H. M. Parker & Son

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. M. Parker & Son and Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 31-CA-1216 November 10, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On July 29, 1969, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed cross-exceptions 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 they are free from prejudicial error. They are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified below. The Trial Examiner found that, although the circumstances gave rise to serious questions, the Respondent's October wage increase did not violate Section 8(a)(1) since the Company had announced in June that wages would be raised in October. The General Counsel excepts, arguing that the amount, manner, and timing of the increase lead to the conclusion that it was intended to affect the employees' decision on union representation, and therefore violated Section 8(a)(1). We agree. In July 1968, employees in the unit were granted an increase of 15 cents an hour following an announcement made in June, at which time it was also announced that a further increase would be forthcoming in October. After Townsend's discharge, various employees were called into the office of Richard Owen, the welding division manager, and informed that Townsend had been discharged for disloyalty to the Company and that their wages had been increased as of October 1 by approximately 31 cents an hour to equal the union rate minus an amount equal to union dues. Respondent's witnesses testified that the increase had been effected September 30 before the Company knew of any union activity. The Trial Examiner found that all necessary signatures could not have been obtained on that date and that, although Townsend was paid through October 8, his final paycheck did not reflect the increase. From this, the fact that the raise was announced in connection with Townsend's discharge for disloyalty and was specifically tied into the union rate and union dues, we conclude that the amount of the raise and the manner of its announcement were determined with an eye to the organizing campaign and that it was intended to discourage employees from engaging in union activities and thus violated Section 8(a)(1) of the Act.' We shall modify the Trial Examiner's Recommended Order accordingly 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 below, and hereby orders that the Respondent, H. M. Parker & Son, North Hollywood, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraph 1(b) of the Trial Examiner's Recommended Order and reletter the present paragraph 1(b) as 1(c): "(b) Granting wage increases to discourage employees from joining, assisting, or voting for Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization." 2. Insert the following after the first full indented paragraph of the Appendix attached to the Trial Examiner's Decision: WE WILL NOT grant wage increases to discourage employees from joining, assisting, or voting for Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. 'Exchange Parts Co. 375 U S 405 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E DAVis, Trial Examiner This case, tried at Los Angeles, California, May 20 and 21, 1969, pursuant to a charge filed October 14, 1968, and a complaint issued March 4, 1969, presents the following issues: (1) whether Respondent discharged one of its employees in contravention of Section 8(a)(1) and (3) of the Act, (2) whether Respondent during October 1968, unlawfully announced and granted wage increases to employees in a 179 NLRB No. 87 H. M. PARKER & SON bargaining unit for which the Union filed a petition; and (3) whether a certain employee designated as dock foreman and/or pumper is a supervisor within the meaning of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and General Counsel, I make the following' FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT H. M. Parker & Son, herein called Respondent, is a California corporation with its principal place of business located in North Hollywood, California, where it is engaged in the sale of automotive parts and welding supplies at wholesale. Respondent, in the course and conduct of its business, annually purchases and receives goods valued in excess of $50,000 from points located outside the State of California at its North Hollywood store or purchases and receives goods valued in excess of $50,000 at its North Hollywood location from suppliers located in California who receive said goods from outside the State of California. Respondent in its answer admitted and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Teamsters Automotive Workers Local 495, 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 UNFAIR LABOR PRACTICES A The Status of Thomas A Fratus Initially Respondent admitted that Thomas A Fratus was, as the General Counsel alleged in the complaint, a supervisor within the meaning of Section 2(11) of the Act. At the outset of the hearing, Respondent was permitted to amend its answer to deny the supervisory status of Fratus. Contrary to Respondent's contention, I find that Fratus, at all times material herein, was a supervisor within the meaning of the Act The evidence shows that Fratus had authority to responsibly direct five truckdrivers employed at Respondent's North Hollywood operation and that he exercised independent judgment in the use of such authority. While Fratus' wages, hours, and general benefits were similar to those of his subordinates, it is plain that he was regarded as their "boss," had authority to direct the quantity and manner in which they loaded their trucks, directed the order of priorities of delivery, directed removal of material from one truck to another, and did discipline the truckdrivers.' The fact that he did not have the authority to hire, fire and give recommendations for changes in wages does not require a different finding as the criteria for the determination of supervisory status are interpreted in the alternative and not in the conjunctive. Fratus in his testimony agreed that in directing the running of the routes of the truckdrivers, including the loading and priority of deliveries, he used independent judgment. Richard L. Owen' and Fratus testified to an incident occurring about 4 months prior to the discharge of truckdriver Richard B. Townsend in 541 which Townsend questioned Fratus' authority At that time Owen in unmistakable terms told Townsend that Fratus had the authority to tell Townsend how Townsend's route should be run ' Owen further testified that Fratus could instruct drivers how much of a load to carry and that Fratus used independent judgment in making this determination, that only in special cases was it necessary for Fratus to consult Owen or Woodmansee, the North Hollywood store manager Owen also testified that Fratus had authority to order the men to shuffle their load from one truck to another As Respondent's business required a constant but fluctuating flow of supplies to numerous customers and to several other of Respondent's stores, it is clear that dock foreman and truck supervisor, Fratus, was the focal point of authority over the truckdrivers' deliveries and proper loading Such authority obviously entailed responsible direction and use of independent judgment within the meaning of the Act I so find., B Preliminary Findings Townsend was employed by Respondent from May 1964 to the evening of his discharge on October 8, 1968.' For the last 3 years of his employment, Townsend was a truckdriver assigned to the West Valley route This route admittedly was the most difficult route and required loading the truck in the morning and returning in the evening.' Townsend's truck serviced the San Fernando Valley 3 days per week and 2 days per week included Castaic and Newhall. Respondent's main store, the North Hollywood store, was the headquarters of the North Hollywood Welding Division It was from this location that Respondent's customers and other stores were serviced by the truckdrivers. Townsend's route included customers in the areas mentioned above as well as Respondent's stores in Canuga Park, Wheeling, Lancaster, Van Nuys, San Fernando, and Culver City From the evidence, I find that Respondent employs sales or field representatives who solicit customers for the Welding Division. These sales representatives also contact Respondent's stores as some customers deal directly with the stores in their vicinity. The chief products handled by the truckdrivers consist of various gases, stored in tanks called cylinders weighing from 90 pounds to 180 pounds The gases handled are oxygen, compressed air, nitrogen, hydrogen, helium, argon and mixtures of various gases, however, oxygen approximates 35 percent of the cylinders delivered on Townsend's route which included construction sites, machine shops and a hospital. It is plain from the evidence that the demand on Townsend's route fluctuated from day to day in significant amounts and in substantial amounts in case of an emergency, such as a breakdown of machinery at a construction site or excessive demand by a hospital on the route Although Respondent's stores also maintained a stock of limited supplies, it is apparent that 'Although the discipline consisted of "bawling" out the men, often in profanity , nevertheless, it is clear, that this was a form of discipline which the truckdrivers understood as emanating from one authorized to discipline them 'Respondent's welding division manager, the transcript refers to Owen at various times as "Owens " 'Townsend credibly testified that thereafter he complied 'Sweeney & Co, Inc, 176 NLRB No 27 'Hereinafter all dates will refer to the year 1968 unless otherwise specified 'Other trucks could and did return the same day to replenish supplies or meet emergency needs 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at times the demands on the stores by customers depleted their supplies to the point where they could not supply their customers The Newhall store, much mentioned in the testimony, seems to be a prime example In this regard, it is rather significant that after Townsend's discharge, the Newhall store raised its customary reserve stock from 18 cylinders to 30 and Townsend's successor on the route called at the Newhall store on different days while the hospital was no longer a customer As a result of the above described fluctuation and varying demands certain customers and particularly the Newhall store complained on occasion that they did not receive sufficient cylinders to meet their needs. Townsend admitted that as he progressed on his route excessive demands on a particular day by one customer could and did lead to a failure to fully supply later customers and sometimes the Newhall store. In case of a genuine emergency the North Hollywood store maintained a small truck which could be dispatched to a customer or store with additional cylinders and this was done on several occasions. Respondent's witnesses attempted to minimize the fluctuating demands by testimony which indicated that failure to fully meet the demands of customers and the Newhall store by Townsend was due to Townsend's failure to take sufficient supplies aboard his truck. I do not credit this testimony for reasons discussed infra C. Townsend's Discharge The evidence shows that the truckdrivers during 1968 at various times made remarks while at the dock at the North Hollywood location about joining a union At times the remarks were made in a jocular vein but at other times were made seriously. Fratus overheard these remarks and it is clear from the evidence that management, including Owen, was well aware of such talk Sometime in August, employee discussions reached a serious stage and Townsend volunteered to contact a union About September 15, Townsend met Lee, a representative of the Union, and set up a meeting for Thursday, October 3 for the employees The meeting was to be held at Townsend's home and Townsend spread the word to all the employees ' The night before the scheduled meeting Townsend invited Fratus explaining that he did not know whether Fratus could be considered part of management. Eight employees including Fratus met with Lee at Townsend's home on October 3 and after listening to Lee describe the benefits of union organization, executed union authorization cards.8 On September 24, Townsend applied for and received a loan of $400 from the credit union operated by Respondent's employees Elmo J. Woodmansee, Respondent's manager at the North Hollywood warehouse, an admitted supervisor, was president of the credit union. Woodmansee received the application for the loan from Townsend and signed as a witness to the fact that Townsend received the loan The loan was approved by the credit committee which included Thomas Gardner, Respondent's comptroller, Will Jensen, manager of Respondent's Burbank store, and Charles Mensloff, Respondent's welding division purchasing agent. Woodmansee testified that the loan was to be repaid by deductions from salary According to Woodmansee's testimony, he was informed by Owen the latter part of August that Townsend was to be discharged in the near future and Woodmansee did not inform any members of the credit committee of this fact nor commented to the credit committee for or against the loan. Accordingly, the loan was granted in routine fashion. On October 8, when Townsend returned to headquarters after completing his route, Woodmansee called him into an office and told Townsend that he was discharged. According to Townsend, Woodmansee said that he expected the employees to be loyal and when Townsend had "gone around making complaints and derogatory remarks to customers and other employees." Townsend then asked Woodmansee to level with him and give him the real reason for his discharge, asking why was he letting him go if it was not for union activities Townsend further testified, "Then, he got a blank look and he acted like he didn't know what I was talking about " Woodmansee then gave Townsend a payslip, told him to make it out, saying he would have to let him go. Townsend made out the payslip and added, at Woodmansee's instructions, 4 hours' overtime. Townsend testified that this was the first time he had been paid for overtime since his employment by Respondent. On the morning of October 9, Townsend telephoned Woodmansee and told him that he would call in person for his final check and that he wanted a termination slip to show the Department of Unemployment. When Townsend arrived and was handed his check, he asked Woodmansee for his termination slip. Woodmansee replied that Owen said just to give the reason. Townsend asked what reason should he give. Woodmansee did not reply but gestured with his hand and Townsend asked, "being a disloyal employee?" Townsend then left. From the testimony adduced it seems clear that Respondent's truckdrivers were paid every 2 weeks, that Townsend was paid through October 8 for the pay period commencing September 29 and ending October 12. Woodmansee's testimonial account of Townsend's discharge was in substantial agreement with regard to the basic facts testified to by Townsend However, Woodmansee added that when he called Townsend in to one of the offices, he told Townsend that he had to do something that he didn't like and then informed Townsend that his services were no longer needed. Townsend said "that figures." Woodmansee asked what he meant and Townsend replied that he had contacted a union representative and had a meeting at his house and that he was told he might be discharged for that reason. Woodmansee testified it was a shock to him, that he did not know about Townsend's union activity and told Townsend he was being discharged for, "his attitude with customers, and that we felt he was a disloyal employee, that he had talked against our company to customers and to other employees of the company, and that he had not been carrying out the instructions that he had been given." Woodmansee further testified that he was told that it was against company policy to give Townsend a copy of his termination notice; that he got his information about Townsend's disloyalty from Owen and that he himself knew no specific disparaging remarks to customers that would indicate Townsend's disloyalty to the company. Reading from a ,transcript of the hearing before the State Unemployment Department,' the General Counsel asked Woodmansee a series of questions relating to Woodmansee's testimony at that hearing Woodmansee 'The union organization contemplated was to consist of truckdrivers and countermen in Respondent's Welding Division consisting of approximately 18 employees 'Fratus was among the signatories 'The official nature of the transcript was not established and therefore not admitted in evidence H. M. PARKER & SON 543 denied that he testified at that hearing that he regarded Fratus as supervisor but, rather inconsistently, stated that he could have testified that Townsend wouldn't follow Fratus' directions With regard to the events leading to Townsend's discharge, Woodmansee testified that he became manager of the Respondent's North Hollywood welding warehouse on September 1, that he was transferred from the Culver City store where he was branch manager, that he had a conversation with Owen prior to his transfer and that Owen informed him that they were having problems with Townsend and that as soon as Woodmansee got squared away in his new position, Townsend would be replaced, that after he assumed his new position he had one complaint about September 15 from Clark, the manager of the Newhall store that Townsend did not have enough cylinders on his truck to take care of customers in the area Woodmansee testified that later on the same day he talked with Townsend and told Townsend that he had checked on the dock and from the information he had received there were enough cylinders on the dock and Townsend should have taken more.'° Woodmansee stated that on this occasion it was necessary to send out the small truck on a special trip to the Newhall store with additional cylinders." Woodmansee also described a meeting between Owen, Mitch and himself which occurred on October 7. According to Woodmansee's testimony, the meeting was called at Mitch's request because Mitch thought that Townsend should be dismissed immediately. Mitch, at the meeting, said Townsend's attitude toward customers serviced by Mitch was causing him problems and that it came down to a question of Townsend or himself Questioned whether Mitch made any specific complaints, Woodmansee stated that Mitch's statements did not recite any specific instances of Townsend's bad attitude but apparently were based on prior conversations with Owen 12 After Mitch said that if Townsend wasn't discharged, he himself would leave, Owen assured Mitch that something would be done Mitch thereupon left and Woodmansee told Owen that "if it was the feeling of Mr Mitch and the rest of the people involved such as Mr Clark and other customers, Mr. Fratus, that I felt that we should fire the man now." Owen replied that Woodmansee was right and gave orders to discharge Townsend and replace him with Lawrence McDonald, a warehouseman Woodmansee denied that at the meeting between Owen, Mitch, and himself there was any discussion of Townsend's union membership or activity It is clear from the Woodmansee's account, as recited above, and specifically admitted by him that his suggestion that Townsend be discharged immediately was based on information he received from Owen and Mitch, rather than any personal knowledge of Townsend's deficiencies The one occasion when he was critical of Townsend because of Townsend's alleged failure to load sufficient cylinders, hardly motivated Woodmansee to suggest Townsend's discharge as on that occasion Woodmansee merely called Townsend's attention to the fact a special trip had to be made and Townsend said it 1'Fratus testified that if the Newhall store did not call in their order, Townsend was not obliged to take extra cylinders "Woodmansee failed to ascertain whether Fratus had cleared Townsend's load or whether the Newhall store failed to call in an order 111 conclude from this remark and from Mitch 's later testimony that Woodmansee was not present at all times "The linking up events regardless of when they occurred is a recurring characteristic of the testimony by Owen and Mitch The blurring of specific dates and events by effusive testimony as a substitute for specificity would not occur again Apparently it did not up to the time of his discharge Under these circumstances, it is necessary to examine the testimony of Owen and Mitch concerning the reasons for Townsend's discharge Owen testified that he made the decision to terminate Townsend sometime in August but "the thing that finally brought it to a head was when I got the call from Mr Mitch " He then testified that Mitch called 3 or 4 days before Townsend's discharge and a meeting was then held between Owen, Mitch and Woodmansee. As Woodmansee testified the meeting was held on October 7 and Townsend was discharged on October 8, the call from Mitch and the meeting hardly could have been "the thing that finally brought it to a head," which was Owen's initial reply to the question what caused Owen in August to make a decision to discharge Townsend " Owen then stated that during the meeting between Mitch, Woodmansee and himself, Mitch said that "he had talked to Townsend and heard that the rumor going among the employees that Tommy was back bragging that he was getting a better job and that he was telling the employees this, and that he had this employment application on his person "" Mitch also said he felt that Townsend's attitude was bad for customer and employment relations and that something should be done immediately. After being prompted by Respondent's counsel with the question, "Did he [Mitch] say anything about his own status9" Owen replied, "Well, he was pretty mad when he called. He said it was either him or me "1" Owen thereupon told Mitch that he was going to make some changes When Owen was asked again to explain what "accumulation of things" caused him to decide in August to discharge Townsend, he testified that about a year ago16 he called Townsend into his office and told him that the customer was always right, that he couldn't talk back to them or make decisions for customers, that if the customer wanted him to pick cylinders off the ground that it was his job and not the customers " Owen then testified that Fratus did not recommend Townsend's discharge thus contradicting Woodmansee's testimony which implied that Fratus had so recommended. Returning again to the history of complaints against Townsend, Owen testified that Mitch on several occasions had recommended Townsend's discharge. The first time was about 1-1/2 years ago when Mitch indicated to him that customers were complaining of Townsend's attitude and to get him off the truck at once 19 About 6 months later, Owen's account went on, Mitch again complained and Owen asked Mitch "at that time specifically what the problems were, was it the same as they were before," and Mitch said, "yes", that Mitch had started talking about short delivery of cylinders to customers on the hill and also to the Newhall store." At that time, Owen testified, he did not get around to telling Mitch whether he was is not conducive to credibility "I note Woodmansee made no mention of this in his testimony "Woodmansee testified that this statement was made at the meeting between Owen, Mitch and himself Owen , here, testifies that Mitch made the statement when he "called " "Townsend testified that the incident occurred about 1-1 /2 years ago "Here, Owen, without describing the incident , states what he told Townsend The particular incident, however, is later elaborated upon by other testimony Mitch at one time placed it as occurring as recently as June "This was the occasion upon which as recited above Owen told Townsend the customer is always right "Such testimony is so vague that no conclusions or inferences can be drawn 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to let Townsend go. Owen then strangely testified as follows Q When was the next time Mr Mitch made that recommendation to you.20 A Maybe a couple of times that he asked me how soon I was going to do it. I don't recall that, but the last time was when he was circulating the fact that he was going to leave the company to the other employees 21 Owen testified that no specific incident led to his August decision to terminate Townsend but it was an "accumulation of other things" and that he didn't let Townsend go at that time because they were in the middle of vacation. Asked by Respondent's counsel if he recalled any conversations with Townsend, Owen recalled that in July or August he spoke to Townsend about a new call22 at a hospital at Sylmar, that the Newhall store had called and said that he "had come up there again short with cylinders, and I checked and he was still taking 20 to 25 cylinders to a hospital and then going up to Newhall short and I told Mr. Fratus before through my instructions that when he had a heavy load for the hospital that we would take it on a special run rather than put it on his truck "23 Owen testified he received complaints from Fratus concerning Townsend on two or three occasions but that none occurred after the incident when Owen told Townsend he was to follow Fratus' directions 21 Owen also testified that the Newhall store complained of a shortage in cylinders about the first of September and that he told Clark at that time that he was going to let Townsend go.25 On cross-examination of Owen the following interchange occurred Q (By Mr. Mendonsa) Mr. Owen, you testified that you made your decision to terminate Townsend's employment in August, is that correct? August, 1968? A You mean as a definite time? Q Well, did you make your decision to terminate him at that time? A. In my mind, yes Q When in August was that9 A Possibly the middle of August. Q Did anything in particular happen in August to which you would attribute your decision9 A. Just an accumulation of things that had been happening which I have discussed before Q What were those things specifically? "To discharge Townsend "Here Owen testified that Mitch continually asked about Townsend's discharge but then denied that he had any memory of such occasions "It is my understanding that this meant a new customer "The emphasis under "again" and "still" has been supplied to indicate Owen's continual attempt to add greater significance to the testimonial account which insinuates continued derelictions However, here, it is rather significant that Owen testified that the instructions were given to Fratus and as Fratus checked loads and directed the loading before the truck left, Townsend could hardly be faulted Moreover, another inconsistency appears in that Woodmansee complained about a special trip by the light truck while Owen , here encouraged the employment of special trips "I place this incident as occurring about 4 months before Townsend's discharge "Owen at this point ignores his previous testimony that at this time Townsend was following Fratus ' orders Clark's testimony contradicts Owen in that Clark testified Owen did not discuss Townsend 's discharge with him prior to Townsend's discharge and that he first learned of the discharge after it occurred A. His relationship with other employees regarding the company Q Were there specific instances of this relationship you talked about? A. Not really relationships if you want to use that word Just the rumors coming back to me that he had been talking about his position with the company and that he was looking for another job and he was not satisfied with the company. Q How did the rumors come to you9 A Through the field salesmen and from the store in Newhall. Q You say rumors about his going to leave the company When did this company - excuse me When did this come to your attention9 A Just before he left, a couple of days before he left. Q So this didn't really influence your decision in August? A That part of it, no Q What other criteria did you use in August9 TRIAL EXAMINER' He is talking about August The question was What led to your decision in August? I want you to be specific about that. You said an accumulation of things. Now, what were the things? I want to know. THE WITNESS The things that happened in these last 18 months Q (By Mr. Mendonsa) What were they, specifically9 A Specifically, he was not loading his truck properly for the Newhall store His discourtesy to customers and his general attitude. Q. What do you mean by general attitude? A. His general attitude towards the company. Q In what respect9 A. In his relationship with our customers Q Then actually you are giving me only two reasons, his not loading the truck properly and his discourtesy to customers A And not fulfilling his duties Q What duties? A His loading of the truck properly Q They are in the record. These are the two reasons that led to your decision in August9 A The complaints from the salesmen and from the branch store, about the other customers and confrontations he had had with the customers on that route. Q But the complaint still involved loading his truck and discourtesy to customers9 A. Yes TRIAL EXAMINER. Was there anything else you wanted to know? THE WITNESS. Well, the accident.26 I believe the foregoing excerpt from the transcript fully demonstrates that Owen's entire testimony is circumspect His vague, evasive and inconsistent testimony attempts to substitute generalities innuendo, rumor, and conclusions for facts His demeanor, my appraisal of his testimony and my conclusions as to the true state of affairs, leads me to reject Owen's testimony in crucial aspects. I do not credit Owen's assertion that he had made his mind up on August 15 to discharge Owen. "The accident is discussed below H. M. PARKER & SON Harold Rex Mitch, a field representative employed by Respondent, testified that his duties included calls on customers and stores covering parts of Pacoima, San Fernando, Sylmar, Newhall, Saugus, Castaic and Antelope Valley, that Townsend serviced the area, that he received complaints from customers because insufficient cylinders were delivered to them; saying in this regard, "It has happened on several occasions. It was worse during the month of August and September 1968 " Mitch stated that two of the complaints during August and September were from Green Construction Company, complaining that when Townsend arrived at its site he didn't have enough cylinders to meet its needs; that one complaint from Delaware B M. concerned delivery of insufficient cylinders and another complaint from Delaware B M. concerned Townsend's attitude Initially, Mitch fixed the date of the latter complaint in July 1968 but then changed it to early in 1968 and that the complaint came from Ted Prescott, that he had a discussion with Owen in June 1968 regarding the termination of Townsend and then recalled a similar conversation with Owen about 18 months before Townsend was discharged Mitch then went on to testify that in 1967 he just registered a complaint about Townsend while in June 1968 he told Owen as a result of Prescott's complaint that it was very necessary to change drivers "to get Townsend away from our customers " On the latter occasion, Owen told Mitch that he didn't want to replace Townsend immediately because of summer vacation. Mitch then went on to state that he had one other discussion with Owen the day before Townsend was discharged, that he thought Woodmansee was present; that he complained to Owen concerning Townsend's attitude and that Townsend had bragged to him that he had in his possession an application for employment from Abco, a competitor; that he knew he had shown it to several other employees of the company both at Respondent's San Fernando and Newhall stores and that Mitch thought it was time to get rid of Townsend, that Owen replied the steps necessary to terminate Townsend would be taken. On cross-examination, Mitch stated that he received a complaint from Delaware B. M. about 2 years ago that "our truck driver [Townsend] was instructing their carpenter," then Mitch added, "but actually I'd have to say in all honesty that it was the misread happening by their job supervisor" The job supervisor appears to have been Prescott. Mitch then went on to testify that Prescott did not make the complaint to him that it was Bill Quick, Delaware B M 's purchasing agent, who told him about the incident; that Quick said that Prescott had ordered Townsend to get the cylinders off the job and not to bring back any more, that Quick said that he had talked to Prescott about it and for Mitch to leave it alone and it would take care of itself; that both Quick and Mitch knew that Prescott was short tempered and that Townsend in fact had also told Mitch about the incident Z1 "This incident, by virtue of Mitch's own testimony , hardly measures up as the subject of a complaint by Delaware B M Quick, apparently Prescott 's superior told Mitch, "just leave it alone and it would take care of itself " Moreover, Mitch quoted Prescott as complaining to him with the use of some profanity and then said that he learned of the incident from Quick and Townsend Under these circumstances the whole incident, so remote from the discharge seems to be completely irrelevant and tends to demonstrate that Mitch was attempting to dredge up every incident that might put Townsend in a bad light Even Mitch realized how unfair he was in reciting this incident when he testified, "but actually I'd have to say in all honesty that it was the misread happening by their supervisor" 545 On the occasion when Delaware B M failed to receive enough cylinders, Mitch testified he checked back on the load sheets for that day and that Townsend had taken out 40 cylinders of oxygen when he should have taken 60 The load sheet was not introduced in evidence and Mitch stated he did not know where it was Asked if there were any other complaints from Delaware B. M , Mitch replied, "nothing more than usual I would say " The Trial Examiner then asked, "What does that mean9 Are you insinuating that there were others that you don't want to mention?" Mitch replied that he was not trying to insinuate that but then went on to mention that some of the Delaware B. M. welders complained in July or August that Townsend had hollered at them because empty cylinders were spread around the area rather than gathered in one place for him to pick up On further examination, Mitch admitted that he also would complain if he had to pick up cylinders that were scattered around 28 Mitch concluded his testimony by reciting an incident" which he thought a customer, Dixon-Arundel, was lost because of Townsend I conclude from the testimony with regard to this incident that Respondent lost the customer because of failure to meet another competitor's bid and that Townsend was blameless. Mitch also testified that "over a period of time" possibly a half dozen times, the manager of Respondent's Newhall store complained that an insufficient number of cylinders were delivered to him; that since Townsend's discharge there have been no such complaints and that "possibly" the Newhall store had increased its stock since Townsend's discharge 70 As indicated above, I find Mitch a witness unworthy of credit, not only did I receive an unfavorable impression by his demeanor but the record demonstrates that Mitch was purposefully vague, contradictory and prone to exaggerate, and attempted to convey the impression that on all occasions when customers or stores received insufficient supplies the fault was attributable to Townsend. William L. Clark, manager of Respondent's Newhall store, testified that he knew nothing about Townsend's union activity prior to his discharge; that during the period of 2 months, August and September, Townsend's truck "was not loaded heavily enough when he got to his last stops to leave sufficient cylinders to cover them," and at time there was not any cylinders at all so in return I had to call our main welding division and request more cylinders, and I had to make a special trip to these customers to supply them with cylinders", that four or five of such complaints were received and reported to Owen; that since Townsend's discharge no complaints have been received; that he had no knowledge of any changes in the route, that he overheard Townsend say to other people in the store that, "he was not satisfied with the pay scale and that he had too much, too many stops to handle on the truck that he had, that at one time Townsend did say that he was looking for another fob " On cross-examination, Clark testified that at times he did not receive the number of cylinders he required; that "Here again Mitch absolves Townsend of any blame yet testifies to the incident as constituting a "complaint " "The approximate date of this incident was not given "Other evidence shows that there were complaints concerning Townsend's successor and that the Newhall store did increase its inventory Woodmansee testified that Mitch himself had lodged a complaint against McDonald, Townsend's replacement "This conclusionary statement , in my view, is not supported by the evidence 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on some of these occasions it was the store's fault as no telephone call was made to place the correct order; that during that summer there was a shortage of cylinders at Respondent's because of a strike at Linde (a subsidiary of Union Carbide) and that on one occasion he called Fratus to make a special delivery to the store. On further redirect examination, Clark stated: Well, let me back up a little bit. Sometimes we would have a large run on cylinders where we would use a great deal more than we normally do, and of course, then, he would be out. Then when he got to my store he wouldn't have enough to cover it, but it generally, as far as the normal amount of cylinders that I usually took, he generally had that amount on the truck.31 Fratus testified that he was notified of the union meeting at Townsend's house on the morning of the meeting, October 3 ; that he did not at any time inform Owen of the meeting or discuss it with him or Woodmansee; that he had nothing to do with Townsend's discharge; that about 2 months prior to Townsend's discharge," he had an argument with Townsend about not loading enough cylinders on the truck and Owen overhearing the argument told Townsend that he was to follow Fratus' instructions; that he had several complaints of Townsend 's failure to deliver a sufficient number of cylinders to the Newhall store and that since Townsend's discharge although there were more customers he had no such complaints ; that Owen told him that he had told Townsend that when there were 20-25 tanks to be delivered to the hospital at Sylmar to leave them for the smaller truck to make a special trip ; that Townsend, however, did continue on occasion to take the tanks to the hospital on his truck . On cross-examination , Fratus testified that the Newhall store is now on the route runs for Monday and Thursday; that it had been on the Tuesday and Friday route run when Townsend had the route. Fratus further testified that he didn't receive any complaints from customers and that the "complaints" from Newhall consisted of requests for additional cylinders to be sent out by the small truck, because Townsend did not have enough to leave at the store D. Analysis and Conclusions Having found above that Owen and Mitch were witnesses whose testimony cannot be relied upon in crucial respects, it is necessary to scrutinize the reasons advanced by Respondent for Townsend's discharge The notice of termination36 reads as follows Not loyal to company or fellow employees, making uncomplimentary remarks about company to customers Not completing tasks properly. I find on the basis of the evidence summarized above that Townsend's only "disloyalty" to Respondent consisted of his union activity; that Townsend's uncomplimentary remarks about Respondent consisted of gripes about the burdensome route assigned to him and his low rate of pay, that Townsend filled his job adequately and conscientiously working many hours of overtime without compensation, that any deficiencies on "The foregoing testimony obviously supports my conclusion that fluctuating demands rather than Townsend's derelictions caused the shortages "1 place the incident as 4 months before the discharge 'Resp Exh 4 the servicing of the route were hardly attributable to Townsend any more than Fratus who had chief responsibility for seeing that Townsend's truck was properly loaded, that fluctuations in demand on the route resulted in some shortages and was to be expected; that Clark, manager of the Newhall store, was equally to blame for the few times he did not receive sufficient supplies because he failed to call and place his order. I conclude that Owen learned about Townsend's union activity from Fratus, and enlisted Mitch's assistance in a contrived conference with Woodmansee to give color to Owen's determination to rid Respondent of the Union's chief protagonist I believe the events that precipitated the conference between Owen, Mitch and Woodmansee on October 7 commenced when Owen overheard Ronald Edwards' casual remarks to Fratus in the washroom when Edwards said, "I hear your going Union." From Edwards' credited evidence it is clear that this was overheard by Owen and took place on Friday, October 4, the day after the union meeting at Townsend's home. Over the ensuing weekend, I am convinced that Owen secured full details of the union meeting from Fratus, and then made his arrangements with Mitch. I am persuaded that the proffered reasons for Townsend's discharge were mere pretexts to disguise the true reason, Townsend's leadership in the organizing attempt In arriving at the foregoing conclusion I have also considered (1) the timing of the discharge coming immediately after the Union's organizational meeting at Townsend's home; (2) the fact that the discharge was made in the middle of a workweek and pay period; (3) the belated advancement of Townsend's truck damage as one of the reasons for the discharge Clearly this was an afterthought designed to bolster the defense. It appears that Townsend, early in September,96 while backing up damaged Edward's truck. Apparently the damage was slight and led Fratus to "bawl" out Townsend in his customary lurid language which was replied in kind by Townsend. To end the argument Townsend told Fratus, "the hell with it; we have insurance." Owen testified that without further investigation he accepted Fratus' report that the accident arose from Townsend's negligence The evidence, however, shows that Fratus did not see the accident. Townsend said it was partly due to the fact the clutch on his truck would not hold properly. Whether or not Townsend was negligent, I find the incident trivial. In view of Larry McDonald's and Joseph Weger's testimony that they were involved in accidents without reprimand, it seems clear that Respondent customarily did not regard minor accidents as a cause for discharge; (4) Respondent's loan of $400 to Townsend on September 24 is another factor that leads me to conclude that Woodmansee who participated in processing the loan application did not know on September 24 that Townsend was scheduled to be discharged. Surely, if this were true Woodmansee would have engaged in some discussion with the loan committee concerning the advisability of a loan in such an amount to an employee about to be severed from his employment From this serious discrepancy, Owen's vague and discredited testimony with regard to making up his mind to discharge Townsend on August 15, and other testimony described above, I conclude that Owen made no such determination until October 7 at which time Owen knew of Townsend' s union activity. "I have considerable doubt that such a conference even took place Mitch thought Woodmansee was there while Woodmansee's report differs substantially from Mitch's and Owen's versions "Contrary to Owen's testimony that it may have occurred in August, the H. M. PARKER & SON The applicable legal principles are well established An employer who discriminates among employees does not violate Section 8(a)(3) unless the discrimination is based upon union membership or other union connected activities. Thus, an employer may discharge an employee with impunity if the discharge is not motivated, at least in part, by the employees' union activity." I fully appreciate that the burden of proving an improper motivation for discharge is upon General Counsel. However, as the Ninth Circuit Court stated in a recent decision. 78 Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book Nor is the trier of fact - here the trial examiner - required to be any more naif than is a judge If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal - an unlawful motive - at least where, as in this case, the surrounding facts tend to reinforce that inference [Emphasis supplied.] Having the foregoing principles in mind and the circumstances in this case, and particularly the complete collapse of the stated reason for Townsend's discharge, I regard it quite apparent that Townsend was discharged because of his prominence in the Union and his union activity As I have found above that the alleged shortcomings of Townsend were not the true reasons for his discharge but a pretext to disguise the fact that Respondent had determined to rid itself of an outstanding adherent and proponent of the Union, I conclude that Respondent by reason of Townsend's discharge violated Section 8(a)(3) and (1) of the Act. E. The Wage Increases On October 9, the day following Townsend's discharge of October 8, Owen called in various employees and informed them that Townsend was discharged because he was disloyal to the Company. At the same time he told them that wage increases would be reflected in their next pay check due on October 12. The evidence shows that wage increases received on the next payday amounted to 43 cents per hour and followed a wage increase granted in July of 15 cents per hour. There was credited evidence that Owen at a meeting of employees called in June had notified them of the July increase and that another wage increase would be forthcoming in October although no amount was specified. The General Counsel contends that as the representation petition filed by the Union was pending at the time of the October wage increases, the announcement coupled with the explanation for Townsend's discharge incident must have occurred in September as Woodmansee did not become manager until September I "ACE Comb Company, 342 F 2d 841 (C A 8), see also Steel Industries, Incorporated. 325 F 2d 173 (C A 7), where the Court said, " an employer has the right to discharge an employee for good reason, bad reason or no reason , absent discrimination " "Shattuck Denn Mining Corporation, 362 F 2d 466 (C A 9) 547 constituted an inducement to the employees to withdraw or refrain from support of the Union. The argument is further made that the amount of the increase was designed to bring them to union scale thus eliminating an incentive for further union support The timing of the wage increase, the amount and the fact that all changes of employees' status show a date of September 30, when it is clear that the signatures of all supervisors could not have been procured on that date, tend to raise serious questions as to the purpose of the wage increase However, the clear evidence that a wage increase in October was promised in June, leads me to conclude that Respondent did not violate the Act in this regard. Accordingly, I will recommend dismissal of this aspect of the complaint. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following Conclusions of Law 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Thomas Fratus is a supervisor within the meaning of Section 2(11) of the Act 4 By the discharge of Thomas Townsend on October 8, 1968, Respondent violated Section 8(a)(3) and (1) of the Act 5 Allegations found, herein, not to constitute violations of the Act are hereby dismissed THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully discriminated against Thomas Townsend by discharging him and thereafter refused to reinstate him, I shall recommend that Respondent offer Townsend immediate and full reinstatement to his former position, or, if his position is unavailable through change in Respondent's operations, then to a substantially equivalent position, without prejudice to his seniority rights and privileges, and that Respondent make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by payment to him of a sum of money equal to that he would have secured as wages from the date of his discriminatory discharge until the day Respondent reinstates him, less any net earnings in the interim period. Backpay is to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716. As the unfair labor practices committed by Respondent are of a character that strike at the roots of employees' rights safeguarded by the Act, it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed them in Section 7 of the Act 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this case, I recommend that H. M. Parker & Son, its officers, agents, successors, and assigns, shall I Cease and desist from. (a) Discouraging membership in Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization by discharging or in any other manner unlawfully discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended 2. Take the following affirmative action which I find will effectuate the policies of the Act (a) Offer to reinstate Thomas B Townsend to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges, and to make him whole in the manner described in "The Remedy" section of this Decision for any loss of earnings suffered by him by reason of the discrimination against him (b) 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 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (d) Post at its place of business in North Hollywood, California, copies of the attached notice marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 31, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words"the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order " ..In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 31 , in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith °0 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommended order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- WE WILL NOT discharge you or refuse to reinstate you because you join Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union WE WILL NOT in any other way interfere with, restrain or coerce you in the exercise of your rights to organize, to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by you, to engage in other group activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities (except to the extent that the right to refrain may be limited by the lawful enforcement of a lawful union-security clause requirement). WE WILL immediately offer to reinstate Thomas B. Townsend to his former or substantially equivalent job without any change in the seniority or other privileges he enjoyed before we discharged him and we will pay to him any money he lost as a result of our discrimination against him with interest at 6 percent. WE WILL notify Thomas B. Townsend 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. Dated By H. M. PARKER & SON (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850.