Gilbert-Robinson, Inc.

GILBERT-ROBINSON, INC. 279 Gilbert-Robinson, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehouse, Mail Order, Ice, Cold Storage, Soft Drink, Waste Paper, Distribu- tion Workers, Egg Breakers, Candlers, Miscellane- ous Drivers and Helpers, KCMO, KCK and Vicinities, Local No. 838 and Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO and its Constituent Members, Parties to the Contract. Case 17-CA-4489 September 21, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 7, 1971, Trial Examiner John P. von Rohr 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. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner.3 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, Gilbert-Robinson, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. MEMBER JENKINS, concurring: I agree with my colleagues that Respondent violated Section 8(a)(1), (2), and (3) of the Act. However, in finding a violation of Section 8(a)(2), I rely solely on those facts showing that when Respondent's supervi- sors informed the employees that they would have to join the Bartenders Union that day or lose their jobs, the supervisors required the employees to sign a combination card which included a dues deduction authorization for the Bartenders Union. Although the card contained an inconspicuous provision which the employee could initial, if he noted it, cancelling the checkoff authorization, Respondent did not advise its employees of their right to do so. I find Respondent's conduct constituted an unlawful requirement of dues deduction authorizations from its employees as a condition of employment and thus violative of Section 8(a)(2) and (1) of the Act. In view of my conclusions herein, I find it unnecessary to determine whether the Respondent violated Section 8(a)(2) by its unilateral enforcement of the lawful union-security provisions in its collec- tive-bargaining agreement with the Bartenders Un- ion. i The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Trial Examiner's finding that Respondent's discharge of employee Nunnink on November 11, 1970, violated Section 8(a)(l) and (3) of the Act in that Respondent discharged Nunmnk for his Teamsters activity among Respondent's employees However, we do not rely on the Trial Examiner's finding that Danny Pate was permitted to remain in Respondent's employ despite a more serious offense 3 The word "not" was inadvertently omitted by the Trial Examiner from the phrase "I do regard" in In. II of his Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge filed on November 12, 1970, and an amended charge filed on January 28, 1971, the General Counsel of the National Labor Relations Board for the Regional Director of Region 17 (Kansas City, Missouri) issued a complaint on February 3, 1971, against Gilbert-Robinson, Inc., herein called the Respondent or the Company, alleging that it had engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr in Kansas City, Missouri, on March 31, 1971. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. In lieu of filing briefs, the General Counsel and the 193 NLRB No. 39 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent engaged in oral argument at the close of the hearing.' Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation with its principal place of business in Kansas City, Missouri, is engaged principally in the business of food service and catering . The only facility involved in this case is its airline catering service at the St. Louis, Missouri, airport . During the calendar year 1970, the Respondent sold goods and services valued in excess of $50,000 from its Kansas City, Missouri, facility to enterprises which are directly engaged in interstate commerce. During the same period, Respondent purchased goods valued in excess of $50,000 from points and places outside the State of Missouri . Respondent's annual gross volume of business exceeds $500,000. The Respondent concedes , and I find, that it is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehouse, Mail Order, Ice, Cold Storage, Soft Drink, Waste Paper, Distribution Workers, Egg Breakers, Candlers, Miscellane- ous Drivers and Helpers , KCMO, KCK and Vicinities, Local No. 838 and Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, and its constituent members are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The issues in this case are (1) whether Respondent gave unlawful assistance to the incumbent union in violation of Section 8(a)(2) of the Act; (2) whether Respondent's discharge of employee Thomas Nunnink on November 11, 1970, and its termination of employee James Michaels on November 12, 1970, were in violation of Section 8(a)(3) of the Act; and (3) whether Respondent engaged in other conduct independently violative of Section 8(a)(1) of the Act. B. The Facts Respondent owns a facility at the Kansas City, Missouri, airport, the only facility involved herein, known as the Joe Gilbert Restaurant . Aside from an airport restaurant, this facility operates as the food and beverage caterer to the various airlines operating in and out of the airport. i The Respondent subsequently submitted a legal citation, which I have considered 2 The record does not reflect if a later contract was executed 3 The former is the contract terminology The employees who testified simply described their lobs as being that of a "service man and caterer " 4 The credited and unrefuted testimony of Wood The further testimony At all times material hereto Respondent Joe Gilbert's employees have been represented by the Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and its constituent members, hereinafter called the Hotel and Bartenders Union or the incumbent union. The latest collective-bargaining agreement between the parties was effective from March 18, 1968, to January 15, 1971.2 It is relevant to note here that this agreement contained a valid union-security clause. The category of employees involved in the instant dispute (and these are covered by the foregoing contract) are classified as plant service attendants. They are also known as servicemen and caterers .3 These employees are primarily engaged in the loading of airplanes with food and beverages, although their duties also include such miscella- neous tasks as dumping garbage, cleaning the ramp area, and washing service vehicles. As will be dealt with more fully hereinafter, Thomas Nunnink, one of the alleged discriminatees herein, was instrumental in undertaking an organizational campaign on behalf of Teamsters, et al, Local No. 838, the Charging Party herein and hereinafter called the Teamsters Union. This activity was touched off with the holding of a union meeting at Nunnink's apartment on October 30, 1970. As also will appear hereinafter, the evidence establishes that Respondent had knowledge of this meeting. However, relevant to the complaint's allegation that Respondent rendered unlawful assistance to the Hotel and Bartenders Union in violation of Section 8(a)(2) of the Act, I set forth first the evidence pertaining to the enforcement (or lack thereof), of the union-security clause prior to the advent of the Teamster activities. Terry Wood has been a service employee of the Respondent since May 24, 1970. At or about the time of his hire he was told by Earl Strickland, concededly a supervisor within the meaning of the Act, that the Company had a union, but that it was not a "strong union."4 Notwithstand- ing the union-security provision in the aforenoted current collective-bargaining agreement, Wood was not asked to become a member of the Hotel and Bartenders Union until the first part of November 1970. Wood testified that at this time he was called into the general supervisor's office where Sheffield had union cards, which cards were a combination of membership application-dues deduction authorization cards for the Hotel and Bartenders Union. Sheffield told him that he would have to sign one and he did so. At the same time James Michaels, one of the alleged discrimina- tees herein, also signed a membership-dues card for the incumbent union when requested to do so by Sheffield. Within a day or so after having signed the cards, Wood and Michaels went to the office of Mr. Dewey, Respondent's catering manager, to see whether they would be required to remain members of the incumbent union.5 It is undisputed that Dewey advised these employees that they did not have to belong to the incumbent Union, that he thereupon of Wood, as hereinafter set forth , is also uncontroverted S Michaels testified without contradiction that on the day after he signed the card he was told by Bill Maddox, his supervisor, that he would not have to belong to the incumbent union Further, he credibly testified that at the time mentioned above Maddox accompanied him when he went to see Dewey Although Michaels did not mention that Wood GILBERT-ROBINSON, INC. 281 produced their signed membership-dues cards which he had retained in his office, and that these employees thereupon tore up the cards. Danny Pate was employed as a service man since August 24, 1970. In or about the middle of October 1970 another employee handed him a Hotel and Bartenders membership- dues card, stating that a supervisor told him that the employees were supposed to sign them.6 Not being desirious of joining the Union, Pate signed his name but wrote on the card that he did not wish to join the Union. He did not, in fact, become a member of the incumbent union at this time. Thomas Brand, employed as a service man since about the middle of August 1970, was advised by Supervisor Steve Sheffield about the middle of October 1970 that he would be required to join the Hotel and Bartenders Union. Brand replied that he would like some time to think about it. At this time no further steps were taken to have Brandjoin the incumbent union and he did not do so. Thomas Nunnink became a member of the Hotel and Bartenders Union approximately 8 months subsequent to his being hired in 1967. A month later he resigned by signing a withdrawal card. He did not thereafter become a member of the incumbent union at any time prior to his discharge on November 11, 1970. Turning now to the Teamster organizational activity, Nunnink first contacted Harry Kress, a representative of the Teamster Union, about the middle of October 1970. The first meeting was held at Nunnink's apartment on October 30,1970,at 12:30 a.m., the latter hour being chosen to enable the service employees of all three shifts to be present. Practically all of the service employees, these numbering approximately 20, attended this meeting. Employee James Michaels, who was present, testified that all the employees who attended the meeting signed Teamster authorization cards. Ed Llaflet is a shift supervisor and his jurisdiction includes the supervision of Danny Pate. Pate was one of the employees who attended the above organizational meeting on October 30. According to the undenied and credited testimony of Pate, Llaflet came up to him at the dispatching desk 3 or 4 days after the meeting and spoke to him as follows: He approached me and he sort of leaned down toward me and he said, "What about the union meeting?" I said, "What meeting is that?" He said, "You know what union meetings, the Teamsters." I said, "How did you know about it?" He said, "I know." I said, "Well, I will probably get it next week." He said he was all for the union. It is undisputed that on November 12 (which was the day after Nunnink's discharge), Supervisor Earl Strickland accompanied them to Dewey's office, it is clear from Wood's testimony that he and Michaels were present with Dewey at the same time 6 Pate testified that Thomas Nunnink was the employee who gave him the card at this time While no doubt there is some plausible explanation, this seems strange in view of the fact, as hereinafter noted, that Nunnink had withdrawn from the Hotel and Bartenders Union and apparently was not a member of that labor organization at this time. Nunnink was not asked to testify about the matter This and certain other annoying gaps in the testimony, while not in themselves dispositive of the issues herein, properly should have been brought out or clarified by the General Counsel in the direct testimony of these witnesses called a number of employees into his office, including employees Terry Wood, Thomas Brand, Danny Pate, and Fred Winegrad. At this time Strickland handed these employees membership-dues cards for the Hotel and Bartenders union and told them they would have to sign them by the end of the day or punch out .7 Faced with this alternative, it is undisputed that these employees signed the cards before the end of the day .8 James Michaels also was called into Stnckland's office on November 12. According to Michaels' undenied testimony, Strickland told him that he would be required to join the incumbent union . When he replied that he did not want to join the Union because he was contemplating reentering the military service in about 2 weeks. Strickland rejoined, "If you want to work the rest of the day you have to join the union."9 It is undisputed that Michaels thereupon punched out and has not since been employed by the Respondent. In further chronological recitation of the facts, it may be noted here that a second Teamster organizational meeting was held on November 12 or 13, this apparently also at Nunnink's apartment.i° Employee Terry Wood testified without contradiction that about a week after this meeting Supervisor Strickland approached him about acting as a weekend supervisor. Strickland then brought up the subject of the Union, stating that he knew that Craig Stack, a service employee, had attended the Teamster Union meeting. According to Wood , Strickland at this time also told him "we would be the ones hurt because the Teamsters don't let anyone go to school and we were just too small to fool with." Also about a week or so after the November 12 Teamster meeting, employee Thomas Brand was called into the office of Supervisor Sheffield . Brand said that at this time he was angry over the fact that he had recently been assigned to the "porter's" job of sweeping the floor, this not being the type of work for which he had been hired. Upon being called into the office, Sheffield instructed Brand to make pop setups, whereupon Brand stated, "OK, at least that is a little bit better than sweeping floors." It was Brand's undenied testimony that Sheffield thereupon stated, "If you don't like it, you ought to get your union steward Tom Nunnink and the Teamsters to do something about it." C. Conclusions as to the Section 8(a)(2) Allegations and as to the Termination of James E. Michaels In light of the facts above set forth, I think it crystal clear that Respondent violated Section 8(a)(2) of the Act by rendering unlawful assistance to the Hotel and Bartenders Union. Thus, to briefly recapitulate, the undisputed evidence reveals that prior to the advent of the Teamster organizational campaign not only was there a failure to r Unrefuted and substantially corroborative testimony of Brand, Pate, and Wood 8 Brand, Pate, and Wood testified that they signed the cards on November 12 Although Winegrad did not testify, in view of what happened to Michaels, as hereinafter noted, it is reasonable to infer that he also did so 9 Credited and unrefuted testimony of Michaels Michaels said that Supervisor Dewey was also present during this conversation is Although there is no doubt that this meeting in fact took place, the record is hazy as to details 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforce the contract's union-security provision requiring membership in the incumbent union, but rather Respon- dent went so far as to permit several employees to withdraw and destroy their union membership-dues cards, which signed cards Respondent had retained in its possession. That Respondent became aware of the Teamster activities among its employees is clearly established by Supervisor's Llaflet's conversation with employee Pate in early Novem- ber wherein Llaflet told Pate, inter alia, that he had knowledge of the recently held Teamster organizational meeting. It was not long after that, on November 12, when Supervisor Strickland called a group of employees into his office and gave them the alternative of either signing membership applications for the incumbent union before the end of the day or else punching out. Respondent offered no explanation whatever for its unusual and precipitate action in thus pressurizing its employees into joining the incumbent union.ti Significantly, Thomas Nunnink, who except for a brief break was employed by Respondent since November 2, 1967, testified that through this entire period he never knew of any grievance being filed nor within his knowledge were there any union stewards on the job.12 In my opinion this inactivity by the incumbent union undoubtedly serves as some explanation for Respondent's entire course of conduct herein. In any event, and in light of all the foregoing, I find that Respondent's conduct in soliciting employees to join the incumbent union on November 12, 1970, was violative of Section 8(a)(2) of the Act. Since this solicitation was accompanied by a threat of discharge if the employees did not acquiesce, I find, under the circumstances of this case, that Respondent thereby interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and that Respondent thereby violated Section 8(a)(1) of the Act. Further, I find that employee James E. Michaels was constructively discharged when he refused to sign a membership card for the incumbent union but instead chose the only other alternative which Respondent gave him, which was to punch out. Accordingly, I find that by this conduct Respondent violated Section 8(a)(3) and (1) of the Act. D. The Discharge of Thomas Nunnink Nunnink was hired by Respondent as a ramp service man on November 2, 1967. He quit this employment on June 2, 1970, but returned to work for the Company on July 8, 1970. His subsequent discharge on November 11, 1970, is here at issue. As previously indicated, Nunnink Joined the Hotel and Bartenders Union about 8 months after his hire in 1967. However, he withdrew his membership from the incumbent union about 1 month later and has never since renewed his membership. As also previously noted, Nunnink was instrumental in contacting the Teamsters Union in the 11 Brand testified that on November 12 Supervisor Strickland stated that the incumbent union "was on his back " and that this was the reason he was requiring the employees to join the incumbent union . However, Respondent offered no testimony to this effect and I do regard Brand's testimony as legally sufficient to establish that the incumbent union, in fact, had requested Respondent's assistance in enforcing the union -security clause in the contract middle of October 1970. Subsequently, on October 30, 1970, a Teamster organizational meeting was held in his apartment with approximately all 20 of the Respondent's service employees to attendance. Nunnink worked under the supervision of Bill Maddox, a ramp supervisor, and his hours were from 5:30 a.m. to 7:30 p.m. Maddox, however, was discharged on November 10 and Steven Sheffield assumed supervision of the day-shift employees on November 11.13 At or about 11 a.m. on this date Sheffield came to the loading dock and asked Nunnink to sweep the ramp area and to wash a service van. Nunnink replied that he was in the process of preparing for a flight that was coming in, but that he would comply with Sheffield's request before he went home. It is undisputed that at this time Nunnink was engaged in his regular catering duties. According to Nunnink, he continued in these duties until the flight departed, which was about 12:45 p.m. He said he thereupon took a 45-minute lunch period, following which he started sweeping up the ramp. He testified that while he was so doing Sheffield came out, at which time Mike Mize, another employee, stated in Sheffield's presence that he would wash the aforementioned van. Mize, in fact, at this point did wash the vehicle. Nunnink said he thereupon completed sweeping the area, as instructed. At or about 2:15 p.m., as Nunnink was studying the posted flight schedule, Sheffield came up and said he would like to see him before he went home. Nunnink replied that he had time "right now" and they went to the office. Nunnink testified that the ensuing conversation was brief. According to Nunnink, Sheffield stated "that he had just got chewed out by his superior because the truck wasn't washed and the ramp wasn't swept." Nunnink said, "I'm sorry," whereupon Sheffield stated, "Somebody is going to have to pay for it, so as far as I'm concerned you're fired." Nunnink thereupon obtained his pay and departed. There is not much difference in Sheffield's account concerning the events of November 11. Sheffield testified that about 10:30 a.m. he asked Nunnink and Mize to wash the service van. When Nunnink replied that he was busy preparing for the next flight, Sheffield said he told him he should "at least get a bucket and have it filled with water and soap and have it ready." Sheffield testified that at this point Mize proceeded to wash the van. He gave no further testimony concerning the incident. Sheffield further testified that around 11:30 a.m. he again spoke to Nunnink and this time told him that he expected him to sweep the ramp before he finished his shift. Continuing, Sheffield testified that "later on that day" he observed that Nunnink "hadn't made an attempt yet," whereupon he told Nunnink that he expected this work to be completed by 2:30 p.m. Sheffield further testified that around 2:10 or 2:15 p.m. he observed that Nunnink had not swept the entire ramp area, but had just swept around the lift.14 He found Nunnink upstairs, as Nunnink testified, and they thereupon went to 11 This is consistent with Supervisor Strickland's statement to employee Terry Wood, as aforenoted, that the Company had a union but that it was not a "strong union." 13 Sheffield concededly was a supervisor at all times material hereto, although he appears to have held several different supervisory positions 14 Sheffield testified that the lift area is that part of the ramp area where GILBERT-ROBINSON, INC. the office. Sheffield testified that at this point, "I told him that I was dissatisfied with his work today and why and told him that I thought he should be terminated, and he was terminated." Shortly after Nunnink was terminated Sheffield wrote out a handwritten memo, subsequently typed and placed in Nunnink's personnel file, which stated as follows: Was released for the following reasons: Failed to wash the van when asked to, and after I asked him to sweep and wash the ramp he also failed to do so. I feel this is adequate reason for terminating Tommy Nunnink. Steve Sheffield E. Conclusions as to Nunnink The record in this case leaves me no hesitation in finding that Nunnink was not discharged for the reason or reasons given by Sheffield. Starting with the reasons as expressed in the memo set forth above, Sheffield states that one of the reasons for Nunnink's discharge was that he "failed to wash the van when asked to." Suffice it to say that this obviously is a false reason. Nunnink was engaged in preparing for a flight when this request was made of him and he so explained to Sheffield. Sheffield's own testimony reveals that he accepted this reason, that employee Mize thereupon washed the van, and that nothing further was said about the matter.15 As to the second reason mentioned in the memo, it is first noted that neither Nunnink or Sheffield testified, as the memo states, that Nunnink was asked to wash the ramp as well as sweep it. This statement in the memo therefore also is not true. But with reference to the sweeping of the ramp area, there is some difference in the testimony in that Nunnink claims to have swept the entire area whereas Sheffield asserts that he swept only the lift part of that area. While I think it likely that both Nunnink and Sheffield exaggerated their testimony on this particular point, for decisional purpose I shall assume that Nunnink did not complete sweeping the entire ramp area. Even so, I find it incredible to believe that he would be so summarily discharged for this reason. Thus, the record establishes Nunnink to have been one of Respondent's most experi- enced and best qualified service employees. In January 1970, he was made a ramp supervisor and served in this position for about 6 months.18 On November 3, 1969, Joe Gilbert, whom it appears is Respondent's president, wrote Nunnink a letter in which he expressed "appreciation" for Nunnink's having served 2 years with the Company, and wherein he also stated, "You have been a loyal, faithful employee and Bill and myself wish to thank you for your fine attitude, wonderful spirit and hard work." In about March or April 1970, Nunnink received another letter from Gilbert, this one notifying him: "Congratulations on being named `the employee of the year'-I agree and am very proud of you." In view of all the foregoing, it is indeed difficult to believe that Nunnink would be discharged for the reasons asserted by Sheffield. And although Respondent's counsel at the carts of food are brought to load the lift truck . He said that the entire ramp area is approximately 40' by 35', of which the lift area comprises 12' by 10' iS Indeed, by his own testimony, Sheffield did not mention this to Nunnink at the time of his discharge. 16 As indicated earlier, Nunnink quit Respondent 's employ June 2, 283 hearing asserted that Nunnink was discharged for insubor- dination, clearly this was not a fact. Even if Nunnink did not sweep the ramp to Sheffield's satisfaction, there is no indication that he insubordinately refused to accept this job assignment. Moreover, if Sheffield was so seriously concerned that the job was not performed properly, I think it peculiar that he did not give this experienced employee some warning (the shift had not yet ended) before resorting to the extreme penalty of discharge. Indeed, the record reflects that employee Danny Pate, employed only since May 24, 1970, was issued a warning notice, but was still permitted to remain in Respondent's employ, for the more serious offense of allegedly taking goods that did not belong to him. Finally, and further reflecting upon Respondent's motives herein, it is significant that the sweeping of the ramp was not one of Nunnink's regular duties. Maddox, Nunnink's supervisor until the day before his discharge, testified that although Nunnink was assigned to take out trash each day, he (Maddox) had never assigned Nunnink to the sweeping job. Indeed, Maddox testified without contradiction that prior to his termination he had posted a sweeping schedule and that this schedule, which was only changed twice a year, was still in effect at the time he left. This schedule designated certain named employees who were to perform these duties at the times and dates reflected thereon. Suffice it to note that Nunnink was not one of the employees who was listed on the schedule to do this work and Sheffield offered no explanation for assigning Nunnink to the job on November 12 instead of following the schedule. Some further facts are here in order. Sheffield testified that he reported his discharge of Nunnink to Art Main, the director of in-flight services, later in the day. Still later that day Main entered a handwritten report in Nunnink's personnel file which stated, "Due to Tom's past record and this incident of direct insubordination I feel that it is of the best interest of the company to let Tom go." With respect to the so-called "past record" Respondent asserts it took into account that on 9-4 Nunnink was 15 minutes late, on 10-27 he was 17 minutes late, and on 10-29 he was 4 hours late.17 However, as to the latter date Respondent's record reflects that Nunnink in fact called in at 0735 to explain that he was having car trouble and therefore would be late. Additional- ly, Respondent points out that Nunnink had three truck accidents in 1970 and that on September 9, 1970, as a result of the third such accident, he was given a 2-day suspension with the warning that the next accident would result in his suspension. If Nunnink's discharge was indeed related to his accident record, this normally would be considered as strong evidence that the action was not discriminatorily motivated. However, since Sheffield did not cite Nunnink's accident record, either in his memo or in his testimony at the hearing, as a reason for deciding to discharge this employee, I am convinced and find that the accident record, as well as the flimsy matter of tardiness, was utilized by Respondent as an afterthought in an attempt to conceal its true motives. Indeed, there is direct that this was so. 1970 At this time he was a supervisor. When rehired about a week later, he came back as an employee. 17 The document reflecting the above dates does not name the year. I shall assume it refers to 1970 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, it was the undenied testimony of employee Thomas Brand that about 2 or 3 days after Nunnink's discharge he overheard a conversation between Supervisors Sheffield, Strickland and Dewey concerning "what they would say about Mr. Nunnink's being fired." Dewey ended the conversation by stating, "We have enough on record, that's all we have to say." This conversation, it may be noted, coincided with the filing of the unfair labor practice charge herein, which included the naming of Nunnink as an alleged discriminatee.18 By reason of all the foregoing, and no less particularly in light of the related fact of Respondent's unlawful assistance to the Hotel and Bartenders Union on the day after Nunnink's discharge, I conclude and find that Nunnink was discharged because of his efforts to bring in the Teamsters Union. Respondent thereby violated Section 8(a)(3) and (1) of the Act. In making this finding, I reject Respondent's contention that the evidence does not establish company knowledge. Thus, as previously noted, the undisputed evidence reflects that within 3 or 4 days after the first Teamster organizational meeting at Nun- nink's apartment, Supervisor Llaflet told employee Pate that he knew about the Teamster meeting. Since Llaflet somehow obtained knowledge of this meeting, (which is not surprising since all 20 service employees were in attend- ance) it is reasonable to assume that he also learned where this meeting was held. As to further alleged violations, and in connection with the heretofore related conversation which Llaflet had with Pate, it will be recalled that about a week after the second Teamster Union meeting, which was held in Nunnink's apartment on November 12, Supervisor Strickland told employee Wood that he knew that Craig Stack, a service man, was at that meeting. Since this was the second incident of the same nature, this matter cannot be considered as isolated. Accordingly, and as alleged in the complaint, I find that Respondent, through the statements of Llaflet and Strickland, violated Section 8(a)(1) of the Act by creating the impression among employees that their union activities were being kept under surveillance.19 Finally, the evidence is undisputed that on March 18, 1971 (5 days prior to the hearing herein), employee Danny Pate spoke to Supervisor Strickland to arrange getting time off for employee Terry Wood so that Wood could testify at the instant hearing in response to a subpoena. During the conversation Pate stated that he also had received a subpoena and that he had already arranged to have his work days changed so that he could testify. Upon being so apprized, Strickland told Pate, "If you can't see the chances you're taking, that's pretty stupid." I conclude and find that the foregoing statement to Pate contained an implied threat of reprisal in the event of his testifying and that Respondent thereby further violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, 18 The charge was filed on November 12 and served on Respondent on November 13, 1970 19 I find nothing coercive in the heretofore related conversation which employee Thomas Brand had with Sheffield about a week after the above, occurring in connection with the operations of Respondent set forth 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discriminatonly dis- charged Thomas Nunnink and James Michaels. I will therefore recommend that Respondent offer them immedi- ate and full reinstatement to their former or substantially equivalent positions and make them whole, for any loss of pay they may have suffered by reason of the discrimination practiced against them, by payment to them of a sum equal to that which they normally would have earned from the date of their discrimination to the date of reinstatement, less net earnings during said period, if any. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Co., 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in a manner described in Isis Plumbing & Heating Co., 138 NLRB 716. Because the discriminatory discharges go to the very heart of the Act, and in view of Respondent's other unfair labor practices, I shall recommend a broad cease-and-desist order, which, in the circumstances of this case, I deem necessary and appropriate to protect employee rights and to effectuate the purpose of the Act. CONCLUSIONS OF LAW 1. Respondent is 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 giving employees the impression that their union activities were being kept under surveillance, by threaten- ing employees with discharge if they did not sign membership application-dues deduction authorization cards for the Hotel and Bartenders union, and by threatening employees with reprisals if they testified pursuant to a government subpoena, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully soliciting membership-dues applica- tions on behalf of the Hotel and Bartenders Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Thomas Nunnink and James Michaels, thereby discouraging membership in the Teamsters Union, November 12 union meeting. If this was intended to relate to any independent Section 8(a)(1) allegation in the complaint, I recommend it be dismissed GILBERT-ROBINSON, INC. 285 the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: 20 ORDER Respondent Gilbert-Robinson, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving employees the impression that their union activities are being kept under surveillance; threatening employees if they do not sign membership application-dues deduction authorization cards for the Hotel and Bartenders Union, and threatening employees with reprisals if they testify pursuant to a government subpoena. (b) Unlawfully giving assistance to the Hotel and Bartenders Union, or to any other labor organization, by improperly soliciting membership-dues deduction authori- zation cards, or in any other manner proscribed by Section 8(a)(2) of the Act. (c) Discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehouse, Mail Order, Ice, Cold Storage, Soft Drink, Waste Paper, Distribution Workers, Egg Breakers, Candlers, Miscellaneous Drivers and Help- ers, KCMO, KCK and Vicinities, Local No. 838 and Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and its constituent members, or in any other labor organization, by discharging employees or otherwise discriminating in respect to their hire or tenure of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist the above-named Teamster's Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Thomas Nunnink and James Michaels immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them, in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their 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 examining and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain any backpay due under the terms of this recommended Order. (d) Post at its facilities at the Kansas City airport copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by a representative of Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, what steps Respondent has taken to comply herewith.22 It is also recommended that the complaint be dismissed insofar as it alleges violations of the Act not herein specifically found. 20 In the event no exceptions are filed as provided in Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, 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. 21 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." 22 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 17, 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 WE WILL NOT discourage membership in Internation- al Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Warehouse, Mail Order, Ice, Cold Storage, Soft Drink, Waste Paper, Distribu- tion Workers, Egg Breakers, Candlers, Miscellaneous Drivers and Helpers, KCMO, KCK and vicinities, Local No. 838, or in any other labor organization, by discharging or otherwise discriminating against our employees because of their union activities. WE WILL NOT threaten our employees with discharge if they refuse to sign membership application-dues deduction authorization cards for Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and its constitutent members. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT create the impression of surveillance or impliedly threaten our employees with reprisals if they testify pursuant to a government subpoena. WE WILL NOT give assistance to Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and its constituent members, or any other labor organization, by improperly soliciting membership application-dues deduction authorization cards or in any other manner prohibited by the Act. WE WILL offer Thomas Nunnink and James Michaels immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Teamsters Union, or any other union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(b) of the Act. Dated By GILBERT-ROBINSON, 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, 610 Federal Building, 601 East Twelfth Street, Kansas City, Missouri 64106, Telephone 816-374-5181.