeded to drive to the site. As he was leaving the yard , the route led across some railroad tracks . As a combined result of driving over the tracks and, according to McClintock, the fact that the "heavy load" on the truck was not fastened down as securely as it should have been by 'Sharp, the load shifted as Sharp drove over the tracks. McClintock testified that he observed the shifting of the load from where he was in the yard. He states that the top bundle of plywood on the truck "fell to the center of the truck .. . fell down in the load of lumber ." Darling also was in the yard and saw the truck as it crossed the tracks. Sharp states that as the truck crossed the tracks a portion of the load shifted slightly but without damage to the material. 'Daring was present during McClintock's testimony. Darling testified twice during the hearing . Once during Respondent's case in chief and also in surrebuttal. 'there were 13 or 14 employees who drove trucks or worked in the yard. THE LIMA LUMBER COMPANY 699 Without further incident, Sharp's truck arrived at the construction jobsite . Sharp testified that the ground was muddy in spots and that to get into the lot he had to maneuver and back up his truck twice . When the truck was into the lot, it became stuck or mired and Sharp testified that, in the course of trying to keep the truck in motion and to avoid getting stuck , some of the material fell off the truck at the construction site . Sharp then unloaded the balance of the material . He testified that the material was not damaged as far as he could see. Sharp telephoned to Respondent's yard and the call was answered by one of the counter salesmen , Siminello. In substance, Sharp reported that his truck was stuck, and one of Respondent's other trucks was sent to the jobsite to pull out Sharp's truck . This was all accomplished in a relatively short time and , according to Darling, Sharp was back at Respondent's yard between 8 and 8:30 a .m. that morning . Darling estimates the incident at the construction site as occurring at about 7 :30 or 8 a.m. Sharp testified that when he returned to Respondent's yard, Darling was waiting for him and Darling said, "Did your load shift?" Sharp said , "Yes," and Darling said "If it happens again, it will be your last one." Darling then said, "I heard there was some union talk going around and I heard you instigated it." Sharp replied , "I have just heard a little talk, that's all." Darling then said , "If you cannot stand there and tell the truth , you may as well go and punch your timecard and go home ." Sharp then punched his timecard and went home . As previously indicated , Darling's testimony, uncontradicted on the time aspect, places Sharp 's return to the yard and the discharge as between 8 and 8:30 a.m. Darling's version of the discharge is that when Sharp returned to the yard , Darling walked up to him and said, "Dan, I have had all I can take , you are fired ." Darling states that nothing was said about a union. Respondent called as a witness, the builder , Grunke, to whose jobsite Sharp had delivered the material on July 29. Grunke testified that on that date he arrived at the construction site around 10 or 10:30 a .m. He drove up in his car, did not get out of the car , but observed the lumber scattered around the site . Nothing was piled up in an orderly way but was in a scattered condition . Some of the material was splintered and some was broken and some of the sheeting "was standing on end like you would take a deck of cards and fan them ." Grunke thereupon drove immediately to Respondent's yard. He spoke to Darling with considerable indignation, complaining of the condition aforedescribed in which the lumber had been delivered . Grunke threatened to take his patronage elsewhere if the careless handling of the material on July 29 was illustrative of Respondent's type of work.' Darling, in substance , apologized for the situation and promised to, and subsequently did, replace the damaged material. Darling told Grunke on the same July 29 occasion that he had fired the man responsible. Grunke testified that the construction site in its original condition had been "very low." However, he states that about 950 cubic yards of clay fill dirt had been dumped on the site and rolled . Grunke expressed the view that the ground was thereafter solid and that he knew of no soft spots. I credit Grunke's testimony about the disarray and damaged condition of the lumber on July 29 when Grunke came to the site around 10 or 10 :30 a.m . While I do not 'July 29 was the initial business dealing between Grunke and Respondent. The account for materials on the job was a substantial one. believe that Grunke was deliberately misrepresenting what he believed was the general condition of the ground at the construction site, we are satisfied that some portion of the ground was soft or muddy and that Sharp's truck stuck in the muddy or soft soil on July 29. Aside from other factors in the record which we will refer to, it would not be unusual, in our opinion, for a heavily loaded truck, such as the record shows to be the case as to Sharp's truck on that morning, to sink or to become stuck on naturally low terrain that had been filled with clay soil. While rolling the fill dirt no doubt gave it a degree of firmness, clay soil is probably the least porous of soils and, if recently exposed to rain, clay and probably most any other filled dirt, would be prone to yield under the weight of a heavy truck. The only eyewitness to whether the truck was stuck in the mud at the site on July 29 and who testified at the hearing was Sharp.' Sharp testified credibly that the ground was muddy, that the truck became stuck and had to be pulled out by another truck of Respondent's that was sent to the site for that purpose. There is no doubt that Sharp's truck was stuck. McClintock, who was a witness called by Respondent, testified that Respondent had to send another truck to the site to pull out Sharp's truck. This witness also testified that some of the lumber that was thrown off the stuck truck had become covered with mud.' Darling, who also was not at the construction site, testified, ` . . . I am not positive but I am sure he [Sharp] backed into a hole and got stuck." Darling said that he sent another truck to the site to pull out Sharp's truck. According to Darling, on July 29, Merritt, president of Respondent, was passing, "went by" the construction site at the time Sharp became stuck. Apparently, Merritt's car was equipped with a radio telephone and Darling states that Merritt "radioed" him and said, "Virg [Virgil Darling], you have a truck down here that is stuck" and Merritt said you "had better get somebody out there to pull him out ...."' Conclusions The critical matter in this case, in our opinion, is the issue of credibility between Sharp and Darling as to what was said on July 29 when Darling discharged Sharp. Sharp states that when he returned to the yard on July 29, 'The evidence is undisputed that neither Grunke nor any of his employees was present on the morning at the time the truck arrived at the site or when it was stuck. Grunke did not arrive at the site until several hours after the truck had been extricated and had returned to Respondent's yard. When Grunke did arrive at the site he remained in his car and then drove to Respondent's yard. 'Since McClintock was not present at the construction site on July 29, whatever information he had about the muddy lumber was probably gleaned when he overheard part of the conversation between Grunke and Darling later that morning when Grunke came to the Respondent 's yard to complain. 'At another point in his testimony Darling said that although "I was not at the jobsite, I am sure it was not wet." There was an objection to this answer by the General Counsel and then Darling stated , "ft could have been a week or so, we had a lot of rain the night before that and with this being filled, sure, there is bound to be soft spots ..... Darling said that on subsequent deliveries, after Sharp's discharge, the trucks did not become stuck. As to the latter fact, it would be my opinion , that the experience of Sharp's truck, which was the first delivery made by any of Respondent's trucks to the particular site, would prompt subsequent drivers to exert great caution. If three men are walking along and the first man steps on a soft spot and sinks up to his knees in mud, the two men following him are unlikely to step in the same spot and are likely to use great care in traversing the particular area. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Darling said, "Did your load shift." When Sharp said, yes, Darling warned him that "if it happens again, it will be your last one." In other words, there was a warning that, if through inadequate loading and tying down of a load, any subsequent load because loose, Sharp would be discharged . Darling then said that he had heard there was some union talk going around and that Sharp was the instigator. Sharp, in effect, denied being the instigator, saying that "I have just heard a little talk, that' s all." Darling thereupon accused Sharp , in substance, of lying and told him to punch out and go home . Darling's version is that nothing was said about a union and that he simply told Sharp that "I", Darling "have had all I can take, you are fired." Baker, a university student who had worked as a yardman for Respondent during the summer of 1968, testified that, on July 29, he and another employee, Ely, were assembling or building pallets in Respondent's yard. Darling came over and told Baker and the other man that he, Darling, had discharged Sharp . Darling asked Baker and Ely if they had signed union cards . Baker testified that he did not give Darling a specific answer . Darling then said that if they joined the Union and the Union came in, he would reduce the work hours and the men would make less money ; also, that during slack periods, such as during the winter season, when there was not much work to perform, he would send the men home. Darling testified that he had heard Baker's testimony but that never, at any time, did he discuss the Union with Baker. Respondent's counsel then asked: Q. Did James Baker ever discuss the Union with you? A. He made the remark about the pallets. I may have made a statement saying if the Union ever gets in, we will do like other people do and this is the only thing that I ever said on that. Q. In other words, what was that? A. In other words, you read in the newspapers what these other companies are doing and this could happen to us, I do not know. the I view the foregoing testimony, Darling at first denied flatly that he ever talked to Baker on the union subject. Then, when afforded a direct opportunity to say whether or not Baker had initiated the union topic with him, Darling gave, in our opinion, a rather obscure answer. As I interpret Darling's testimony above described , Darling, in effect, admits that on July 29, as Baker testified, Baker was working on, or at least some work relating to pallets was involved , when Darling made some statements on the union topic. Even Darling's testimony does not show that Baker either initiated or said anything regarding a union . According to Darling, Baker's reference was to some work on the pallets. It was Darling who initiated the union subject , saying what Respondent would do "if the Union ever gets in." The rest of the testimony as to what Darling claims he said is again, in our opinion , vague and not convincing as an accurate account of what Darling said to Baker. In several respects Darling did not impress me as a candid and accurate witness. On the Baker incident, despite Darling's lack of candor, enough appears in Darling's own testimony that partially corroborates Baker, to wit, it is not denied , but, in substance, admitted that on July 29 Baker was doing something relating to pallets in the yard and that Darling initiated the union subject by saying what the Company would do if the Union came in. I believe that Baker was a credible witness and we credit his testimony. The materiality of Baker's testimony is that the reasonable inference therefrom is that on July 29 Darling had some awareness of union activity relating to Respondent's employees and of some possibility of a union attempting to come into the plant.' Since, immediately after mentioning that he had discharged Sharp, Darling proceeded to ask Baker and Ely if they had signed union cards and to describe steps, economically detrimental to the employees, that Respondent would initiate if a union came into the plant, there is indication of awareness of incipient union activity and indication of hostility toward union activity of employees and also some possible connection between Sharp's discharge and the matter of union activity. The latter because the Baker conversation occurred after, but on the same day as, the discharge, and because Darling referred to the discharge and made his antiunion remarks in the same context and in the same relatively brief conversation. The foregoing renders more plausible the possibility that Sharp was testifying accurately when he described the union references made by Darling when the latter discharged Sharp. Without Baker's testimony, partially admitted by Darling, the suspicion would be present that Sharp might have simply conjured up the alleged union references by Sharp at the time of the discharge, since the record is otherwise bare of evidence of any awareness by Darling of union activity among the employees, including Sharp. Before making an ultimate resolution of what occurred when Darling discharged Sharp, some additional analysis is in order. Darling testified that on July 29 he sent another employee in a truck to pull Sharp and his truck out "and to straighten up the material." As has been previously described, there is no question that Darling did send a man to pull out the truck and that this mission was carried out. It is also clear that this all occurred between about 7:30 and 8:30 a.m., no later than 8:30. Sharp had been pulled out and was back at the yard between 8 and 8:30 and was discharged around 8:30. But, in our opinion, Darling had not told the man whom he sent to pull out Sharp to also straighten up the material. Darling's reference to the need to straighten up the material that had been delivered is apparently an effort to convey the idea that since the material was scattered all over the site he instructed one of his employees to not only pull Sharp out but to also straighten up the material. The weakness in Darling's testimony is that, at the time aforedescribed, it is our opinion that Darling did not know that the material was scattered all over the site so as to require the effort of an additional man to repile the material and straighten it out. Darling did not learn of the condition of the delivered material until Grunke came to the yard to report the condition and this was at least 2 hours after the man and truck dispatched by Darling had pulled out Sharp's truck and Sharp had returned to the yard where he was discharged between 8 and 8:30 a.m. If, prior to Grunke's arrival at the yard around 10:30, Darling had sent an employee to not only pull out Sharp's truck but to also straighten out the lumber at the site, this would have been prior to 8:30. But when Grunke arrived at the site, around 10-10:30 a.m., the lumber was scattered all over the place 'The only way a union could come into the plant would be through the employees or, in other words, the union affiliation and activity of employees. THE LIMA LUMBER COMPANY 701 as described by Grunke and this is what led the latter to drive immediately to Respondent 's yard and complain about the condition in which the material had been delivered. Either the employee sent by Darling several hours earlier to pull out Sharp and to straighten out the delivered material had completely ignored Darling's direct order to straighten the material or such an order had never been given . We believe the latter to be the case. There is no indication that, when Grunke came to complain to Darling , that the latter had expressed surprise that at 10 or 10:30 Grunke had found the lumber still unstraightened or that Darling told Grunke that several hours earlier he had sent a man with express orders to not only pull out Sharp but to straighten the material. Yet these would have been normal responses if Darling's testimony is accurate . Nor is there any claim or evidence that Darling thereafter questioned or reprimanded the employee who pulled out Sharp and who allegedly had been instructed to straighten the material but, obviously, had never done so. As indicated , we do not believe that Darling instructed the man sent to pull out Sharp 's truck to also straighten out the delivered material . Darling did not know at that time or at the time he discharged Sharp that the material was scattered and broken. He learned of these facts when Grunke told him, about 2 hours after the discharge. Prior to that, and at the time of the discharge, Darling's knowledge of Sharp's July 29 delivery to Grunke's site was as follows : As Sharp left the yard on the way to the site, Darling saw the material on the truck shift, as the truck crossed the railroad tracks . There is no evidence or even suspicion expressed that any portion of the material fell off at that time or was broken on the truck . The only details as to the shift in the load are meager . Sharp states that the load shifted slightly without damage . McClintock testified that some bundles of plywood fell to the center of the truck "in the load of lumber ." Other than the fact that he saw the load shift , Darling does not describe any details. The other information that Darling had when he made the discharge , and prior to Grunke's visit, was that Sharp's truck had been stuck in the terrain at the jobsite and the truck had to be and was pulled out by another truck . We are satisfied that Darling did not know at that time that the material was scattered around the construction site in a damaged condition. Until Grunke came to the yard, Darling's information about the situation at the jobsite was based on a call from Respondent's president Merritt, who, in passing the construction site in his car, observed that one of his trucks was stuck . According to Darling , Merritt, who did not testify, simply called him on the radio telephone and said, "You have a truck down here that is stuck " and Merritt told Darling to get someone down to the site to pull out the truck . Because of "this happening and with the past" Darling states that he decided to discharge Sharp." I encountered great difficulty in seeking to believe that, because a driver of a loaded truck , delivering to an "Darling states that he made his decision "through my boss to discharge Sharp." The reference is apparently meant to be to Merritt as the "boss." A few pages later Darling was asked expressly what Merritt had said to him. The only thing testified to by Darling in response to the question was that Merritt said, "Virg, you have a truck down here that is stuck" and Merritt said, you "better get somebody out there to pull him out because he was in trouble." Darling then testified that he had no alternative except to discharge Sharp. We believe that the foregoing was the extent of the conversation and that neither Merritt nor Darling discussed the discharge of the driver. unpaved construction site, became stuck in the muddy ground, his employer would for that reason discharge him. There is no evidence that Sharp had ever become stuck before or that no other driver of Respondent's ever became stuck on a construction site. It is probably true that no driver should ever get into a position where his vehicle becomes stuck but the realities of day to day work would indicate that truck drivers do become mired at one time or another. An employer of course could discharge an employee for becoming stuck but it appears highly doubtful that Darling discharged Sharp for that reason. Equally dubious is any claim that the fact that the load shifted when Sharp crossed the tracks , as described above, was a reason for the discharge . In the circumstances of this case, it also appears doubtful that, as Darling claims, Sharp's past record, combined with the fact that he got stuck on July 29, resulted in his discharge . Sharp as an employee had his faults but as of the start of work on July 29 he was still an employee and had not been warned of any possibility of discharge if any of his past faults again appeared. And, as indicated, the matter of getting stuck on July 29 simply does not appear to be the type of situation that would normally culminate in discharge." The record lends some support to the view that Respondent's witnesses were conscious of the unconvincing nature of the asserted reasons for discharge. As we have seen , Darling's testimony would convey the impression that prior to the discharge he was aware that not only had Sharp's truck become stuck but that he was also aware of the fact that the load was scattered all over the jobsite and therefore sent a man to straighten up the strewn material as well as pull the truck out. The fact was, as the evidence shows, that it was several hours after the discharge that Darling became aware of the condition of the material. McClintock, Respondent's other witness, testified that, on July 29, when Sharp returned to Respondent's yard from the Grunke site, "he [Sharp] went on with his normal course of work . But, later on, the contractor [Grunke] came in and he was hopping mad due to the fact that material was not stacked , it was just throwed off on the ground." McClintock states that he heard Darling say to Sharp that "since they had this complaint [Grunke's complaint] on this load of material that was delivered, that he would have to fire him . . . ." McClintock continued, "And Mr. Grunke was pretty well perturbed about it and this just clinched the feeling we had insofar as his [Sharp's] employment." The foregoing effort to depict the Grunke complaint as a, or the, material factor in the discharge is wholly unconvincing and it is contrary to clear facts in the record. It reflects adversely not only on McClintock's reliability as a witness but casts doubt on Respondent's basic position . First of all, both Sharp and Darling agree that the latter discharged Sharp when he first returned from the Grunke site . Neither witness testified that, as McClintock asserts, Sharp had resumed work in Respondent's yard after returning from the Grunke job. Sharp was discharged when he walked in the door, and he "There is no claim or evidence that the truck got stuck because the load shifted or that it would not have become mired but for that fact. What evidence there is is that some plywood had fallen into the center of the truck, a fact that would scarcely be a factor in the later event of the truck becoming stuck. There is no claim or evidence that Sharp should have known that the ground was dangerously soft and that he should not have entered the construction site where he did, or that his becoming stuck could only be explained as gross negligence. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then punched his clock and left. This was around 8:30 a.m. Grunke did not come to the yard and did not see or speak to Darling until about 10 : 30. Darling admitted that this was after Sharp's discharge and that he told Grunke that he had already discharged the driver, Sharp. If McClintock's testimony, abovedescribed, is read in the light of the established facts, it is abundantly clear that his testimony is extremely inaccurate and distorted and evinces an effort to build up and overstate the factors in the discharge. In at least one other respect, described earlier in this decision, we were unimpressed by McClintock 's testimony. He was, however, Respondent's principal witness in depicting the past faults or deficiencies of Sharp as an employee. In our opinion, he was not a reasonably objective witness regarding Sharp although we believe that Sharp had his faults as an employee . The only past dereliction of Sharp described by Darling was the rock tossing incident, above, considerably before July 29. On the actual discharge of Sharp on July 29, McClintock's overextension and twisting of the facts cannot but cloud the credibility of Respondent 's motivation in the entire matter of the discharge. A careful consideration of all the evidence and the reliability or unreliability of the witnesses, either comparatively or otherwise , persuades me that Sharp's testimony, regarding what he said and what Darling said when Sharp was discharged on July 29, is credible and we so find. The situation, therefore, was that although Darling was displeased about what he knew at about 8:30 a.m. of Sharp's delivery to the construction site , Darling did not consider that the fact that Sharp's load had shifted as he crossed the tracks enroute , or the fact that the truck got stuck in the soft ground of the site and had to be pulled out, as conduct that merited outright discharge at that point. However, because Sharp had been less than an exemplary employee in the past and because of his apparent careless failure to insure the July 29 load against shifting and the trouble entailed in having to extricate the truck , Darling, in effect, said that, the next time Sharp did not tie down his load or otherwise was out of line as an employee, he would be discharged ." Thus, although Darling could have legitimately discharged Sharp at that point for the reasons described above, he did not do so but gave Sharp a warning that if Sharp transgressed again he would be discharged. If the foregoing had been the extent of the situation or even if Darling had discharged Sharp instead of disciplining him, we would perceive no violation of the law. However, Darling proceeded to, in effect, interrogate Sharp about union activity among the men and the fact that Darling had heard that Sharp was the union instigator." Sharp gave an evasive answer and avoided entirely a response as to whether or not he was the union instigator. Darling then, implying that he knew or believed that there was union activity going on and that Sharp was the instigator and that Sharp should have admitted the union situation and his own role therein , discharged Sharp. In our opinion, under the rights guaranteed under Section 7 and Section 8(axl) and (3) of the Act, Sharp was under no obligation to inform Darling regarding the existence of union activity among the employees or of his own leading role in such activity. We find the discharge to be a violation of Section 8(a)(3) and (1) of the Act. "As we have seen, Darling had asked Sharp if his load had shifted and when Sharp admitted that it had, Darling said, "If it happens again, it will be your last one." The circumstances presented in this case , however, are such that, in our opinion, a further element must be considered . Sharp's credited testimony makes it clear that, on July 29, around 8:30 a.m., when his conversation with Darling took place , Darling gave him what, in our opinion, was a legitimate warning , unrelated to union activity, that if Sharp was careless or "slipped up" again in his work performance, he would be discharged . Having been discharged very shortly after this warning, as we have above described, Sharp never, literally, performed another act as an employee. In that sense, therefore, the conditions of the warning, never actually occurred at least in the literal sense of another breach of Sharp's duties as an employee. But, in our opinion, the facts show that a substantial equivalent of what Darling had warned Sharp about did occur. About 2 hours after Darling discharged Sharp, Grunke came to Respondent's yard and reported and complained to Darling in strong terms about the fact that the lumber delivered to his site that morning by Respondent was strewn all around the site and that some or much of it was splintered and broken . Grunke threatened to take his patronage elsewhere if the conditions of the July 29 delivery were to be what he could expect from Respondent. Respondent then undertook to see that the material was properly stacked on the site and to replace the damaged pieces . For reasons heretofore described, we are satisfied that this was the first time that Darling learned of the strewn and damaged condition of the lumber delivered by Sharp. There is little doubt in our mind that if Darling had had Grunke's report prior to the discharge of Sharp , Darling would have discharged the employee because of the manner in which he had left the delivered material, coupled with the more limited facts that by themselves had prompted Darling to give Sharp a warning of discharge if even the relatively limited circumstances known to Darling at 8:30 a .m. were repeated . It is our opinion that such a discharge would not have been illegal." As indicated, Sharp's credited testimony is, in substance, that on July 29, Darling warned him that if there was one more instance of carelessness in the discharge of his duties, Sharp would be discharged. We regard Grunke's report and complaint to Darling, 2 hours after the discharge , as furnishing, an additional and "It is reasonably clear that when Darling said to Sharp , "I heard there was some union talk going around and I heard you instigated it," that he expected a responsive answer from Sharp on the foregoing. "It appears unlikely that if Darling had had Grunke's report at 8:30 a.m. he would have done anything else but discharge Sharp. The discharge on these legitimate grounds would have not only eliminated Sharp as a deficient employee but would have, from Darling's standpoint, carried the bonus of eliminating the union instigator . We therefore would regard it as improbable that Darling would have said anything about the Union to Sharp if he had discharged him in such circumstances. It was when Darling limited himself to a warning to Sharp, with the latter continuing as an employee, that Darling then went into the union matter. Perhaps he felt that the fact that he had not discharged Sharp would lead the latter to respond revealingly or favorably regarding the union situation or that Sharp, continuing as an employee, was therefore a continuing union problem requiring talking to on the union subject. As to the legal implication of some of the foregoing observations we understand the law to be that an employer, presented with a legitimate ground for discharge and who discharges an employee for that legitimate reason , is not acting illegally even though the dischargee is a union leader and even though the employer may be glad that the legitimate cause for discharge was presented . Those cases where an ostensibly legitimate reason is used as a pretext in order to discriminate against a union employee are in a different category. THE LIMA LUMBER COMPANY 703 relatively aggravated instance, of Sharp's carelessness. If Darling had had such information 2 hours earlier , it is our opinion that he would have discharged Sharp . The strewn and broken condition of the material delivered and left by Sharp was in fact a new instance of misconduct since it was not previously known by Darling . The fact that it was part of the basic delivery on July 29 for which Sharp was warned does not alter this conclusion . This is not the situation of the employer having an afterthought and conjuring up a justification for a discharge that did not exist at the time of the discharge . The consequence of further or additional misconduct by Sharp was clearly stated by Darling on July 29 as being a discharge. The statement was premised on legitimate factors in the employer-employee relationship . In our opinion, the foregoing were prior to, separate from, and not motivated by the later discharge for union activity. Within 2 hours, and as part of the legitimate res gestae of Sharp's performance as an employee, additional or further misconduct was revealed to Darling and, in our opinion, the previously announced condition for the employee's termination became operative . And, in the circumstances of this particular case, we do not believe that we would be justified in recommending Sharp's reinstatement. He was discharged illegally, as found above, on July 29 at approximately 8:30 a.m. It is our opinion that he is entitled to the pay he lost from 8:30 to 10:30 a.m., at which latter time the full extent or an additional instance of his careless work performance was revealed to Darling by Grunke's report and complaint. This additional instance in our view made Darling's prior warning of discharge operative at least to the extent of precluding reinstatement. CONCLUSIONS OF LAW As found hereinabove , Respondent is an employer engaged in commerce within the meaning of the Act and, on July 29, 1968, it interrogated employees regarding union activity and threatened and warned employees of economically detrimental steps that it would take against employees - if a union came into the plant. This conduct was in violation of Section 8(axl) of the Act. Respondent violated Section 8(a)(3) and (1) by discharging employee Sharp in disregard of the employee's rights as guaranteed by Section 7 of the Act. 1. Cease and desist from: (a) Interrogating employees regarding union activities and stating to employees that the advent of a Union would result in Respondent curtailing work or hours of employment. (b) Discriminating against any employee for his union activity. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Reimburse employee Daniel Sharp for the wages he lost from the time of his discharge to the time he would have been discharged for legitimate reasons , as described in the decision hereinabove. (b) Post at its premises copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director, Region 8, after being signed by Respondent's representatives, 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 notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event this Recommended Order be 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 be enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event this Recommended Order be 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 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action . For the reasons set forth in the decision hereinabove, we do not recommend that Respondent be ordered to reinstate the discharged employee, Sharp. Although the amount of money involved is obviously small, we see no reason to omit the requirement that Sharp be reimbursed for his wages from the time of his dischar*e at 8:30 a.m., July 29, until 10:30 a.m., July 29, when, in our opinion, Sharp would have been terminated for nondiscriminatory reasons. RECOMMENDED ORDER Based upon the findings and conclusions hereinabove, and upon the entire record , it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 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 we hereby notify our employees that: WE WILL NOT coercively question our employees regarding their union activities or state to them that if a union comes into our plant we will reduce the work or the hours of work of our employees. WE WILL NOT discriminate against any employee because of his legitimate union activities whi4h are protected by the law. WE WILL reimburse employee Daniel Sharp for the pay he lost, as described in the Trial Examiner's decision. Our employees are free to join Truck Drivers, Warehousemen and Helpers Union, Local 908, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, or any other union, or to engage in union or cgncerted activities or to refrain from union membership or the foregoing activities, 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in accordance with the provisions of the National Labor This notice must remain posted for 60 consecutive days Relations Act. from the date of posting, and must not be altered, defaced, or covered by any other material. THELBIALUMBER If employees have any question concerning this notice COMPANY or compliance with its provisions , they may communicate (Employer) directly with the Board's Regional Office, 1695 Federal Dated By Office Building, 1240 East 9th Street , Cleveland, Ohio (Representative) (Title) 44199, Telephone 216-522-3738.