Big Three Industries, Inc.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Big Three Industries, Inc. and Roy C. Ponce. Case 21-CA-9687 July 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS' FANNING AND JENKINS On June 16, 1971, Trial Examiner Richard D. Taplitz' issued his Decision in',the above-entitled proceeding, 'finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged :in ' the complaint and recommending that it cease and desist therefrom and' take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the complaint be dismissed as to them. Thereafter, Respondent filed exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the 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 recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Big Three Industries, Inc., Long Beach, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLrrz, Trial Examiner: This case was 1 All dates are in 1970 unless otherwise specified. There is some confusion in the record as to the date that this interview occurred. In a pretrial affidavit Ponce stated that he was interviewed on November 2 and that he started work the same day. In his testimony at the trial he also said that he started work the same day as the interview but it was established through other testimony that he worked only October 21 and 22. Larry T. Burke, the general manager of Respondent , was also uncertain of the date of the interview, though based on the date on Ponce's application he tried at Los Angeles, California, on March 23, 1971. The charge and amended charge were filed by Roy C. Ponce on December 4, 1970, and January 20,197 1, respectively, and the complaint was issued on January 25, 1971. The issues litigated were whether-Big Three Industries Inc., herein called- Respondent (a) discharged Ponce because of his activities on behalf of General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union; and (b) unlawfully interrogated and threatened employees concerning their union activities. Counsel for the General Counsel and Respondent appeared at the hearing; all parties were given full opportunity to participate, to introduce relevant evidence, to, examine and cross-examine witnesses, to - argue .orally, and to file briefs. A brief, which has been- carefully considered; was filed on behalf of theGeneral Counsel. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Texas corporation, , is engaged in the manufacture of nitrogen, oxygen, and argon gasses and in the sale of welding supplies and equipment. Its main office is in Houston, Texas, but it is also located in various places in the United States, including a warehouse and pumping station in Long Beach, California, herein called the Long Beach plant. Annually, in the normal course of its business operations, Respondent, nationwide, ships products valued in excess of $50,000 across state lines. 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. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events 1. Ponce's application and hiring After answering a newspaper ad and making an appointment by telephone, Ponce went to the Long Beach plant on October 12, 1970,1 to be interviewed for a truckdriver's job .2 Ponce filled out an application for employment and was interviewed by Joe Mececca. Ponce told Mecceca that he was a member of the Union and that testified that it was October 12. I have accepted the date on the application as the date of the interview. 2 On March 23, 1971, the date of a hearing on a related representation proceeding in Case 21-RC-12034, according to the uncontradicted testimony at that hearing, the employee complement at the Long Beach plant consisted of six warehousemen and warehouse clericals, four truckdnvers, three salesmen, and one office clerical. At an earlier date there were some six drivers. 192 NLRB No. 72 BIG THREE INDUSTRIES, INC. his prior employer, Pacific Motor Trucking Company (herein called PMT), was a union company. Mececca said that Ponce would probably get the job and took him into the office of Larry T. Burke, Respondent's general manager at the Long Beach plant and an admitted supervisor. Ponce also told Burke that he was a union member and had worked for a union trucking company. Burke did not reply except to make some type of hand motion .3 Ponce's application listed his last employer as PMT. It stated that he was employed there as a truckdriver until December of 1969, when he was, laid off, and that since that time he had worked picking grapes and walnuts and had been collecting unemployment insurance. The application also listed a Mr. Lama as the, person under whom he had worked at PMT. It also stated that he-had had more than three tickets in the last 3 years. On October 18, Mececca called Lama of PMT to check Ponce's references. The conversation was such that Mececca wrote on Ponce's application that Ponce had a good work reference and had been laid off due to lack of work. In addition, Mececca. told Burke that Lama told him that Ponce's work record was superb, that he was eligible for rehire as soon as things picked up, and that he would definitely be hired back. Ponce began work on October 21 and he was discharged on October 22. 2. Ponce's protected activity On October 22, which was Ponce's second and last day of employment,-he spoke to fellow truckdriver Robert Jiminez and asked him why the Company wasn't unionized. Jiminez replied that it was because the boss didn't want the Union but that he really didn't know and that Ponce should speak to Supervisor John McDonald about it .4 Later the same day, Ponce did ask McDonald why the Company wasn't Union and McDonald answered that it was because the Company didn't want it. Still later that day, about 1:30 p.m., Ponce and another employee named Peterson went to the union office during their lunch time and spoke to Gene Bedford, the president of the Union. Bedford gave them union authorization, cards which they filled out and signed. Bedford also gave them some other cards for the remaining drivers to sign.- Ponce then went back to the Long Beach plant where he, spoke to employees Jiminez, Monte, and Stewart, each of whom signed authorization cards.5 When he spoke to other employees, Ponce told them to fill out the cards, but to be discreet about it. The same day Ponce returned the cards to the Union. About 7:30 p.m. that eveutng, Burke called Ponce into his office and discharged him.6 3 In his pretrial affidavit Ponce stated that Burke indicated by a hand motion to keep it quiet. In his testimony at the Trial Ponce testified that Burke made a hand motion for bun to keep it quiet, but, upon being led by the General Counsel, he added that Burke said that he should keep it quiet I do not credit Ponce's addition to his testimony nor do I give any weight to his interpretation of the hand motion. As is set forth in more detail below, I do not believe that Ponce is worthy of any credence. 4 Burke credibly testified that McDonald did not have authority to hire, fire, transfer, suspend, lay off, recall, promote, assign, reward, discipline, or recommend any of those things concerning employees. However, whether or not he was a supervisor within the meaning of the Act, I find he was an agent of Respondent and Respondent was responsible for his conduct. When Jiminez was hired, he was told by Mececca that McDonald was a 3. The discharge 371 There is a sharp dispute as to what occurred at the discharge interview. Ponce testified as follows: Burke told him that he had heard from one of the employees that Ponce was asking why the Company was not Union. Ponce denied saying anything and Burke replied that he was disgusted with Ponce and he didn 't think Ponce would do a thing like that when he gave him the job. Ponce asked Burke if he was going to be terminated. Burke answered that he would have to let Ponce go because Ponce was in the Union and he didn't want any of the employees involved in a union. Burke also told Ponce that he was not qualified as a driver or as an employee of the Company. After some talk about Ponce's qualification, Burke told Ponce to come back in the morning and that it would be up to McDonald whether or not Ponce continued to work. Burke's version of the conversation was substantially different. He testified as follows : Burke knew of Ponce's union membership at the time he hired him ; he didn't see anything wrong with it and nothing was said about the Union during the terminal interview. Burke did not tell Ponce that McDonald would make the final decision as to his employment. Burke assigned Mececca to do the interviewing for him, McDonald didn't even know Ponce had been hired, and McDonald was not consulted on any personnel matters. Burke told Ponce that he was not qualified to be a driver for Respondent and that he was going to be terminated. Burke confronted Ponce with his application for employment and asked him whether it was true that Lama had been his supervisor during his prior employment. Ponce admitted that he had lied on the application. Burke said he had no alternative but to terminate him and asked him to come back the next morning when the papers and check would be ready. Burke impressed me as a credible witness. The same is not true of Ponce. Ponce's assertion that in the terminal interview he was told that he was to be fired because he was in the Union is difficult to believe in the face of Ponce's own admission that he told Burke before he was hired that he was'a union member and Burke hired him anyway. It is even more difficult to believe Pence's testimony that Burke, the general manager of the Long Beach plant, assigned the final decision on whether to keep or fire Ponce to a low echelon managerial employee such as McDonald. Such an assignment might have occurred if the real reason for the proposed discharge was Ponce's questionable work ability, but it's hardly likely that such a delegation would have been made if the reason were Ponce's union activity. Ponce's many admissions on the stand that he had given false supervisor and to report to him. When Ponce was hired,'Burke introduced McDonald to him as a supervisor and told him to report to McDonald who assigned work to him. The same was true for employee 'Robert D. Monte, By holding McDonald out to the employees as a supervisor, Respondent was at the very least investing bum with the apparent authority to act as its agent. 5 Monte's card, G.C. Exit. 6, is dated October 23, bin Ponce credibly testified that it was signed with the others on the 22d. 6 Jiminez testified that Peterson told him in Ponce's presence'that Burke had found out about the union cards that Ponce had passed around. Ponce did not corroborate that testimony. Peterson did not testify and, in the absence of any evidence concerning the source of his belief that Burke knew about the cards, little weight can be given to Jiminec' testimony. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information on his employment application did not add to his credibility. His application showed that he had been a truckdriver when he left PMT. In his testimony he also averred that he had been a truckdriver at that time, but he recanted that testimony and said that he was working on the dock then and that he was not a truckdriver. He testified that to his knowledge he did not take any reduction in pay when he switched from truckdriver to loader. However, after further examination, he acknowledged that truckdrivers earned $4.21 an hour and loaders $4.15. He admitted that he was not laid off by PMT as he had claimed in his application but that he had been discharged. Though he equivocated on the question of who his supervisor was at PMT, he acknowledged that on his grievance protesting his discharge from PMT his supervisor was listed as Reece (misspelled Rice in the grievance). His application had listed his supervisor as a Mr. Lama. Though PMT was listed on his application as his last employer, he admitted on the stand that he worked for two different firms between leaving PMT and being hired by Respondent. I credit Burke's version of what occurred at the terminal interview. The following morning, Ponce came back to the Long Beach plant to pick up his check.? 4. The postdischarge events Jiminez, testified that on Monday (October 26) he returned to work and, asked McDonald what happened to Ponce and that all McDonald told him was that Ponce was terminated. Upon further questioning, Jiminez added that McDonald told him that Ponce's application was filled out incorrectly. When questioned still further, he testified McDonald told him that they had found out that Ponce didn't put down on the application that he was a union member. McDonald did not take the stand and therefore Jiminez' testimony is uncontradicted, but nonetheless I find it completely incredible. The application does not ask for an applicant's union affiliation and Ponce did tell Burke about his union membership. In addition, the manner in which Jiminez kept adding to his testimony cast doubt on his credibility. I therefore do not credit Jiminez in this regard. In the early part of November, Burke spoke to Jiminez alone in the plant hallway and asked him if he had'signed a union card. Jiminez answered that he had and Burke replied that some people would probably want to talk to him.8 On March 5, 1971, a National Labor Relations Board election was held in Big Three Industries, Inc., Case 21-RC-l2034, On some unknown date before that'election, a number of the drivers got together and decided to talk to Burke about getting a wage increase. Some eight employ- ees, including Robert Monte, approached Burke and asked him for a raise. Burke replied that they had not been there long enough for a raise and that all of them had already 7 I do not credit Ponce's assertion that he spoke to Burke when picking up the check and Burke told torn that he was terminated because he was in the Union and that McDonald had repeated what he had said about the Union. It is noted that in Ponce's pretrial affidavit he made no mention of a discussion concerning the Union at this meeting. for the reasons set forth above, I do not believe Ponce to be credible. received a raise except for Monte, who had not moved "up on a truck." Monte said that the Union was there offering them better wages, more benefits, and things in that category. Burke answered that nobody had been therefor a year and he would not give the raises.. Burke and Monte got into a heated discussion in which Burke said that if Monte didn't like it there his termination paper could be drawn up immediately. Monte replied that he wasn't giving an ultimatum to Burke and that he liked working there but that he needed and_ deserved a raise,and he . thought the other drivers- felt the same way. Burke repeated that if Monte didn't like it he could be terminated then and .that Respondent would go to contract labor drivers.9, The election was scheduled for 9 a.m. on May 5,1971. At 8:30 on that date, Burke called Jiminez to the corner of the loading dock, told him that he had gone out on a limb for him the day Respondent hired him, and asked if he could do him (Burke) a favor and vote against the Union. Jiminez told him that he would do it. Sometime well before the election' Burke told employee Monte that when business picked up, Monte had a chance to work as a pumper. That position, according to Monte, could be considered a promotion. About an hour before the election, Burke had another conversation with Monte in which he told Monte that any promises he had made to him could not come true if the Union did come in. 5. Respondent's position On October 22, which was 4 days after Mececca had checked Ponce's references with PMT and 1 day after Ponce began work, Burke reviewed Ponce's application and became suspicious because of the long period of unemploy!- ment since his last job. Burke found it hard to believe that a man with such an excellent work record would have been out of work because of a layoff for 10 months with a company as large as PMT. That morning, Burke called PMT and asked to speak to the man who had been Ponce's supervisor. He was put in touch with Harry Reece. Reece in fact was the man that Ponce had worked for at the time of his discharge. Burke asked Reece who Lama was and Reece answered that he was one of the working foremen there but that 'Ponce reported to him (Reece). Burke asked if Ponce was eligible for rehire and Reece answered that he was not. When Burke asked the reason, Reece replied that Ponce had been terminated because he had gone AWOL. There was no discussion of Ponce's work'record but Burke did learn that Ponce was a dock worker and not a truckdriver at the time of his termination and that he had not been laid off as he had claimed. According to Burke's testimony, he felt that he had been misled by Ponce's application and that he had been lied to and tricked into accepting Lama's statement to the effect that Ponce was a good worker and eligible for rehire. On 8 Though in general I do not believe Jiminez to be a credible witness, there was nothing inherently unbelievable in his testimony concerning this conversation, and Burke, who took the stand, did not deny Jiminez' assertions. 9 These findings are based on the testimony of Monte which was corroborated in substantial part by Jinunez. BIG THREE INDUSTRIES, INC. 373 the same day, Burke called Ponce into his office and discharged him. Respondent contends that Ponce was discharged because he, lied on his application and tricked Respondent into calling Lama. In addition, Respondent contends that another reason for the discharge was that a review of the application indicated that Ponce had three tickets in the last 3 years and company policy was not to hire such persons. However, this does not bear scrutiny.- Respondent does have a long-established written policy that it will not hire any driver who has more than three moving traffic violations and/or accidents in the past 3 years. Ponces application does show that he received three tickets during the last 3 years, but there is no way that Respondent, through an examination of the application alone, could have determined whether the tickets Ponce received were for moving or nonmoving (i e. parking) violations or indeed whether any of =the tickets even resulted in any findings of violation. After the discharge, Respondent did learn the details of the tickets, but whether or not that information would be appropriately used in determining whether Ponce was such a,dangerous driver that Respondent should not be ordered to put him back on the road, Respondent cannot rely on it as a reason for the discharge. Respondent also pointed out that Burke had hired Ponce as a contract laborer on a temporary basis. Under longstanding written company rules, no hiring is permitted without the prior approval of the personnel department in Houston. Burke never sent Ponce's application to Houston for approval because before sending it he found that the application contained misstatements of fact and Ponce was fired. However, no matter what Respondent's internal policies are with regard to hiring, Burke did put Ponce to work. Ponce was an employee within the meaning of the Act. Whether he was a temporary, probationary, or any other type of employee, Respondent would violate the Act if it discharged him because of his union activity. B. Analysis and Conclusions 1. The alleged violations of Section 8(a)(1) of the Act The evidence establishes four instances that could arguably be considered violations of Section 8(a)(1) of the. Act. These were: (a) the interrogation of Jiminez by Burke as to whether Jiminez had signed one of the union cards, (b) the meeting between Burke and employees in which Burke rejected their demand for a wage increase, (c) the request by Burke on the morning of the election that Jiminez do him a favor and vote against the Union, and (d) Burke's statement to Monte the morning of the election that promises could not come true-if the Union came in. With regard to (c) and (b), I do not believe that the General Counsel has proved by a preponderance of the evidence- that Respondent violated the Act. Though it can be argued that Burke's statement that he had done Jiminez a favor in hiring him implied a threat that'Burke could also fire him if he did not do the favor Burke requested of him, i.e. voting against the Union, I believe that such an interpretation would be straining the facts. Burke was simply making a strong sales pitch and was trying to use his "good guy image" so as to, be more effective. Such propaganda is not unlawful under the Act unless it contains some threat or promise. An employer can ask his employees to vote against the Union and that, I believe, was all that Burke did. As to Burke's meeting with the employees in which the wage increase was discussed, I do not believe that Burke was trying to or did either undermine the Union or interfere with the concerted activities of the employees. The employees came to him, not as representatives or members of the Union, but as individuals who wanted a wage increase. Though that in itself is a protected activity under the Act, the employees gave the appearance of asking Burke what he would give them to stay out of the Union. It is difficult to give any other interpretation to Monte's asking for a wage increase while telling Burke that the Union was there offering them such things as better wages. If Burke-did anything other than turn the employees down, he might well have violated the Act. The heated discussion that Burke had with Monte and Burke's statement to the effect that he could draw up discharge papers for Monte appear to relate to Monte's individual request for special treatment and not to any concerted or union activity. Burke's statement that he could use contract labor drivers also did not appear to be keyed to any concerted or union activities of the drivers but arose from his heated discussion with Monte. Looking at this conversation in its entire context, I do not believe that Burke violated the Actby any of his statements. With regard to the matters set forth in (a) and (d), I find that Respondent did violate the Act. In determining whether interrogation concerning union activities violates Section 8(a)(1) of the Act, the Board has held that all the circumstances in which the interrogation occurs must be considered. Blue Flash Express, Inc., 109 NLRB 591. In that case, the Board dismissed a complaint where such interrogation was accompanied by a statement from the company as to a legitimate reason for the interrogation, where the company representative assured the employee against reprisals, and where the company had not demonstrated union hostility. See also N.L.R.B. v. Cameo, Inc., 340 F.2d 803 (C.A. 5), where such matters as the place of the interrogation and the rank of the official doing the questioning were also considered. Though in Struksnes Construction Co., Inc., 165 NLRB 1062, the Board was concerned with a polling of employees rather than individual interrogation, some of the language in that case is instructive. The Board held: In our view any attempt by an employer to ascertain employee views and sympathies regarding :unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on the Section 7 rights. As we have pointed out, "An employer cannot discriminate against union adherents without first determining who they are." Cannon Electric Company, 151 NLRB 1465, 1468. That such employee fear is not without founda- tion is demonstrated by the innumerable cases in which the prelude to discrimination was the employer's inquiries as to the union sympathies of his employees. The Board went on to hold that in a polling situation a violation would be found unless the purpose of the poll was 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to determine the truth of a union's claim of majority; this purpose was communicated to the employees; assurances against reprisal were given; the employees were polled by secret ballot; and the employer had not engaged in unfair labor practices or otherwise created a coercive atmosphere. Jiminez was interrogated about his union activity, specifically whether he signed a card, by the highest ranking official of Respondent at the Long Beach plant. Though the interrogation ,.did not take place in Burke's office, Jiminez was singled out and spoken to alone. Burke did not tell him why Respondent wanted to know whether he had signed a union card except to ; state-that people would want to talk to him. Burke gave no assurances that Jiminez would be free from reprisals. In addition, Jiminez knew that Respondent was hostile to the Union. It was Jiminez who told Ponce in October that the Union was not in at the Long Beach plant because Respondent did not want it. Respondent's conduct after Burke's interrogation of Jiminez made its hostility toward the Union even more apparent. Thus, Burke asked Jiminez to vote against the Union as a personal favor to him and Burke told Monte that if the Union came in, any promises that had been made could not come true. The latter statement I find to be a violation of Section 8(a)(1) of the Act. Burke had held out the possibility of Monte's being assigned to a better position. On the morning of the election, Burke warned Monte that he-wDuld-not be considered for wetter-position unless the employees abandoned the Union. By such conduct, Respondent, through Burke, interfered with the rights of employees guaranteed by Section 7 of the Act and therefore violated Section 8(a)(1) of the Act 1° I also find that Burke's interrogation of Jiminez concerning whether he signed a union card constituted a violation of Section 8(a)(i) of the Act. 2. The discharge of Ponce Respondent was hostile toward the Union. However, that hostility was not so intense as to prevent it from hiring Ponce who had acknowledged in an initial interview that he was. a union member. The hostility was expressed in the matters found to be violative of Section 8(aXl) above, but none of those matters are of such far-reaching significance as to indicate a likelihood that Respondent would discharge an employee for engaging in union activity . Thus, it appears that Respondent bore an animosity , though not of any massive proportions, toward the Union. In the face of this animosity, Ponce engaged in very substantial union activities. He asked an employee and McDonald why Respondent wasn't unionized; he went to the union hall, secured union authorization cards, signed and had employee Peterson sign one, and had employees Jiminez, Monte, and Stewart sign cards at the plant . Within a matter of hours after this activity, Ponce was discharged. However, for the General Counsel to establish a prima facie case, he would have to establish that Respondent had knowledge of tQ. Though the complaint does allege that between October 21 and 23 Respondent thieatened employees with discriminatory action if they did not abandon the Union, there is no allegation to the complaint which covers action by Respondent in early March 1971 when the statements to Monte were made. However, there was no objection to the admission of evidence relating to that incident, the issue was closely related to a matter the union activity before the discharge. Respondent did know through McDonald that Ponce had questioned why the Long Beach. plant wasn't unionized, but it is difficult to believe that Poiice,was discharged for-asking that question. At the time of his hire, Respondent .knew that Ponce's last employer, was unionized and that he himself was a union member. Such a question by,Ponce would-not indicate that he intended to organize the Long Beach plant=and it is doubtful. that Respondent would take such a question with undue alarm. There is no credible probative evidence that Respondent had any'knowledge that Ponce had gone to the Union; signed an authorization card, and had other employees sign such cards. As noted above, Jiminez' testimony concerning Peterson's remark that Burke had found out about the union cards is not probative evidence that Burke in fact knew about the cards. It cannot, be determined from the record whether. Peterson's remark was based on rumor or fact. -Ponce attempted to inject the missing ingredient of company knowledge in his testimony concerning his termination and -day after termination interviews, but I am unable to credit that testimony. As the Board held in Mook Weiss Meat Packing. Company, 160 NLRB 546: "Unquestionably, knowledge by the Respon- dents of the dischargees' union activity is a prerequisite to a finding that the discharges were made for that reason, and the- General Counsel has the burden of proving this beyond mere suspicion-'or surmise." See also Kayser-Roth Hosiery Co., Inc., 166 NLRB 372. Under the Board's so-called "small plant doctrine," if Ponce's union activities were carried out in such a manner or at such times that in the normal course of events Respondent would have had to notice them, an inference would be warranted-that the Company did have'knowledge of his union:activity. Weiss Plow Welding Co., Inc., 123 NLRB 616; ;Hadley Manufac- turing Corporation, 108 NLRB 1641; Saxon. Paint -Stores, Inc.,- -160 NLRB 1757. However, Ponce and. Peterson -signed the cards at,the union hall. It_ is unlikely that, Respondent had knowledge of that activity. Ponce did secure the signatures of three other employees at the Long Beach plant but apparently he was quite conscious of secrecy because, when he spoke to those employees, he told them to fill out the cards, but to be discreet about it. None of these actions were so open or widespread that it could be logically inferred that Respondent must have noticed them.'I find that General Counsel has failed to prove that Respondent had knowledge of Ponce's union activities. However, even if such knowledge could be-inferred and, therefore, a prima facie'case made out by the General Counsel, I believe that Respondent's defense is sufficient to'rebut it: - Burke called -PMT on October 22, found. out that Ponce had made very material misrepresentations on his-employ- ment application, and discharged him the same day. These misrepresentations related to the fact that Ponce had been discharged and not layed off by PMT, that Ponce was not eligible for rehire with PMT, and that Ponce had been a dock worker and not a driver at the time of his discharge set, , forth in the complaint, and the issue was litigated. Where, as here, an issue relating to the subject matter of a complaint is fully litigated at a hearing, and there is no special showing of detriment to the Respondent, that issue must be decided even though it is not specifically alleged to be an unfair labor practice in the complaint. Curtiss-Wright Corp., 3t7, F.2d 61 (C.A.,3, 1965). See also Garland Corp., 162 NLRB 1570. BIG THREE INDUSTRIES, INC. from PMT. In addition, Burke-believed that Ponce had tricked Respondent into calling the wrong man at PMT for a recommendation in order'to cover up his misstatements on the application. These reasons given by Respondent for the discharge were not so unsubstantial as to warrant an inference that another, reason was the true cause of discharge. Burke had good reason to be suspicious as to the accuracy of the application because of the unusual length of layoff from the last employer, but it is a matter of speculation why he picked up: the application and again reviewed it the day after Ponce had been hired. Some question is also raised by the fact that Respondent urged as one of the reasons for the discharge the fact that Ponce had "moving violations", when at the time of his discharge Respondent did not know whether they. were moving violations or not. However, as to the reinspection of the application by Burke, I am unable to find that such an action, occurring as it did the day after hire, was so unrelated to the ordinary initial hiring procedure as to invalidate Respondent's defense. It is also noted that Burke credibly testified that he called PMT in the morning of October 22. Ponce did not go to the union hall and obtain the authorization cards until about 1:30 p.m. that day and all his union activity at the plant occurred after that. I am also unable to find that the "traffic ticket" defense significantly undermines the Respondent's primary de- fense. Viewing the case as a whole and particularly noting that Respondent hired Ponce knowing that he was a union member,, that the General Counsel's proof that Respondent had knowledge of Ponce's,activities with respect to securing union authorization. cards was at best 'weak, and that Respondent's primary reason for discharging Ponce was of substantial weight and was not rebutted by the General Counsel, I find that the General Counsel has not proved by a preponderance of credible evidence that Ponce was discharged in violation of Section 8(a)(1) and (3) of the Act because of his union activity. I shall therefore recommend the dismissal of those sections of the complaint that allege that Ponce was discharged in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered 11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become Its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 375 to cease and desist therefrom- and take certain affirmative action designed to effectuate the policies of the Act. 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. By interrogating an employee as to whether hessigned a union authorization card and by warning an employee that he would not be considered for a better position unless the employees abandoned the Union, Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act in violation of Section 8(a)(i)"of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as set forth above, the General Counsel has not established by a preponderance of the `evidence that Respondent has violated the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: it ORDER Respondent, Big Three Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to whether they signed authorization cards on behalf of'General Truck Drivers, Chauffeurs & Helpers Local 692, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America or any other union. (b) Warning employees that they will not be considered for better positions unless they abandon that or any other union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Long Beach, California, plant copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, within 20,-days from the date of receipt of this Decision, what steps, Respondent has taken to' comply herewith.13 IT IS ALSO ORDERED that _the complaint be dismissed insofar as it alleges violations of the Act not specifically found. is In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read: "Notify the Regional Director for' Region 21,' in` writing , within 20 days from the date of `this Order; what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the -United States Government 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 you that., After a tri al at which all sides had a chance to give evidence, -a 'Trial Examiner oft the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or, all, these things except to the,extent ,that membership in a union may be required pursuant to, a lawful union-security clause. - WE WILL NOT -,do= anything that restrains or coerces employees with respect to these rights. WE WILL NOT interrogate our employees as to whether they signed,-authorization cards on behalf of General Truck Drivers, Chauffeurs &Helpers Local 692, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen, & Helpers of America, or any other union., - 11 WE WILL NOT warn employees that they will not be considered for better positions unless they abandon that or any other union. Dated By BIG THREE INDUSTRIES, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be -directed to the Board's Office, Eastern, Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.