Frazier, Inc.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frazier, Inc. and General Drivers and Helpers Union Local 544, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 17-CA-3010 October 30, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On June 19, 1967, the Board issued its Decision and Order in this proceeding,' finding that Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. It further found that Respondent had not engaged in certain other unfair labor practices, and dismissed the allegations of the complaint pertaining thereto. The Board' ordered Respondent to cease and desist from the unfair labor practices found, and to take certain affirmative action necessary to effectuate the purposes of the Act. On June 5, 1969, the United States Court of Appeals for the Eighth Circuit issued its decision' in which the court: (1) affirmed the Board's finding that Respondent violated Section 8(a)(1) of the Act by promising Osborne pension benefits if he would abandon his activities on behalf of the Union, (2) reversed the Board's finding that Respondent violated Section 8(a)(1) of the Act by discontinuing payments on Osborne's behalf to the health and welfare fund, and (3) found that the question whether Respondent violated Section 8(a)(3) and (4) of the Act by threatening to fire Osborne for union activities, and subsequently doing so, must be remanded to the Board with instructions to reexamine the record and determine whether, absent Respondent's "admission,"4 the General Counsel sustained his burden of proof on this issue The court further found that the Trial Examiner did not err in crediting Osborne's testimony, or in reaching conclusions from the credited testimony, and that, while he committed one material error (referred to above), it was not due to bias on his part. 1165 NLRB No 75 'Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel 'NLRB v Frazier. Inc , 411 F 2d 1161 (C A 8) 'The court found that the Trial Examiner, in a finding adopted by the Board, erroneously attributed a statement (discussed herein below) to Dean Frazier, Respondent's vice president In accord with the instructions of the court, the Board has reexamined the entire record in this case with regard to the allegation that Respondent violated Section 8(a)(3) and (4) of the Act by threatening to fire employee Osborne for his union activities, and by subsequently discharging him because of those activities, and because he testified at a Board hearing. After a careful reconsideration of the record we affirm our earlier finding. The Trial Examiner found that Respondent unlawfully discharged employee Osborne. In reaching his conclusion, the Trial Examiner relied upon statements made by Dean Frazier to Osborne (1) that due to the confusion Osborne had caused that he did not see how he could keep him on, and (2) that if the Union lost the election that Respondent could not keep him on The Trial Examiner further found that Dean Frazier told other officers of the company. "[I] told Osborne during the pre-election campaign period that because of the confusion [he] caused that [I] did not see how Frazier could keep Osborne." As the court pointed out, the record does not support a finding that Dean Frazier made any such statement to the officers of the company. To what extent the Trial Examiner relied upon this erroneous finding is not clear, but even eliminating this finding, the record nevertheless shows that statements to the same effect were made by Frazier to Osborne Osborne's testimony was credited by the Trial Examiner The Board adopted these credibility findings and the court affirmed the Board's reliance upon such evidence. Moreover, as suggested by the court, Respondent's discontinuance of Osborne's health and welfare payment, while not violative of Section 8(a)(1),s is relevant in determining the motivation for his discharge. Accordingly, based upon the foregoing evidence, we conclude that Respondent did, in fact, discharge Osborne because of his union activities and because he testified at a Board hearing, all in violation of Section 8(a)(1), (3), and (4) of the Act. Therefore, we adhere to our original Order (165 NLRB No. 75) except that, in order to conform with the court's reversal of our findings with regard to health and welfare payments, paragraph 1(b) of that Order is hereby deleted, and the following substituted: "(b) Discharging employees as a reprisal because they have given or give testimony in a National Labor Relations Board proceeding or because of their union activity " 'The Board accepts this finding as the law of the case 179 NLRB No. 73