E. F. MacDonald Stamp Co.

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. F. MacDonald Stamp Company and Local 738, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 13-CA-8622 Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 2, 1969, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. 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, brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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, and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Chicago, Illinois, on December 11, 1968, and January 6 and 7, 1969, on the complaint of General Counsel, as amended, and the answer of E. F. MacDonald Stamp Company, herein called the Respondent.' The complaint alleges violations of Sections 8(a)(3) and (1) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. 'A charge herein was filed on September 4, 1968 A complaint issued on October 23, 1968, and was amended at the outset of the hearing herein All dates herein, unless otherwise specified, are 1968 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation, doing business in the State of Illinois, having its principal office and place of business in the city of Dayton, Ohio. While it is undisputed that Respondent has places of business, warehouses, redemption stores and other facilities in 24 States other than Ohio, we are herein primarily concerned with its activities in and around Chicago, Illinois. Respondent is engaged in the sale, distribution and redemption of trading stamps and related products. Respondent' s midwest regional office is located at 201 East Ogden Avenue, in the town of Hinsdale, Du Page County, Illinois. The West Chicago District office is located in Aurora, Illinois. These are the only facilities involved in this proceeding. During the 12 months preceding the issuance of the complaint, a representative period, Respondent manufactured, sold, and distributed, at and from its Dayton, Ohio, place of business, products valued in excess of $1 million, of which products valued in excess of $500,000 were shipped to States of the United States other than the State of Ohio, and products valued in excess of $50,000 were shipped directly to Respondent's locations in the State of Illinois. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 738, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent: (a), interfered with, restrained, and coerced, its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1), by ( 1), interrogation of employees, in May by District Sales Manager Van Dyke or Bolinger;' or (2), by Vice President Sanders threatening an employee in Syracuse, New York, on May 29 , that if the midwest region became unionized, Respondnent might shut down its operation;' or (3), by Sanders, in June 1968, promising employees guaranteed territory, job security, elimination of indiscriminate terminations , and other 'The following errors in spelling of names in the record are hereby corrected Van Dyke appears incorrectly as Van Dyck and Vandick; Bernas appears incorrectly as Burnas and Burness, Jossem appears incorrectly at Joseen, Johnson, Joseem and Jossen , Seyfarth appears incorrectly as Seifert and Siefarth 'The allegations of par . 6(a) of the complaint were dismissed for lack of evidence, on motion of Respondent , at the conclusion of General Counsel's case-in-chief, insofar as those allegations assert misconduct by District Sales Manager Monaco, or misconduct by Van Dyke or Bolinger in the months of June and July 'The allegations of par 6(b), relative to interrogation by Sanders, on the 177 NLRB No. 45 E. F. MACDONALD STAMP CO. 847 benefits, or unlawfully interrogating employees ; or (4), by Bofinger creating an impression of surveillance, on June 10 or December 3, or threatening employees with loss of employment on September 15; or (b), whether the discharge of Frank Clark, on August 30, was discriminatorily motivated and an unfair labor practice in violation of Section 8(a)(3) and (I) of the Act. Respondent denies the commission of any unfair labor practices, acknowledges the discharge of Clark, but asserts it was for cause. Supervisory Personnel and Agents It is undisputed that Robert Sanders, vice president of sales, Jack N . Moore, midwest regional sales manager, Joseph S. Monaco, north Chicago district sales manager, Fred Bofinger, south Chicago district sales manager, Peter Van Dyke, west Chicago district sales manager, and J. Rogers Vien , St. Louis district sales manager, were and are, in each instance , an agent of the Respondent, and a supervisor within the meaning of Section 2(11) of the Act, at all times material herein. Background and Sequence of Events Except as noted, there is no dispute as to the background facts and sequence of events herein. The supervisory hierarchy of Respondent, to the extent we are concerned with it herein, is comprised of: Sanders, vice president of sales, who is located in Dayton, Ohio, at the principal office of Respondent; Moore is midwest regional sales manager, an area described , by him, as parts of Indiana, Iowa, and Missouri, and all of Illinois; four district sales managers, identified supra, are under the direction of Moore, each responsible for a portion of the territory described. Moore has overall supervision of sales personnel, and is responsible for the business activities of Respondent, in the midwest area. Hiring and firing of employees is customarily handled by district managers, who, nevertheless, report such activity to Moore. There are 32 territory managers, or salesmen, who work under and out of the four district offices described as: north Chicago, south Chicago; west Chicago; and St. Louis. However the number assigned to each office is obscure. The primary duties of the territory managers is the sale of trading stamps. They are paid on the basis of a base salary, have a quota, and are paid a commission on sales over set quotas. The base period is a 4-week period, and the year is divided into 13 such pay periods. Moore related that he has a safety meeting with his four district managers each Monday. In turn each district manager has a district meeting with his particular sales force, customarily each Tuesday. In addition there are normally four regional meetings of the entire regional sales force each year. The regular spring, 1968, meeting was held at a hotel northwest of Chicago, identified as Pheasant Run, in February or March. The facts with which we are herein concerned commence with the holding of a special meeting on Monday, May 13, at the Holiday Inn on Manheim Road, Chicago. While it may be inferred that all of the sales personnel working out of the three Chicago offices attended the May 13 meeting, the personnel from the St. Louis office was not present. Frank Clark, alleged discriminatee herein, related that he received a communication immediately after April 25 same date, were dismissed , at the time indicated in the preceding footnote, for lack of evidence. on a letterhead bearing the inscription "E. F. MacDonald Stamp Company New York Employee- Management Council" advising Clark, and inferentially the other midwest region territory managers, of the establishment of an employee-management council in the New York region, and suggesting the possibility of the establishment of a similar employee-management council in the midwest region.' Walter J. Bernas credibly related that, in March or April, he contacted the Union, Charging Party herein, and had a telephone conversation with Tony Stevens, whose capacity is obscure. I find it reasonable to infer that Stevens was either a business agent or an officer of the Local. It appears, from their testimony, that Bernas and Kenneth Williams, who were territory managers assigned to the south Chicago district, and Clark, who was assigned to the west Chicago district, were the three employees most active in an organizational effort. With the exception of Reynolds and Peterson, both territory managers in the west Chicago office, the three named were the only employee witnesses appearing on behalf of General Counsel. Bernas, as the result of his conversations with Stevens, obtained the aid of Clark in an effort to organize the employees in the west Chicago office. Subsequently Bernas and Stevens scheduled a union meeting of employees for the evening of Tuesday, May 14. Bernas so advised Clark during the week preceding, which commenced May 6. It is undisputed that management called what might be termed an emergency meeting for the morning of Monday, May 13, at the Holiday Inn on Manheim Road, Chicago. The term emergency is used in the sense that notice of most regular meetings were sent by mail, while notice of this particular meeting was by telephone call by the three Chicago district managers to their respective territory managers, commencing Friday, May 10, and including Sunday, May 12. Regional Manager Moore related that Respondent had suffered a loss of a portion of the A & P account, inferentially referring to Atlantic and Pacific Tea Company.' As a substitute, Respondent's executive personnel undertook sales of trading stamps to a different food chain, identified as P & C, recognizing a possible impact on Respondent's employees' earnings. According to Moore, whom I find credible, during the week preceding May 13, the executive committee of Respondent, of which Moore was a member, made a decision relative to sales to the P & C account. Respondent's officials immediately undertook meetings of its employee groups to advise them of the potential impact. Moore addressed the management personnel and employees of the three Chicago offices, relative to the mentioned changes, for a period approximating between 1 and 2 hours. It appears that Moore was then questioned, by unidentified employees, relative to the union efforts or relative to his past experience with a union. The precise nature of the questions and Moore's precise answers are obscure. However, there is no allegation that any representation, or response, by Moore, was violative of the Act. Moore identified Richard Lippert, a territory manager in the west Chicago office, as the employee who raised a question about the Union. Lippert credibly related that he had heard rumors concerning the Union, 'My ruling rejecting this particular exhibit, on the representation that it was unsigned, is vacated and the exhibit is received . There is no contention herein of a violation of the provisions of Sec 8(a)(2) relative to the establishment of the New York Council. `While Moore made reference to Kansas City, upper Michigan, Lansing, 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and since this was one of the few times employees were together he thought it might be a good chance for the men to discuss it among themselves. When Lippert raised this inquiry, directed to Moore, Moore responded, according to Lippert, that he was not in a position to answer any questions concerning the Union, that, if the employees wished to discuss the Union, management representatives would withdraw, which they did. Later, being advised that the men had completed the discussion , in the absence of management, management returned and terminated the meeting.' Interference, Restraint, and Coercion The complaint sets forth, in eight lettered subsections, conduct, on the part of four supervisors: Monaco; Van Dyke; Bofinger; and Sanders, allegedly violative of the Act, in the nature of interrogation , threats, promises and the creation of an impression of surveillance. In footnotes 3 and 4, supra, I have noted the granting of a motion, by Respondent, to dismiss portions of the allegations of paragraph 6(a) and the allegations of paragraph 6(b). The remaining allegations are considered seriatim: Interrogation by Van Dyke It is alleged that Van Dyke engaged in unlawful interrogation, in May. General Counsel, in his brief, relies on the conversation between Reynolds and Van Dyke on Sunday, May 12, and a purported conversation, in late May, between Van Dyke and Clark. Reynolds credibly related that he had a conversation with Van Dyke on Sunday, May 12, during which Van Dyke advised Reynolds of a meeting to be held the following morning. At that time, Reynolds volunteered the information that, "Frank Clark spoke to me about the Union." Van Dyke respondend, according to Reynolds, "Well, I can't be concerned over that now. I am just glad we got in touch with you for the meeting." This terminated the conversation.' On cross-examination, Clark was asked to state, by time and date, when any of Respondent's supervisors discussed his union activity with him. Clark responded Michigan, Albany, Syracuse, and Buffalo, New York , I find it unnecessary to further consider precise areas. 'To the extent the testimony of Bernas , Williams, and Clark is at variance with my findings , relative to the events of May 13 , 1 do not credit their testimony. Specifically, Bernas asserted that Moore advised the employees , relative to Moores experience with the Union, that many times people are interrogated, taken out of bed at night, their front porch bombed, and things of that type. Several employee witnesses, appeared as Respondent's witnesses, and denied these specific recitations of Bernas. I credit these denials. Bernas acknowledged that, when Lippert requested an opportunity to discuss the Union, Moore advised that management would leave, and management did leave the meeting. 'While General Counsel sought to question the circumstances under which Reynolds had modified a pretrial statement , which Reynolds, admittedly, declined to swear to, I am unable to find any substantial variance between Reynolds' testimony and his pretrial statement, as modified by him . Reynolds' pretrial statement does assert that what he advised Van Dyke of on Sunday evening was that the Union was having a meeting, however Reynolds also asserted , in the pretrial statement that Van Dyke's response was that he could not be concerned about it. Reynolds admitted that he had been discharged by Respondent on August 13 Reynolds obviously was an impartial witness and impressed me with his efforts to truthfully relate his memory. His demeanor was impressive that Van Dyke, "sometime after the May 13 meeting," outside the Aurora district office, "asked if I felt that there was any reason for us organizing, and he said that he felt that the way things were going , the benefits we got from out east, that there was no reason for the men in the Chicago area to become affiliated with the union." After acknowledging that Van Dyke made no threat, Clark asserted his response was, "I undoubtedly agreed with him at that time."' Van Dyke denied having any discussion with any employee, in May, relative to union organizational efforts, and specifically denied any such discussion with Clark. Van Dyke did not recall Reynolds mentioning the Union during the May 12 conversation. On this conflict, on the basis of demeanor, and the improbabilities of the assertion of Clark, relative to timing, I credit the denial of Van Dyke. In the absence of any evidence of interrogation by Van Dyke I will recommend dismissal of the allegations of paragraph 6(a) of the complaint, to the extent it relates to misconduct by Van Dyke in May. I find unnecessary any consideration of General Counsel's assertion, in his brief, that Van Dyke's statement constituted an implied promise of benefits. The sole allegation of the complaint involving Van Dyke, other than Clark' s discharge, is that of interrogation." Interrogation by Bofinger It is alleged that Bofinger engaged in unlawful interrogation in May. In his brief, General Counsel asserts that, in late April or early May, Bofinger engaged in conversations with employees, under his supervision, regarding union activities, and "participated" in their discussions of a letter relative to the Company Employee-Management Council." The only reference to such an incident, in the testimony of Bernas, relates to a meeting in the South Chicago District office, on May 14. According to Bernas , Bofinger asserted that "He didn't think we had anything to gain thinking about union - and the only thing we could do is save ourselves $9.50 a month or $9 and whatever it was, union dues." According to Bernas this statement was made in the presence of approximately seven territory managers. Later, Bernas acknowledged that no one in the Company interrogated him relative to his union activities. Williams asserted that on the Tuesday after receipt of the April 25 letter, inferentially April 30, the proposal of a Company Employee-Management Council was discussed at the district meeting , with Bofinger present. Asked what comment Bofinger made, Williams responded, "His only 'However, it was not until August 20 that Respondent , by letter, advised all territory managers that it had entered into a collective -bargaining agreement, with a union representing territory managers in Districts 35 and 36 in New Jersey, effective August 1 . The letter further advised that indicated improvements in working conditions , with stated exceptions, would apply company wide as basic policy. It is thus patent Van Dyke's representation , to Clark, could not have occurred "around the end of May" as asserted by General Counsel in his brief. "At the outset of the hearing, General Counsel was afforded an opportunity to, and did , amend the complaint A recess was later granted to afford Respondent an opportunity to meet these amendments. No further amendments were requested. General Counsel would now assert violations which are not alleged and were not, so far as I am concerned, litigated "The page reference on the first item is inaccurate The subject covered therein was a conversation between two employees, Bernas and Clark E. F. MACDONALD STAMP CO. 849 comments, he didn't know anything about it at all." Bofinger credibly denied discussing the Union with any employee in May. He acknowledged that, in June, Williams asked Bofinger's opinion as to what Bofinger would do about the Union . Bofinger credibly related that he advised Williams that Williams would have to make a decision for himself, "That if it were up to me, I know what I would do." To the extent there is a conflict, I credit Bofinger. General Counsel urges that Bofinger violated the Act by "participating in employee discussions of the Management Council proposal." I disagree. The sole specification of paragraph 6(a), relating to Bofinger, is interrogation. Absent any evidence of interrogation , by Bofinger, in May, I will recommend dismissal of the allegations of paragraph 6(a) of the complaint relative to Bofinger." Threats by Sanders, May 29 It is alleged that Sanders threatened employees in Syracuse, New York , that if the midwest region of Respondent became unionized , Respondent might shut down its' operation there or take other drastic measures. It is undisputed that, following the May 13 meeting, as the result of an intensive effort to develop the P & C account, Respondent, temporarily, transferred territory managers to Syracuse, at least during the period commencing about May 20 and ending about June 1. Williams, of the South Chicago office was among those so selected." Williams asserted that, about May 28 or 29, an unspecified number of the territory managers, in Syracuse, went to dinner with Vice President Sanders, about 10:30 p.m. Thereafter they returned to Sanders' room. Among those present were territory managers from New Jersey, New York and Ohio . Williams asserted that Sanders indicated a preference for a question and answer session. Williams asserted that he asked Sanders what Sanders thought "about this council thing which was kind of confusing because that was the original letter sent to us indicating that we should form a council to run the Union." According to Williams, Sanders responded that if the Chicago division went union , that Sanders did not know what the Company would do . Williams, variously, asserted that Sanders respondend "The old man-meaning the president-he didn't know what he would do, they might even close the Chicago division." The following exchange then occurred: TRIAL EXAMINER : You asked him what? WILLIAMS: What had been going on in the Union in the east. He mentioned New Jersey about to sign a contract and that there was some discussion of a council in New York area and that if Chicago went union at this time, he didn't know what the Company would do. "In numerous places in his brief, General Counsel asserts violations of the Act not alleged in the complaint . In my view , Respondent is entitled to notice of alleged violations , and to be provided an opportunity to defend after such notice . I do not consider matters "fully litigated" which are not within the allegations of the complaint. "While Williams identified Seyfarth and Russell , from Chicago, as among those transferred at the some time, and Watson and Fitzgerald, as among those transferred later, only Seyfarth and Watson were called as witnesses. Both appeared on behalf of Respondent and neither was questioned about the events in Syracuse . According to Williams, Russell attended the May 28 or 29 meeting , Seyfarth did not. TRIAL EXAMINER : He didn't know what the Company would do? WILLIAMS: No. Q. (By General Counsel) Then was he asked the question? A. There were several men talking at the same time. It was hard to filter who asked the question, but apparently somebody asked the question. RESPONDENT'S COUNSEL: I will object to what apparently somebody did. TRIAL EXAMINER: Just give us your best memory. Who asked the question, what was asked, and what the answer was. WILLIAMS: I don't remember who interjected, but he mentioned that if Chicago went union at this time, he didn't know what the Company would do, and then he mentioned they might sell the unit or close the unit, or something on that order. TRIALExAMINLR: Is that the way he expressed it: that they might? WILLIAMS: Yes. TRIALEXAMI\FR: And he didn' t know what they would do? WILLIAMS: Yes. Thereafter, on cross-examination, Williams asserted that he had preferred the council setup , inferentially referring to the April 25 letter from "E. F. MacDonald Stamp Company New York Employee-Management Council," set forth supra under Background. Williams asserted , "We didn't know too much about it because it was something that had started in New York and we wanted more information about it, and at a previous meeting with Sanders [apparently referring to the Syracuse meeting]. I discussed it with him and he said that would be up to us and we'd have to form our own, but he would go along with the idea , and that's where the council conversation comes up."" Sanders did not appear as a witness , and no reason was advanced, by Respondent, for his failure to appear. Similarly, Russell, an employee, whom Williams asserted was present, at the Syracuse meeting , did not appear as a witness. General Counsel advanced no reason for his failure to obtain corroboration , if it can be assumed it was available. Williams' demeanor, on the whole, was unimpressive. His testimony carefully considered in the light of both supporting and conflicting statements of others, appears to be both self-contradictory and replete with exaggerations.'I I find it unnecessary to determine if the remarks purportedly made by Sanders constituted a threat. Rather, I find there is no credible evidence , on the uncorroborated statements of Williams , that such statements were made. I will, for the reasons stated, recommend dismissal of the allegations of paragraph 6(c) of the complaint. "Williams then asserted knowledge that Respondent entered into a union contract in the New York -New Jersey area, and that the Company advised the midwest employees that they would obtain whatever conditions prevailed in the New York-New Jersey area. It is apparent this intelligence resulted from Respondent's letter, of August 20, to the employees, set forth supra. "As an illustration, Williams, in effect, asserts Sanders was threatening that Respondent would close, or dispose of, the midwest region, and at the same time was inferentially bargaining in good faith with the Union in New Jersey, and promising to extend the benefits of that agreement to employees not covered by it At the same time , according to Williams, Sanders was advancing the New York Employee-Management Council plan. These are patently inconsistent positions. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alleged Promises of Benefits by, and Interrogation of Employees by, Sanders, i n June It is alleged that Sanders, in June, at the Marriott Motor Hotel, Chicago, promised employees guaranteed territory, job security, elimination of indiscriminatee termination, and other benefits for the purpose of discouraging union membership . It is also alleged that, at the same time and place, Sanders interrogated employees regarding their selection of a collective-bargaining representative. Since these allegations relate to a series of conferences held by Sanders, individually with various territory managers, apparently in early June, they are considered together. According to Williams, he met with Sanders for approximately one-half hour, between 3 and 4 p.m., in late June or early July. They first discussed Syracuse, then Williams' record with the Company and sales increases. After 15 or 20 minutes, according to Williams, Sanders inquired, "Do you think this union thing is behind us." Williams asserted he responded in the negative. Sanders inquired as to the reason, and Williams asserted that he explained that there was a lot of "unhappiness in the men because of job security and other things and that's about the gist of the conversation." Asked what Sanders stated relative to job security, Williams responded, "He touched on it. We had nothing to worry about, et cetera, et cetera." Williams then asserted that he could not be more specific as to what was stated relative to job security. On cross-examination , Williams acknowledged that Sanders did not promise him any benefits at this meeting. Williams acknowledged that Sanders did not inquire as to Williams' intentions relative to activity in the Union. Bernas asserted that he had an hour and a half session with Sanders, commencing at 7:30 in the morning, in early July. According to Bernas, Sanders and he discussed what Bernas needed to help increase his earnings. Sanders also advised Bernas of the job security the employees had "and things that we are getting to day that we didn't have several months ago." Bernas said that Sanders asked him if there was any talk of union activities in the Company, and Bernas asserted that he responded in the negative. Asked if anything else was said by Sanders, Bernas responded, "That's about it."" Clark, alleged discriminatee herein, similarly had a meeting with Sanders, at the Marriott Motel, in early July. Clark related his meeting lasted 2 1/2 to 3 hours. Clark asserted that Sanders asked Clark if he had any "I rind incomprehensible and of no consequence the assertion of Bernas that they were previously receiving an allowance of 7 cents a mile for travel expense "and we have a meeting shortly after sometime in March on into February and we talked about trying to get another penny mileage and thought it was impossible to get and then , as we went along, after the New York boys got organized, why, it wasn't too long, we didn't get a penny but we got 10 cents" Asked if this was mentioned by Sanders, at the July meeting, Bernas responded "it was touched on " The term incomprehensible is used in the sense that Bernas' recitation does not square with undisputed facts, relative to the mileage allowance Respondent's letter, of August 20, provides, inter aha. " 15 Mileage allowance increased to 10 cents a mile retroactive to April 8 , 1968, the date of the change throughout the rest of the Sales Department " Since the letter is premised upon: "During negotiations it was our policy that the men represented by the Union would not be discriminated against nor would they be given more favorable terms than those we would make available to all our other Territory Managers", it follows, and I find, the mileage increase to 10 cents was effective on April 8, for the midwest region employees The fact that it was New Jersey territory managers who organized, not New York, is but one indication of the confusion in Bernas' recitation grievances that he wanted to discuss, then described the inquiry as related to "problems." Clark asserted that he responded that they had dispensed with and then renewed "the daily call sheet," identified infra, in more detail as the "MP-2" form. Clark asserted that he related sales being made in his territory on which he was not receiving commissions." According to Clark, Sanders inquired if Clark thought the salesmen would be satisfied with 50 cents a pad. Clark related he advised they would be. 1e Clark then asserted, when asked what the 50 cents a pad referred to, "Well I imagine what - this is my believe on the conversation that he would pro-rate the number of pads purchased by Clark Oil and to the number of accounts the salesman had in his territory, and pay them accordingly. This is what I gathered from our conversation." Clark acknowledged he did not service these accounts, and they obtained stamps directly from Respondent. Since Clark continued in Respondent's employment for at least 7 or 8 weeks after this alleged promise, it would appear that Clark could have described more fully any actual improvement granted, if it was granted. Clark asserted that Sanders then brought up a program the Company had in New York, described as a Management-Salesmen Council. According to Clark, Sanders asked if Clark would bring this program up at the next regional meeting . Clark asserted that Sanders indicated that Clark could deliver this to the regional meeting well enough for the men to accept it. Asked what else he discussed with Sanders, Clark responded "Merely in the conversation he asked me if there was any longer union activity in Chicago." Clark asserted he advised Sanders there was not. According to Clark, Sanders then requested Clark to advise Sanders if he heard of any more union activity. I do not credit this recitation of Clark, for reasons set forth infra, since I do not find Clark a credible witness. In so finding, I am not unmindful of the fact that Clark is the alleged discriminatee. There is not a scintilla of evidence in this record, other than this assertion of Clark, that Respondent attempted to engage in surveillance. General Counsel urges that Sanders' suggestion of "50 cents a pad" was an inducement to turn Clark against the Union. General Counsel also urges that Respondent's letter of August 20 constitutes "a violative grant of additional benefits calculated to chill further unionism in the Company."" I find no credible evidence supporting the allegations of paragraph 6(d), of the complaint, that Williams, Bernas, or Clark, were promised guaranteed territory, job security, elimination of indiscriminate termination, or other benefits for the purpose of discouraging union membership. Accordingly, I will recommend dismissal of those allegations. There can be no doubt that if Sanders inquired as to the existence of union activity, in July, as related by Bernas, Williams and Clark, such an inquiry, under the circumstances would be violative of Section 8(a)(1). Sanders', unexplained, failure to appear and refute, General Counsel asserts, permits an inference that his testimony would have been unfavorable to Respondent. "Clark explained that what were termed "house accounts" provided no commissions to salesmen "Clark asserted, as an illustration, that he had nine gas stations in his territory, operated by Clark Oil Co , each of which used 20 to 30 pads, inferentially in a 4-week period This increase alone would exceed $100 "The short answer to afterthoughts of General Counsel about violations not alleged in the complaint is set forth in fn. 10, supra E. F. MACDONALD STAMP CO. 851 While Board decisions have so held , I find such an inference unwarranted where the individual occupies a position of the importance of Sanders, vice president of sales. Finding much of the recitation of the three named employees incredible , for reasons explicated herein, recognizing that they were the sole activists for the Union in the Chicago region , being mindful of the absence of any evidence herein of union activity between the May 14 union meeting, at which only four employees appeared, and late July at the earliest, according to Clark, I find I am constrained to reject these assertions. Accordingly, for the reasons stated, I will recommend dismissal of the allegations of paragraph 6(e) of the complaint. Bofinger , Impression of Surveillance, June 10 It is alleged that, on or about June 10, Bofinger created the impression of surveillance of the union activities of Respondent's employees. Bernas asserted that, 2 or 3 weeks after the May 13 meeting, Bolinger, at a Tuesday meeting announced that the names of Bernas, Williams and Clark had been forwarded to Dayton "as the union organizers of this Company." Bernas asserted this announcement was made "in front of everybody," inferentially the seven or nine territory managers in the south Chicago district. Williams, in an effort to corroborate Bernas , asserted that, at the meeting on May 14, Bolinger mentioned that the names of Bernas, Williams and Clark had been sent to Dayton as being union instigators . He then acknowledged that it could have been a different date. Williams then asserted that there was a meeting each Tuesday and he was uncertain on which Tuesday this occurred. Later, explaining that he had gone to Syracuse [the record indicates he was in Syracuse from approximately May 20 to June 1], Williams was uncertain if this statement was made the week before or the week after his trip to Syracuse. Bofinger, who appeared as a witness for Respondent, was not queried specifically relative to this testimony of Bernas and Williams . However, Bofinger did assert that the only time he said anything with reference to unions was when Williams asked him his personal opinion regarding what he would do about the Union, as set forth supra. Bofinger also asserted he first learned of Clark's union activity, "by the grapevine," in July or August. I do not find the recitations of Bernas and Williams credible, in the light of the entire record, and the reasonable inferences to be drawn from the recitation of Bofinger, whom I find credible. Accordingly, I will recommend dismissal of the allegations of paragraph 6(f) of the complaint, as amended. Threat of Loss of Employment, by Bofinger, on or about September 15 It is alleged that on or about September 15, Bofinger threatened employees with loss of employment benefits if they joined or supported the Union. Bernas asserted that he learned of Clark' s ternination on the morning of the termination. As set forth infra, Clark was terminated on Friday, August 30, between 10 a.m. and 11 a.m. Bernas asserted that Clark called him, to advise of this event, the same morning . S0 Bernas learned of Clark's termination from Bofinger later, the same day, when Bernas, following custom , called the district office to give his weekly report. According to Bernas, at the regular district meeting on Tuesday, September 3, Bofinger advised the territory managers, in the south Chicago district, that Clark was discharged because he wasn't performing his duty, and "disinterested in company activities, and stuff like that." Bernas could not recall how the subject of this discharge came up. Bernas then asserted that the following Tuesday, September 10, Bofinger announced, at that meeting, that Clark was terminated "because of union activities," explaining that Clark had been trying to get some people to a meeting [inferentially a union meeting] and word got out. Bernas was uncertain if Bofinger said anything else relative to Clark. Shown his pretrial statement, which Bernas asserted was made in the afternoon of September 10, after the district sales meeting that morning, Bernas acknowledged that his assertion relative to Bofinger's statement that Clark was discharged for union activity was not contained in the pretrial statement." Williams, in an effort to corroborate the assertions of Bernas, asserted that he was first advised of the termination of Clark, by telephone, by Bofinger, who asserted the reason was "poor production." Williams related this was during a Friday report of his sales, to Bofinger, but was uncertain if it was on August 30, or in the early part of September. This was the first knowledge he had of Clark's termination. Williams then asserted, "At the next meeting - the next Tuesday meeting_- the subject came up as to what happened to Clark, and Mr. Bofinger mentioned that he had been discussing union with the men on the west side and someone turned him in." Williams then asserted that this next meeting had occurred on September 10. Asked if there had been any prior explanation given to him relative to Clark's termination, Williams respondend that he had received it on the "phone," and that the explanation was that Clark had been fired for lack of production. Williams then acknowledged that he had attended a district sales meeting on the Tuesday prior to September 10, and it was either on September 3 or September 10, Williams was unable to be certain as to which, that the reason for the discharge was stated by Bofinger to have been that Clark had been talking "to two new men on the west side - and that they had turned him in."22 Bofinger denied having stated that Clark was discharged for union activities, at any district meeting. On this conflict, I credit Bofinger.Z" Accordingly, I will recommend dismissal of the allegations of paragraph 6(g) of the complaint, as amended. "How Clark reached Bernas, by telephone, during work time, is not described. "I rind unimpressive Bernas' assertion that by reason of the occurrence of Labor Day, Bernas was uncertain if the first meeting after Clark's discharge occurred on September 3, and if, in fact, Bofinger's representation relative to the discharge being for union activities occurred on September 10. Prior to this asserted confusion, Bernas asserted that he had advised the Board agent of Bofinger 's statement prior to making the pretrial statement. Bernas made only one pretrial statement. "For reaons explicated infra, relative to a conversation between Van Dyke and Peterson, after the discharge of Clark, I find Williams' recitation of fact inaccurate "I rind unnecessary an evaluation of the assertions of Jack Watson and John Nevil, territory managers in the south Chicago district, that they did not hear Bofinger make such a statement. Both acknowledged being late arriving, or leaving early, at some district meetings 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bofinger, Impression of Surveillance , December 3 It is alleged that, on or about December 3, Bofinger created the impression of surveillance of the union activities of Respondent's employees. Williams asserted that on December 10, at a district sales meeting, Bofinger announced that Bernas and Williams had been subpoenaed, by NLRB, to appear in court. Williams acknowledged that he had previously so advised Bofinger'2' Bernas, who testified on December 11, set the time of Bofinger's announcement as December 3. Bernas acknowledged it was merely an announcement. Bofinger does not deny having made the announcement. General Counsel, in my view, places overemphasis on the fact that Bofinger attributed his knowledge of the subpoenas to "grapevine." Actually, he was advised by Williams . Similarly, General Counsel would attribute a jocular story which followed as a "mockery" of Board processes. The two items, the announcement and the story, followed in that order, but were otherwise unrelated . Bofinger made no secret of the fact that he tries to instill a little humor in his meetings. The Board properly considers, with a jaundiced eye, efforts to belittle or impair its processes as violative of employee rights secured by Section 7. Numerous Board cases, with court approval, stand as precedent. This Trial Examiner has had occasion to vehemently concur in appropriate circumstances. The facts herein fall far short of the elements essential to support such an inference. Accordingly, I will recommend dismissal of the allegations of paragraph 6(h) of the complaint, as amended. Concluding Findings Finding no credible evidence of probative value to support the allegations of conduct constituting independent violations of Section 8(a)(1), I will recommend dismissal of paragraph 6 of the complaint, as amended, in its entirety. The Discharge of Clark, August 30 It is undisputed that Frank Clark was employed by Respondent, commencing July 1962, and was summarily terminated, on August 30, 1968 . Clark was a territory manager in the west Chicago office, and served under Van Dyke, for approximately the last 2 years of his employment. I have found, supra, under Background, that, in March or April, Bernas solicited the assistance of Clark in an organizational effort and that Clark undertook to organize the employees in the west Chicago office. Subsequently, on May 14, a meeting was held at the Union hall, attended by four of Respondent's employees, of a total of 32 in the midwest region . It is reasonable to infer that Bernas, Williams and Clark were in attendance. According to Clark, there appears to have been no additional union activity until August. Clark first asserted that approximately 2 weeks before his discharge, then asserted it was "probably" 3 or 4 weeks before his discharge, that Bernas called him and they had lunch together and discussed the benefits they thought they could derive from the organization of a union . Clark then "I find of no consequence the recitation, by several witnesses, that the announcement was followed by a humorous, unrelated, story asserted, Bernas again contacted him by telephone , that it was probably on the Wednesday or Thursday of the week preceding his discharge that he met with Bernas. This would be August 21 or 22. Clark asserted that he had a conversation in front of the district office with Tarsitano and Lippert, territory managers, on August 20, having ascertained previously that they were not antagonistic. The same day Clark had lunch with Seyfarth, and ascertained that he was very much opposed. The following Tuesday, August 27, Clark met in a coffee shop with two new employees, Calvert and Peterson . According to Clark, Peterson and Calvert asserted they were new with the Company, did not know much about the Union, but would be willing to attend a meeting . Clark acknowledged he did not attempt to obtain authorization cards from any of those with whom he spoke. I turn next to the evidence of Respondent's knowledge of Clark' s union activities. Reynolds credibly related that after the district meeting, in Aurora, on Tuesday, May 7, he had lunch with Clark , during which Clark explained the advantages in terms of job security resulting from union representation . On Sunday, May 12, during his conversation with Van Dyke, relative to the meeting of May 13, Reynolds advised Van Dyke of the nature of his conversation with Clark. 25 It is thus patent that Respondent knew of Clark' s union activities, on May 12. Clark asserted that Van Dyke did not appear at the customary Tuesday sales meeting, on August 27, asserting that Van Dyke was at the courthouse trying to keep a trailer park from moving into Van Dyke's community. Clark also asserted that Van Dyke was not present, and there was no meeting, on August 20, inferentially because Van Dyke was on vacation . Clark also asserted there was a period of approximately 7 weeks, immediately preceding August 30, during which Clark had not talked to Van Dyke. Clark explained that he was on vacation during a portion of this period . There is thus an absence of evidence to support any finding that Respondent had knowledge of Clark's renewed union activity , in August, prior to Clark' s discharge. In so finding, I am not unmindful of the recitation of Peterson , of the advice Peterson gave Van Dyke, relative to Clark's union activity, on August 30, after the discharge , as set forth infra. I turn next to Van Dyke's explanation of the reason for Clark's discharge. Van Dyke, testifying from memory, asserted that in 1965 Clark had between 52 and 54 active associate accounts. At the end of the year accounts lost, without replacement, reduced this total to 44. In 1966 there was a net loss of 9 accounts , bringing the total down to 35. Van Dyke asserted that the downward trend continued in 1967 and by August 30, 1968, at the time of Clark's termination, there were only 26 active associate accounts.2' Van Dyke asserted that in the first six periods (24 weeks) of 1968 there were only two new accounts and in all of 1968 there were four accounts sold or rewritten. Van Dyke asserted that new account production is stressed at each district and regional meeting . Van Dyke asserted that he had numerous conversations with Clark.27 "While Van Dyke did not recall any reference to the Union, by Reynolds, in this conversation , I credit Reynolds. "I find of no importance the slight error, reflected in Van Dyke 's report to Moore, of August 30, that 30 associate accounts remained active on that date. "While I find it unnecessary to treat with it in detail , Van Dyke first asserted that Clark resisted the filing of daily MP-2 reports of customer calls made, Van Dyke later acknowledged that in the last period of employment Clark was complying with this requirement E. F. MACDONALD STAMP CO. Van Dyke outlined numerous conversations he had with Clark, the obtaining of credit, for Clark, for sales in Clark's territory, which gave Clark additional commissions, even though Clark had nothing to do with the actual sales of the accounts . I find it unnecessary to detail Van Dyke' s recitation relative to the loss of so-called associate accounts or plateglass accounts, and Clark' s inability to obtain replacements. Van Dyke credibly related that Clark's failure to react to various types of stimulation caused Van Dyke to undertake a close observation of Clark' s activities, on August 28 and 29. Van Dyke explained that, on an honor system , the normal work hours for territory managers are 8:30 a.m. to 5 p.m. On August 28, Van Dyke stationed himself, in his automobile, across the street from Clark's residence and observed that it was not until nearly 12 o'clock noon that Clark left his home. On August 29, Van Dyke again parked near Clark's home and noted that it was 10: 15 a.m. before Clark appeared and left his home.i8 Van Dyke related that on August 30, at 8:30 a.m., he advised Clark of his findings that Clark was not working.29 Clark, at Van Dyke's request, proceeded to the Aurora office, having been advised that Van Eyke intended to terminate him. According to Clark, at the time of termination, Van Dyke ascribed the reason as being "for lack of enthusiasm." Van Dyke, during the hearing, corroborated this assertion.30 General Counsel, in his brief, urges that Van Dyke's knowledge of Clark' s renewed union activity preceded, rather than followed Clark 's termination . I find no merit in this contention , for the following reasons. Harry Peterson, a territory manager in the west Chicago district, was initially employed on July 15, 1968. He met Clark, within 2 or 3 weeks thereafter. He had had a conversation with Clark, inferentially on August 27, relative to job security and union activities. This conversation extended over a period of 45 minutes, and, according to Peterson, was the only such conversation he had with Clark. Peterson called Van Dyke, on the afternoon of Friday , August 30 . Peterson asserted, "I mentioned to Mr. Van Dyke - started to mention to Mr. Van Dyke I had a discussion with Clark. Mr. Van Dyke said, 'Before you go any farther, Mr. Clark's been terminated."' Van Dyke did not indicate to Peterson any prior knowledge. Peterson's explanation of the reason for his report was, "I figured instead of maybe out doing my job I was drinking up the coffee." Peterson was "positive" that Van Dyke 's response was immediate . Peterson was a witness for General Counsel." "I find it unnecessary to detail the occurrences after Clark left his home, while Van Dyke followed him , on either day "While Clark denied the accuracy of these findings as to one day, he readily acknowledged that he had stayed home one morning to do some work around the house, which his wife had requested . Clark's explanation was that he had worked in the morning on the preceding Saturday, and, inferentially, since salesmen arc not required to work on Saturday, apparently believed that he was justified in taking compensatory time "I find it unnecessary to treat with Clark 's request for separation pay, or Van Dyke's ascribing additional reasons for the termination , in a report he made to Moore, dated the same day as the termination. Since we are not concerned with the adequacy of the justification for discharge, if it was not discriminatory, I find no purpose in setting forth, or evaluating, the recitations of Clark relative to his having won a prize, a trip to Acapulco, or commendations for his work , in the past, by management's hierarchy. "General Counsel would infer that Van Dyke had prior knowledge, from Van Dyke's reference, in his August 30 report to Moore, that Clark's "contact" with other territory managers , at coffee or lunch, extended to Peterson and Calvert, the newest men. Concluding Findings 853 The single question to be resolved is whether the credible evidence in the record would support a finding, urged by General Counsel, that the discharge of Clark was pretextuous, and that it was, in fact, discriminatorily motivated. An essential ingredient to a finding of discriminatory motivation is not only the participation in union activities by the discriminatee but knowledge thereof by Respondent. The credible testimony of Peterson, if nothing else, establishes that Clark did discuss his renewed efforts at organization , with Peterson, on August 27. Thus, it is patent that Clark was engaged in protected activities. Where the record falls short, and the void exisits, is the absence of even a scintilla of evidence of knowledge on the part of Van Dyke, or anyone else in the management hierarchy, relative to this activity.32 Van Dyke related that he discharged Driscoll, otherwise unidentified, in February 1967, and Reynolds, on August 13. The reason for Reynolds' discharge was identical, inter alia, to the reason for Clark' s discharge: i.e., "poor attitude." I find of no consequence the fact that, in addition, Van Dyke listed lack of new account production, and pad production, and other reasons, for the discharge of both Reynolds and Clark. There are numerous Board and court decisions which hold that engagement in protected activities neither increases nor decreases the obligation of an employee, so engaged, to perform his assigned duties. It has been frequently stated that an employee may be discharged for a good reason, a bad reason, or no reason at all, provided, only, that the reason may not be of a discriminatory nature. I have found it unnecessary to detail the recitation of Moore, relative to his numerous conversations with Van Dyke, in which Van Dyke indicated dissatisfaction with Clark's efforts. These conversations culminated, shortly before the discharge of Clark, in Moore's advice to Van Dyke that Clark's retention or separation was a matter for Van Dyke' s decision. The record establishes that Van Dyke, primarily, and possibly Moore, secondarily, alone were responsible for the discharge of Clark. There is not a scintilla of evidence to support an inference that Moore, at any time, engaged in conduct violative of the Act. The single instance allegedly involving Van Dyke I have found without substance. Respondent, apparently in good faith, Van Dyke credibly denied knowledge that Clark had coffee with Calvert and Peterson, prior to Clark's termination, but acknowledged he learned it thereafter. It is undisputed that the discharge of Clark was before noon. It is undisputed that Peterson's report to Van Dyke was in the afternoon. I find it reasonable to assume that Van Dyke's report to Moore was not prepared prior to Peterson's telephone call to Van Dyke . Van Dyke was unable to recall if his report to Moore was actually prepared by him on August 30, or prepared immediately thereafter and backdated . I credit the implied assertion of Van Dyke that the preparation of his report to Moore, particularly that portion treating with Peterson and Calvert, was not prepared prior to the telephone conversation, of August 30, with Peterson. "General Counsel's reliance on the recitation of Bofinger, that Bofinger had heard of Clark's union activity by the "grapevine," is misplaced. Bofinger's recitation is at most vague as to time, the source of the information, and the nature of the activity, and could as well relate to the known activity of Clark in May. It is, in my view , insufficient as a premise for a finding Respondent had knowledge of Clark's activities in August, prior to the discharge. I have rejected , supra, the assertions of Bernas and Williams that Bofinger, on approximately September 10, ascribed the reason for Clark's discharge as being Clark's union activities. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiated a contract with the Union , representing New Jersey employees , culminating in a contract which became effective August 1. At the same time, the New York employees were exploring the possibility of a management-employee council . There is no claim that Respondent acted in bad faith, or in violation of the Act, in either of these instances. Accordingly, for the reasons set forth, on the entire record as a whole, I find there is insufficient credible evidence to support a finding that Respondent was discriminatorily motivated in effectuating the discharge of Clark. I shall recommend the dismissal of the allegations of the complaint related thereto. In arriving at my findings of credibility herein, I have considered: all of the testimony; the demeanor of the witnesses; the interest of each in the outcome of the litigation, or lack of such interest; candor or lack thereof; plausibility or implausibility of the assertions of each witness, particularly when compared to opposing testimony; self-contradictions; assumptions of fact without supporting knowledge , particularly in relation to the purpose of the May 13 meeting; and admissions of adverse facts by Clark. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 738, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct constituting unfair labor practices within the meaning of Section 8(a)(1) of the Act, for the reasons set forth in the Section entitled "Interference, Restraint, and Coercion." 4. Respondent, by discharging Frank Clark, on August 30, 1968, has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety.