Tulsa-Whisenhunt Funeral Homes, Inc.

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tulsa-Whisenhunt Funeral Homes , Inc. and Service Employees International Union, AFL-CIO, Local 245. Case 16-CA-4272 January 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On August 17, 1971, Trial Examiner Stanley N. Ohl- baum issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a sup- porting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions' and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that Respondent, Tulsa-Whisenhunt Funeral Homes, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified. Substitute the attached notice for the Trial Ex- aminer's notice. ' Chairman Miller and Member Kennedy agree that the Respondent's exception based on Collyer Insulated Wire Corp., 192 NLRB No 150, is without merit In Collyer, where the contract committed the parties to binding third-party arbitration on demand of either party, the decision to defer to that arbitral process rested in substantial part on our conclusion that "the contract between Respondent and the Union unquestionably obligates each party to submit to arbitration any dispute arising under the contract and binds both parties to the result thereof " Here, in contrast, whenever the Respondent' s general manager denies a grievance at the final step, the contract binds no one to any further procedure for peaceful resolution of the dispute Thereafter, only by ad hoc agreement of the parties can any forum of third parties or a neutral arbitrator be convened to resolve the dispute Therefore, Chairman Miller and Member Kennedy would not defer to this type of grievance machinery, and do not herein reach the question, not yet resolved by the Board, whether and in what circumstances the principles relied on in Collyer may be applicable to alleged violations of Sec 8(a) (3). Members Fanning and Jenkins concur in this result for the reasons set forth in their dissenting opinions in Collyer They further agree with Chairman Miller and Member Kennedy that, even accepting the validity of the majority view in Collyer, this is not the kind of arbitration agreement to which the Board should or can defer APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to present evidence and arguments, the decision is that we have violated the National Labor Relations Act, and we have therefore been ordered to post this notice and carry out its terms. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, help or be helped by unions To bargain collectively through a representa- tive of your own choice To act together with other employees to bar- gain collectively or for other mutual aid or protection; and, If you wish, not to do any of these things. Accordingly, we hereby assure you: WE WILL respect all of your rights under the National Labor Relations Act. WE WILL NOT discharge, lay off, terminate, sus- pend, or take any other retaliatory or discrimina- tory action against any employee because he is acting as union steward, or because he has joined or helped, or is thinking of joining or rejoining or helping, a union, or trying lawfully to represent or assist employees under our union collective agree- ment. WE WILL NOT, in violation of the National La- bor Relations Act, discourage membership in Ser- vice Employees International Union, AFL-CIO, Local 245, or any other labor organization which our employees may wish to join or to help. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of your own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection; or to refrain from any and all such activi- ties. WE WILL offer William R. Brown and Charles F. White immediate and full reinstatement (if such reinstatement has not already been effected) to their former positions or, if equivalent positions, without prejudice to their seniority and other rights and privileges; and WE WILL also pay them backpay, with interest, for any wages lost by them. 195 NLRB No. 20 TULSA-WHISENHUNT FUNERAL HOMES, INC. All of you are free to join or rejoin or not to join or rejoin, to help or to be helped, or not to help or be helped by Service Employees International Union, AFL-CIO, Local 245, or any other union, as you see fit, without any interference, restraint, coercion, or retaliation from us in any way, shape, or form. TULSA-WHISENHUNT FUNERAL HOMES, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. 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, Federal Office Building, Room 8A24, 819 Tay- lor Street, Fort Worth, Texas 76102, Telephone 817- 334-2921. TRIAL EXAMINER'S DECISION I PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner: This proceeding under the National Labor Relations Act as amended, 29 U.S.C. Sec. 151, et seq. ("Act"), based upon a complaint issued by the Regional Director for Region 16 of the National Labor Relations Board on April 14, founded on a charge filed by the above Union against the above Employer on February 10 as amended on March 19 and 31, was tried before me in Tulsa, Oklahoma, on June 2-3, 1971,' with all parties par- ticipating throughout by counsel, who also filed briefs, re- ceived on July 28, pursuant to time extended on Respondent's application. Those briefs, together with the entire record as made at the trial, have been carefully considered. The issue presented is whether Respondent Employer, Tul- sa-Whisenhunt Funeral Homes, Inc., terminated the employ- ment of its embalmers-funeral directors William R. Brown and Charles F. White in violation of Section 8(a) (3) and (1) of the Act, because of their Union activity or affiliation. Upon the entire record' and my observation of the tes- timonial demeanor of the witnesses, I make the following: Unless otherwise specified, all dates herein are in 1971 ' Trial transcript are hereby corrected in respect to obvious and typo- graphical errors FINDINGS AND CONCLUSIONS II PARTIES, JURISDICTION 107 At all material times, Respondent Tulsa-Whisenhunt Fu- neral Homes, Inc., an Oklahoma corporation with office and places of business in Tulsa, Oklahoma, has been and is en- gaged in the funeral business, including the arranging and carrying out of funerals and burials, with related services such as embalming and other preparing of bodies of deceased persons for interment. During the 12-month period immedi- ately preceding issuance of the complaint, in the course and conduct of that business, Respondent sold and distributed products and rendered services valued in excess of $500,000; during the same period, in connection with that business, Respondent also there received goods and services valued in excess of $50,000, transported directly in interstate com- merce from States other than Oklahoma. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that the above Union (Charging Party) has been at all those times and is a labor organization within the meaning of Section 2(5) of the Act; and that jurisdiction is properly asserted in this proceeding. III ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent owns and operates three funeral parlors in Tulsa, known or referred to as "6th Street," "Colonial," and "Belford," with a manager or director in charge of each. In this business Respondent employs various categories of em- ployees, including funeral directors, embalmers (some func- tion both as funeral directors and as embalmers, separately trained and licensed in each category), and hearse and other chauffeurs. Basically at issue here is Respondent's underlying reason for discharging its funeral directors-embalmers William R. Brown and Charles F. White on February 5 and failing since then to reemploy either of them. General Counsel maintains that Respondent's action was discriminatorily motivated, in violation of the Act, at least in part because of the Union membership, sympathy, or activity of those employees; Re- spondent insists that its motivation was purely economic, and that these particular individuals were selected for discharge because they were less efficient than others with lower senior- ity in the same category who were retained in its employ. Following the death of her husband in mid-1968, Sallie (Mrs. Guy) Belford, Jr., succeeded to his interest in Respond- ent Tulsa-Whisenhunt Funeral Homes, Inc. Mrs. Belford, a housewife inexperienced in the funeral business, thereafter bought out the interest of Max Grosshans, a stockholder of Respondent who functioned as manager and as a funeral director-embalmer at the 6th Street branch. In Grosshans' stead, Mrs. Belford, who took on active overall operation of the business in mid-1970, installed as general manager Charles Nicholson, whom she had encountered in Montana in connection with the funeral of her husband and whom she prevailed upon to relocate in Tulsa to become general manager of Respondent's three funeral parlors there com- mencing July 1, 1970. With Nicholson's advent on July 1, 1970, as well as thereafter until February 5, 1971, Respond- ent's staff, so far as funeral directors and embalmers was concerned, at its three branches (except for Belford, which opened August 8, 1970) consisted of a total of 13 funeral 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directors-embalmers or funeral directors', including 5 super- visors.` As of November 6, 1969, Respondent had entered into a 1-year collective agreement with the Union (Charging Party here), including maintenance of membership and seniority provisions. Upon expiration of that agreement , a similar 1- year agreement was entered into on November 6, 1970.' The latter agreement was in full force and effect at the times here material. Its seniority provision (Art. XIV) states: The company recognizes the principle of seniority. Se- niority in this agreement shall be based on length of continuous service from the first date of employment as applied to new employees, and from the date of employ- ment or last date of rehire as applied to present em- ployees, and from the last date of rehire of employees who formerly worked for the company . . . . Decreases and increases in working forces shall also be on the same basis [i.e., "greatest length of service " when in the Em- ployer's opinion attendance, skill, ability, efficiency, and physical fitness are the same] . . . . New employees, and those hired after a break in continuous service, shall not acquire seniority rights during probationary period of four (4) months. In the event of a layoff all probationary employees will be the first laid off. B. General Counsel 's Proof William R. Brown, now around 45, has devoted practically his entire adult life to undertaking. After graduation from specialty schools and Oklahoma State licensure as both em- balmer and funeral director, since 1948 he has been employed in various funeral homes, including his own for some 17 years. He entered Respondent's employ as an embalmer- funeral director on May 8, 1969. By letter of December 10, 1970, the Union formally notified Respondent of Brown's designation as Union steward authorized to act as such under the collective agreement.' Brown thereafter functioned in that capacity, taking up with Respondent's management various labor matters. These included Respondent 's holding up of disbursement of 1970 Christmas bonus checks until Decem- ber 31 ; Respondent's requiring Brown to perform certain allegedly supervisory tasks (December 1970-January 1971); and (late January 1971) a meeting with Respondent's general manager concerning certain Union "Do Not Patronize" cor- respondence during allegedly drawn-out collective agreement negotiations. Following on the heels of these , on February 5, 1971 Brown was without prior notification discharged from Respondent's employ. It is conceded that at the time of his I.e., General Manager Nicholson, who replaced Grosshans at 6th Street, Assistant General Manager Heath, also functioning as Branch Manager at Colonial, 6th Street Branch Manager Cypert, Belford Branch Manager Deardorf, Shrum, Brown, Cooper, Hammit, Hensley, McLemore, Smith, White, and Trammell (the last named, who functioned in part as public relations man, only since October 15, 1970). It is not clear when Heath became assistant general manager, according to testimony of Mrs. Belford, he was acting as such at any rate on February 1, 1971. I e, Nicholson, Heath, Cypert, Deardorf, and Shrum. The collective agreement also includes a "management rights" provi- sion (art. III). It is clear, however , that such a provision, no matter how broad, does not constitute a license to supersede or violate the requirements of the Act. Thus, the provision (art. III, sec 1) reserving to the employer the right "to determine the size and composition of the work force, to hire and lay off or terminate employees, to create, change, combine or eliminate jobs" does not-contrary to Respondent 's contention-allow Respondent to discharge employees free from answerability under the Act, if for example such discharges are for union related activity The "management rights" provision here also expressly provides that "The company will not use the management rights clause or any part thereof to violate or circumvent any right given by this agreement." ° Brown had joined the Union in June, 1969 discharge he exceeded in seniority other persons of his work category who were retained in Respondent's employ; indeed, that he was the second most senior funeral director-embalmer in Respondent's organization.' When Brown inquired of Mrs. Belford the reason for his discharge and whether it was be- cause of something he had done, Mrs. Belford replied that there was no reason other than "financial" as indicated in the discharge letter he was handed. When Brown's colleague, White, who was with him and likewise discharged, opined that the discharges could not be effected in view of their seniority, Brown remarked, "[only] if she [i.e., Mrs. Belford] has just got Gene Smith left,"' but Mrs. Belford did not respond. At no time previous to this had Brown received any reprimand, censure, warning, or criticism in connection with his work. As of the date of the hearing of this case he had not been readmitted into Respondent's employ nor been offered such reemployment.' Charles F White, likewise a funeral director-embalmer of almost 25 years' experience following completion of specialty instruction and Oklahoma State licensure in both of those trades, entered Respondent's employ in that dual capacity on November 1, 1969. Like his colleague Brown, his work per- formance has been unexceptionable; indeed, it has evoked frequent praise not only from various supervisors10 but also Mrs. Belford." White joined the Union in April 1970. In the ensuing months White found himself the target of remarks from Mrs. Belford, Belford Branch Manager Deardorf, Pub- lic Relations Chief (and part-time embalmer) Trammell, and long-time chauffeur Conine to the effect that everything would be "a lot rosier" for him if he got out of the Union." Indeed, Deardorf-manager of the Belford branch where White was then working and thus White's immediate super- visor-gave White indications that he (White) was slated to take on some of Deardorf's responsibilities, and in the latter part of November 1970 indicated that "some of the other boys are getting out of the union" and suggested that White also leave the Union, in which event Deardorf could "do a lot more for you."" These remarks and indications had the effect of causing White to resign from the Union, which he did by letter of December 2, prepared by a secretarial employee at Respondent's 6th Street branch and about which White first informed Respondent's General Manager Nicholson. Early in January 1971, however, as a result of renewed dissatisfac- ' He was exceeded in seniority only by Smith. Respondent's proof estab- lished that funeral directors and embalmers, while possibly primarily as- signed to one of its three branches , nevertheless served wherever required ° See fn 7, supra The foregoing is based upon the largely undisputed testimony of Brown, who impressed me as an extraordinarily straightforward and persuasive witness, and whom I credit. Brown's testimony was in essence corroborated by White, who similarly impressed me as thoroughly credible 10 According to White's testimony, Heath and Deardorf, neither of whom, although testifying as Respondent's witnesses, disputed this Likewise undisputed by Mrs Belford, who also testified " Trammell and Conine were unexplainedly not produced by Respond- ent to refute or dispute this Mrs Belford merely denied knowing about White's Union affiliation or any change or contemplated change therein Deardorf, still in Respondent's employ as a supervisor, conceded he told White (in response to the latter's query as to whether White "should be in the Union or out of it," that "I (Deardorf) thought he would be just as well off without it " " Testifying as Respondent's witness, Deardorf, a supervisor still in its employ, merely denied making White any "promises" if he left the Union, while admitting telling White he "would be just as well off without it " According to Deardorf, the latter remark was prompted by White's inquiry to him whether he should remain in the Union Upon the record as a whole, including comparisons of testimonial demeanor as observed, I credit White's version of the described incident TULSA-WHISENHUNT FUNERAL HOMES, INC tions with certain of Respondent's personnel policies," White told Belford Branch Manager Deardorf that he was going back into the Union since "I need some protection." Dear- dorf urged White to "let me [i.e., Deardorff handle it, and I will take care of it." But when, in mid-January, Deardorf informed White that he (Deardorf) had spoken with Mrs. Belford (whose primary office was at 6th Street) concerning White's getting out of and back into the Union" and that White was being transferred from Belford to 6th Street, White's response was that he was "definitely getting back into the Union." White in fact did so on January 27 by formal letter accompanied by membership reinstatement dues. At the end of the following week, on February 5, White was summarily discharged. Like Brown, terminated with him, White had received no previous reprimand, censure, warning, or criticism concerning his work performance nor intimation that his termination was in the offing or under consideration. Like Brown, at the time of his discharge others16 in his work classification category but junior to him were retained in Respondent's employ. Like Brown, as of the date of the hear- ing of this case White had neither been readmitted into Re- spondent's employ nor offered reemployment." C. Respondent's Contentions and Related Evidence Respondent contends that its dismissals of Brown and White were wholly unrelated to their Union activity or sym- pathy; and that, on the contrary, they were prompted by purely economic considerations, while the selection of Brown and White-concededly senior to others in the same category who were retained in Respondent's employ-was because they were the least efficient employees. Mrs. Belford, who took on active operation of the business as a novice in mid-1970, testified on Respondent's behalf. She is not a funeral director or embalmer. She testified in general terms that after the Company accountant at the end of Janu- ary and beginning of February (1971) advised her to retrench, on February 5 she terminated Brown and White, as well as two supervisory employees." According to Mrs. Belford, it was she and she alone-notwithstanding her inexperience, totally unassisted and unadvised as to who should be the specific persons to be selected for termination-who selected and determined the persons who were to be discharged.19 1d Apparently triggered by the imperious attitude of Hazel Grady, Re- spondent's long-term employee and so-styled "office manager, and business manager Mostly secretary-treasurer of the corporation," in a disputation over White's vacation or time off in connection with his father's death in Chicago Since I was favorably impressed by the testimonial demeanor of White and, on the contrary, poorly impressed with that of Grady, who was openly hostile and visibly partial as well as allegedly suffering from conven- ient lapses of memory, I do not credit Grady's testimony to the extent it conflicts with that of White " I do not credit Deardorfs or Mrs Belford's denials concerning this Conceding that White warned him of his intention to rejoin the Union, Deardorf denied he told Mrs Belford about it It seems hardly likely that Deardorf, as branch manager, would fail to pass such information on to Mrs. Belford Deardorf conceded he did "discuss" with White the fact that White was to be transferred to 6th Street or that such a change was "being talked about being made " 's I e , Trammell at Belford (hired October 15, 1970) and Hammit at 6th Street (hired May 14, 1970) White's seniority and hire date was November 1, 1969 " Based primarily upon credited testimony of White, who impressed me as an extremely candid and convincing witness, corroborated in part by Brown, as indicated " The terminations of supervisory employees Nicholson ( general manager, whose previously tendered resignation Mrs Belford accepted) and Shrum are not here in question "Although Mrs Belford testified that Powers, the Company accountant, had "told" her to terminate 2 embalmers (as well as 2 in the "top wage 109 After first swearing she was wholly unaware of any Union activity by Brown or White20, Mrs. Belford later21 conceded that she had indeed learned in December 1970 from Re- spondent's General Manager Nicholson that Brown was the Union Steward.22 And, although Mrs. Belford likewise denied knowing that White had resigned from or was returning to the Union, testimony of Respondent's former General Manager Nicholson which I credit indicates clearly that Mrs. Belford was well aware of White's Union affiliation-and even, indeed, that she wanted to fire him (as well as Brown and another) on that account.23 Finally, as will be shown below, Mrs. Belford conceded that following the discharge of Brown and White, who had greater seniority than others in their work category who were not discharged, the remaining funeral directors and embalmers were not only required to work overtime (at higher-rate pay) but that another em- balmer (Enos Rash) was hired, allegedly on a "temporary" or "part-time" basis-without, however, offering such work to either Brown or White. What Mrs. Belford's (i.e., Respondent's) defense gets down to, therefore, is that (1) the employees in question were dis- charged for economic reasons of business necessity and that (2) these particular employees were singled out for discharge by Mrs. Belford because of their "inefficiency" or because they were least efficient. Each of these contentions-as to neither of which any factual support was provided by the testimony of Mrs. Belford herself-will now be considered. To bolster its contention of economic necessity for the discharge of Brown and White, Respondent produced its accountant, Cecil Powers. According to Powers, his review early in 1971 of figures submitted to him by Respondent showed a considerable decrease in "profits" for the last quar- ter compared only to the immediately preceding quarter of 1970, without, however, suggestion of any loss.24 It is evident that such crude figures in and of themselves establish little if anything. To begin with, as is well known, numerous factors go into the calculation of "profit," net as well as gross. Some, or in certain cases all, of these factors are or may be unrelated to the viability or economic health of the business, such as category"), Powers, also testifying as Respondent's witness, unequivocally swore that he did no such thing, and that he limited his discussion with Mrs Belford to "dollars" alone, without mention of employees or staff As to this testimonial discrepancy, I credit Company accountant Powers, who im- pressed me on the whole as a credible witness so far as his testimony went, and who in any event was certainly far more disinterested than Mrs Belford But not even Mrs Belford claimed that Powers or anybody else named or nominated names for her to discharge or to consider for discharge " During "cross-examination" by Respondent's counsel , while testifying as an adverse witness called by General Counsel. She added, however, "I could not swear to that at all " " While testifying, during defense, as Respondent's witness " It will be recalled that the Union had formally so notified Respondent by letter of December 10, 1970 Furthermore, Respondent's Office Manager Hazel Grady conceded that White had told her he would tear up his letter resigning from the Union if Respondent failed to give him his vacation. It is difficult to believe that Mrs Grady would have withheld such a matter from Mrs Belford " In this connection it will be recalled that I have already indicated that I credit White 's testimony that Belford Branch Manager Deardorf told White that Deardorf had passed on to Mrs Belford White's statement to Deardorf that White intended to rejoin the Union I have likewise credited White's further testimony that it had previously been made plain to him by various personnel of Respondent including Mrs Belford herself as well as Deardorf that everything would be "a lot rosier" for White if he left the Union '° According to Powers' gross calculations-derived solely from Re- spondent's own unverified alleged figures supplied to him-$16,993 "net profit" for the fourth quarter, as compared to $31,981 for the third quarter, of 1970 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increased salaries or drawings to executives," increased in- ventories, contingency sinking funds, etc. Thus, for example, it is noted that although Respondent's sales for the third quarter of 1970 were $154,856, they increased to $175,293 in the fourth quarter of that year, for which fourth quarter it is nevertheless claimed there was a lower "profit." But at least one possible explanation-none was actually established-for this alleged phenomenon could be that for some reason there was an unusually high profit in the third quarter of 1970, so that comparison therewith of the profit in the fourth quarter of 1970 may be misleading. No comparative data were pro- duced for any period other than the third and fourth quarters of 1970 at Respondent's choice, since it had and has posses- sion and control over these data, thus for practical purposes foreclosing meaningful comparisons of Respondent's eco- nomic figures and, therefore, sophisticated evaluation of its alleged "economic necessity" defense here. It is additionally noted in this connection that the accounting figures produced by Respondent here show (1) a $28,000 rise in merchandise acquisitions ($11,351 to $39,648) from the third to the fourth quarter of 1970-it would hardly be fair to claim a huge decline in a company's profits" if it has substantially in- creased its inventories; (2) "merchandise" is carried in the expense item labelled "costs" as well as in that labelled "mer- chandise" and since the "costs" increased almost $40,000 in the fourth over the third quarter of 1970, it may be that the "inventory" level then became even far substantially higher than shown by the "merchandise" differential (i.e., approxi- mately $28,000) alone-this being particularly true since Mrs. Belford herself testified that she was unable to account for the large differential in merchandise costs for the fourth quarter over the third quarter of 1970; (3) Company account- ant Powers conceded that the foregoing figures do not reflect levels of preexisting inventories-which are, indeed, sepa- rately listed as such (caskets alone over $23,000); (4) "salar- ies" are carried under the item labelled "costs" (showing an increase of almost $40,000 in the two quarters compared) as well as in the item labelled "salaries and wages" (showing an increase of some $15,000), as to which Company accountant Powers testified, "I just cannot account for it. I did not ana- lyze the payrolls, or look at them, or anything else, outside of totals ... these are figures that actually come in by the client"; (5) the fourth quarter 1970 figures in part reflect depreciation and other factors involving Respondent's recent major acquisition (around July or August, 1970) of its Bel- ford branch at around $300,000; (6) Company accountant Powers testified that he failed to bring to the hearing any data other than the described Company figures for the final two quarters of 1970, and that the Company figures for 1971 had not as yet been compiled at the time of the instant hearing in June 1971, allegedly because not yet received from Respond- ent since its office manager, Mrs. Grady, "has been in the hospital"26; (7) as conceded by Mrs. Belford as well as by Company accountant Powers, there has been no discernible " Respondent's witness Hazel Grady, who identified herself as its "office manager business manager [and] secretary treasurer," insisted that Mrs Belford draws "dollars" only but no "salary." Company account- ant Powers testified there was a $45,000 "distribution" for "executive draw- ings" for the second half of 1970. 16 Mrs. Grady subsequently testified on June 3 that she had entered the hospital on May 25 (at one time, however, she also said April 27) and that she did not know whether or not all of the figures for the first quarter of 1971 had been supplied to the accountant yet. Under all of the circumstances and the totality of the record as made, I am inclined to view with considerable skepticism this seeming claim of ignorance , or that the figures had not been supplied by June 1971, or that the figures-in final "accounting " form or not -if produced at the hearing would have supported Respondent's "eco- nomic" contentions here change in the volume of Respondent's business, i.e., funerals; and (8) as conceded by Company accountant Powers, Re- spondent's total annual net profit was substantially the same around $135,000 in 1970 as in the two preceding years. The foregoing, Respondent's failure to supply refined figures for a representative period for fair comparison purposes, and the equivocal nature in part of such limited figures as were sup- plied, as well as the conclusory nature of the testimony con- cerning the foregoing, for practical purposes precludes defini- tive factual ascertainment of such basic facts as would be essential to support findings that Respondent's discharge of Brown and White under the circumstances described was dictated by economic necessity as here claimed. I accordingly reject this defense as not established on the record here made by substantial credible evidence as required. We proceed, finally, to Respondent's defense that Brown and White were singled out for discharge because of their inefficiency or because they were the least efficient of Re- spondent's employees in their category. At the outset it is to be recalled that Mrs. Belford, concededly inexpert and a novice, insisted that it was she and she alone who made this selection for discharge. In her testimony, she vouchsafed no factual justification whatsoever for either of these particular choices, resting on her unsupported concluso claim that the choices were merely her personal "evaluat[o j" or judgment. Mrs. Belford concedes that the two terminated employees had greater seniority over nonterminated employees in the same category. Respondent's discharge letters to these two employees are silent concerning any alleged inefficiency or shortcoming in work performance, and Mrs. Belford conceded at the trial that she made no such claim or state- ment to either of the discharged employees-seemingly a most unusual circumstance in view of Respondent's present contention and one which, after careful consideration in the total context of the case, leads me to regard the present defense of "inefficiency" as an afterthought not worthy of being seriously entertained. I accordingly for that reason as well as others to be discussed reject that defense. It will be recalled that I have credited the testimony of Brown and White that at no time did their work performance meet with criticism of any sort but, on the contrary, with praise. Respondent's assistant general manager and super- visor, Heath, under whom Brown worked, conceded that he at no time reprimanded Brown in any way in connection with Borwn's work performance, and, further, that he was not consulted concerning Brown's discharge before it occurred- also a most unusual and suspicious circumstance in view of the record here presented. Similarly, the testimony of Re- spondent's witness, Belford Branch Manager Deardorf, un- der whom White worked, is wholly silent concerning any shortcomings in White's work. Testimony of Respondent's Former General Manager Nicholson Respondent's former General Manager Charles Nicholson also testified as General Counsel's witness under Federal in- terstate subpoena mandating his appearance from Montana. I found him to be a most impressive, candid, and straightfor- ward witness whose testimony rang true.27 Nicholson, who " I have so concluded after giving careful consideration to the circum- stances under which he left Respondent's employ upon Mrs Belford's ac- ceptance of his resignation Notwithstanding these circumstances, I am convinced Nicholson's testimony as here described is worthy of credence and truthful. I will not assume or infer , as Respondent would have me, that the mere fact that Nicholson's moving to Tulsa in 1970 to accept Respond- ent's employment as its general manager did not work out would cause Nicholson-who resigned voluntarily-to return under Federal subpoena to (Cont) TULSA-WHISENHUNT FUNERAL HOMES, INC was in overall charge of Respondent's operations at all three branches, under Mrs. Belford , testified that Mrs. Belford, with whom he had discussed the Union "very often" over a period of weeks in 1970 during contract negotiations, 29 ap- proached him in or around January 1971 and asked him whether the three embalmers who were Union members could be "fire[d]." Nicholson's response was that he did not think it a "good idea." Mrs. Belford thereupon asked Nichol- son to consult Company attorney Rheam, who agreed it was not a good idea.29 Shortly prior to this, upon receiving notice of the designation of Brown as union steward through the Union letter of December 10 to that effect-conceded by Nicholson to have been posted on the bulletin board-which designation Nicholson called to Mrs. Belford's attention, Mrs. Belford told Nicholson she was "upset" over this and "did not like it" because "she thought he was the strongest Union man they had" and that "had not Bill [Brown] been appointed Union steward she [Mrs. Belford] perhaps could have gotten rid of the Union." Indeed, as early as the latter part of November, Mrs. Belford had instructed Nicholson that "if there was any unpleasant duties to give them to the Union boys," a matter on which Nicholson also did not agree and was told by Mrs. Belford to consult Company attorney Rheam.30 And even before that, in the latter part of October, Belford Branch Manager Deardorf had reported to Nichol- son that he had spoken to White and "thought he [Deardorf] had White talked into getting out of the Union."" According to Nicholson-undisputed by Mrs. Belford-a few days before February 5, 1971 (a Friday) Mrs. Belford told him that "things were not going right," that "the firm was, perhaps, losing money,"" and that the price of caskets should be raised. To the latter suggestion Nicholson demurred, stating that such a problem should be solved by reductions in force in accordance with seniority, even though it would mean hurting some of Nicholson's personal friends; and Nicholson himself offered to resign. Mrs. Belford refused to accept Ni- cholson's resignation although she did so, unexpectedly and without notice a few days later, on February 5), and she stated she personally would make the selections." Mrs. Bel- testify periuriously and to fabricate under oath so as deliberately to wreak vengeance and injury upon Respondent Nothing other than surmise and conjecture would warrant any such supposition here Nicholson has not been shown to have any interest in the outcome of this case , unlike Mrs Belford, who is, of course , directly affected and interested " It will be recalled that these negotiations culminated in the contract effective for 1 year from November 6, 1970 19 Although denied by Mrs Belford, because of comparative testimonial demeanor observations I credit Nicholson Rheam did not testify '0 Although these episodes are all denied by Mrs Belford, for reasons already given I credit Nicholson 11 Undisputed by Deardorf, who testified as Respondent's witness 11 Compare the undisputed testimony of Company accountant Powers that the Company was not losing money " Mrs. Belford conceded that she did not consult with Nicholson, her own general manager, in her choice of Brown and White for discharge Under all of the circumstances shown , this was a most unusual and suspi- cious procedure. It may further be observed in connection with Respond- ent's "inefficiency" defense that article VI, section 2, of the parties' collec- tive agreement provides " discharge by reason of an employee's unsatisfactory work or conduct over a period of time , shall not be effected until the Employer shall have notified the employee, in writing, with a copy of the same to the union Such writing shall constitute a warning notice, and if the conduct or reason stated in the warning notice shall recur, the Em- ployer shall be entitled to take disciplinary action up to and including discharge." No claim is made that this procedure was in any way observed While I recognize that this is not an action or proceeding for violation of the collec- tive agreement, nevertheless I believe that Respondent's total failure to observe, or total obliviousness to, a provision but recently entered into by it throws some light on the credibility of its current contention that the ill ford said nothing adverse about Brown or White, on the contrary, she had always spoken "very highly" to Nicholson about Brown and White. As already indicated, my tes- timonial demeanor observations of Nicholson impressed me strongly with his sincerity and truthfulness, and I accordingly credit his described testimony. Following the February 5, 1971, discharge of Brown and White, Respondent hired another embalmer, Enos Rash as a "temporary" employee." Mrs. Belford conceded that she did not offer this employment to either Brown or White.75 Fur- ther according to Mrs. Belford, following the discharge of Brown and White, all of the remaining embalmers were re- quired (as previously) to work overtime.36 It may finally be observed that it was established that, in consequence of the discharges of Union Steward Brown and newly rejoined Union member White under the circum- stances shown, on February 5, 1971, and the resignation from the Union of two other employees (Funeral Director McLe- more and Chauffeur Conine) shortly prior thereto, the Union membership of Respondent's 12 bargaining unit employees was on February 5 thereby reduced to 3 members as against 7 nonmembers; since, absent these changes, the figures would be 7 members and 5 nonmembers, the indicated changes brought about at least a decisive further reduction if not overturn of the original Union majority. Under all of the circumstances shown, I reject Respond- ent's contention that the discharges in question were effected by reason of any inefficiency of unsatisfactory work perform- ance by Brown or White. D. Resolution and Rationale Although an employer may, as contended by Respondent, discharge an employee "for good cause, or bad cause, or no cause at all" (N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5), he may not discharge an employee in violation of the Act as, for example, for the employee 's Union related activity or discharges here in question were for inefficiency, when Respondent itself made no such statement or claim at the time it effected those discharges J° By letter of Mrs Belford dated April 19, 1971, indicating that Rash worked 28 hours in the last 10 days of April and 98 hours in May 1971, both exclusive of overtime According to Mrs Belford, Rash also worked for Respondent "off and on" before April 20, 1971 " According to Mrs Belford, she did not offer this employment to Brown because "rumors" had reached her ears that he had said he was going to do all he could to wreck her business, and not to White because of his "ineffi- ciency " Brown conceded having made such a remark but expressly qualified by "if this is allowed to happen to us if this discharge stands." I have already had occasion to comment upon and discredit Mrs Belford's allega- tions of "inefficiency," which she in this instance apparently limited to White 16 Since the amount of overtime worked by "temporary" new hire Rash has not been supplied, nor has that of embalmer Trammell, it is not possible to determine whether their combined overtime equalled or surpassed the combined normal working hours (with or without overtime) of discharged employees Brown and White The same applies to Heath and Cypert, who, although supervisors, also are embalmers (Cypert is considered the "chief embalmer"), Respondent's witness, Office Manager Ha7el Grady, was una- ble to explain why no embalming work hours of Heath or Cypert have been supplied here for analysis purposes, she attempted to excuse the same failure in relation to Trammell by indicating that he also does other work (i e , public relations) as well as embalming Likewise no overtime hours have been supplied by Respondent, for analysis purposes here, relating to Hensley or McLemore-although they each, according to Grady, performed over- time-for the ostensible reason that they were only funeral directors and not embalmers However, Brown and White were also funeral directors and not merely embalmers, and there is no reason to assume that all of their time or overtime was spent in embalming rather than in funeral directing As to Trammell, who was hired in October 1970 and is thus substantially junior to Brown and White, Mrs Belford conceded that he has done more embalm- ing in 1971 than prior thereto 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sympathy. Nor do an employer's "managerial prerogatives," under a collective agreement such as here, enlarge the em- ployer's discharge powers so as to free him from the Act's limiting requirements. In arriving, as I do, at the findings and conclusions herein that Respondent's discharge of Brown and White under the circumstances detailed were in violation of the Act and that its alleged reasons therefor were and are pretextual, I have given weight to the following among other considerations: the long technical qualifying experience of each of the dischar- gees, the absence of any untoward episode or incident reflect- ing upon the capability, qualification, or work performance of either of the dischargees; the absence of so much as a single prior censure, warning, criticism, rebuke, or other indication of dissatisfaction by Respondent with the work performance of either of the dischargees, Mrs. Belford's announced pro- clivity and desire-as stated by her to Respondent's General Manager Nicholson-to rid herself of Union adherents, spe- cifically Brown and White, Respondent's overt attempts, such as through its Belford Branch Manager Deardorf, to detach White from the Union, the fact that both of the dis- chargees were, unlike some other employees in the same work category, overtly active in or affiliated with the Union, in the case of Brown, the fact that he was the union steward and the apparent kingpin of the union organization and his activities as such in the period immediately antedating his discharge, in the case of White, the circumstances attending his resigna- tion from the Union in December at Respondent's urging, as well as the circumstances surrounding his rejoining the Un- ion in January, immediately preceding his precipitate dis- charge, the suddenness and precipitate nature of the dis- charges, the fact that Respondent failed to observe seniority in the case of these two discharges, but while discharging Brown and White retained in its employ other employees of the same job classification and less seniority, that although claiming economic necessity as the reason for the discharges, there was in fact no diminution in Respondent's business, the fact that another embalmer was hired subsequent to the dis- charges here in question, without offering such employment to either of the dischargees; that the alleged defense of "eco- nomic necessity" was not factually established, that Respond- ent failed to establish factual basis for singling out the par- ticular two, or either of, the dischargees, the compelling testimony of Respondent's former General Manager Nichol- son in substantial disproof of Respondent's contentions, Re- spondent's unexplained failure to produce as witnesses cer- tain persons in its employ and presumably under its control to refute or dispute credible testimony of General Counsel's witnesses, Respondent's unexplained or inadequately or unacceptably explained failure to produce certain records or data in its possession or control bearing upon its alleged "economic necessity" defense; seeming prevarications, incon- sistencies, or contradictions in or between the testimony of certain of Respondent's witnesses; and my comparative tes- timonial demeanor observations. As has frequently been pointed out, in assessing an em- ployer's true reason for the discharge of employees engaged in protected concerted activity, important clues include the leadership or prominence in that activity of the discharged employees, N.L.R.B. v. Sequoyah Mills, Inc., 409 F.2d 606 (C.A. 10); N.L.R.B. v. Council Manufacturing Corporation, 334 F.2d 161, 164 (C.A. 8); the otherwise satisfactory per- formance of the discharged employees, N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 366 (C.A. 6); the ab- sence of discharge of other employees in the same work cate- gory, N.L.R.B. v. Nabors, 196 F.2d 272, 275-76 (C.A. 5), cert. denied, 344 U.S. 865; the employer's continued need for such employees, N.L.R.B. v. Local 776, IATSE (Film Edi- tors), 303 F.2d 513, 519 (C.A. 9), cert. denied 371 U.S. 826; the timing of the discharges, N.L.R.B. v. Sequoyah Mills, Inc., supra; Tele-Trip Company v. N.L.R.B., 340 F.2d 575, 579-80 (C.A. 4); N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829; the precipi- tate nature of the discharges vis-a-vis the employer's discov- ery of the discharged employees' activities, Tele-Trip Com- pany v. N.L.R.B., supra; N.L.R.B. v. Council Manufacturing Corporation, supra; the replacement of the discharged em- ployees, N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 235 (C.A. 8); N.L.R.B. v. Davidson Rubber Company, 305 F.2d 166, 168-69 (C.A. 1); N.L.R.B. v. Local 776, IATSE (Film Editors), supra; N. L. R. B. v. Montgomery Ward & Co., supra ; the employer's implausible explanations for its action, N.L.R.B. v. Harry F Berggren & Sons, Inc., 406 F.2d 239, 245-46 (C.A. 8), cert. denied 396 U.S. 823; and the em- ployer's unexplained failure to support its alleged justification for "suspicious" discharges through its records and available witnesses. In this case, these and more elements are present, thus truly constituting a case where Respondent's conten- tions simply "fall[s] to stand under scrutiny," N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9), and cases cited. Even were it to be assumed arguendo that Respondent had a valid "economic" basis for reducing its work force at the time and under the circumstances described, I would still find and conclude that its selection of the particular two em- ployees here involved was, in view of their seniority and other factors, discriminatory and motivated in at least essential and controlling part because of their Union related activities, ac- tions, and sympathies, and for that reason (even alone) in violation of the Act. Cf. Town & Country Manufacturing Company v. N.L.R.B., 316 F.2d 846, 847 (C.A. 5); Regency Electronics, Inc., 169 NLRB 223, 231-32. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. At all material times, Tulsa-Whisenhunt Funeral Homes, Inc., Respondent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, Service Employees International Union, AFL-CIO, Local 245, Charging Party herein, has been and is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Jurisdiction is properly asserted in this proceeding. 4. On February 5, 1971, Respondent terminated the em- ployment of, and has since failed duly to reinstate to their former or substantially equivalent positions, its employees William R. Brown and Charles F. White because they joined or assisted the Union and engaged in lawful concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection in exercise of rights guaranteed to them by Section 7, thereby discriminating against them in regard to the hire, tenure and terms and conditions of their employ- ment and thereby discouraging membership in a labor organi- zation, and, further, thereby interfering with, restraining, and coercing its employees, constituting unfair labor practices in violation of Section 8(a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY To remedy the unfair labor practices comprising the viola- tions of Section 8(a) (3) and (1) which have been found, I shall recommend the usual cease-and-desist order and affirmative relief customarily ordered in cases of this variety involving discriminatory discharges and failures to reinstate, and inter- TULSA-WHISENHUNT FUNERAL HOMES, INC. 113 ference, restraint, and coercion. The recommended Order will, accordingly , require Respondent to cease and desist from the unfair labor practices found and to offer the dis- criminatorily discharged employees immediate and full rein- statement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered in consequence of their unlawful ter- mination on February 5, 1971, by payment to them of a sum of money equal to that which they normally would have earned as wages from February 5, 1971, to the date of Re- spondent's offer to reinstate them to their former or substan- tially equivalent positions , less their net earnings if any during such period, backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also be required to make availa- ble necessary records for computation of backpay." In view of the fact that Respondent's discharges under the circumstances described are unfair labor practices of a char- acter striking at the fundamental roots of the rights guaran- teed to employees by the Act,38 I shall also recommend inclu- sion in the Order of a requirement that Respondent cease and desist from infringing in any manner upon the rights of any employees under Section 7 of the Act. The Order shall also provide for the usual notice posting and for appropriate notification to any affected employee who may be in the Armed Forces of the United States. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the act, I hereby issue the following recom- mended" ORDER It is hereby ordered that Tulsa-Whisenhunt Funeral Homes, Inc., its officers , agents, successors, and assigns, shall: 3' Subsequent to the conclusion of the hearing and receipt of briefs, on July 30, 1971, the Trial Examiner received from Respondent a July 28 motion "to reopen the case for the purpose of hearing additional evidence," namely that both Brown and White on June 21 accepted Respondent's June 16 offer of "reinstatement" and on June 22 "returned to work" due to the fact that a funeral director -embalmer had "quit" and "because of vacations', Respondent's motion is opposed by General Counsel It is unnecessary to reopen the hearing herein for the purpose of receiving such information-regardless of what meaning is to be accorded to the expressions (e g , "because of vacations ") quoted above from Respondent's motion papers At most, the indicated circumstances , whether or not they constitute full and unqualified reinstatement , are pertinent only to the de- gree of their impact upon Respondent 's compliance with the remedy here provided in this proceeding , which is of course and indeed primarily fraught with public interest and purpose and which also affects other employees in addition to the immediate dischargees Respondent's July 28, 1971 , motion to reopen the case is accordingly hereby denied I have accorded the forego- ing circumstances no significance one way or the other in regard to the merits in arriving at any finding or conclusion herein Cf NL R.B v Entwistle Mfg Co, 120 F.2d 532, 536 (CA 4) 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 1. Cease and desist from: (a) Discouraging membership in or lawful activity on be- half of Service Employees International Union , AFL-CIO, Local 245, or any other labor organization, by discharging, terminating, laying off, or suspending , or by failing or refus- ing to reinstate to his former or substantially equivalent job, any employee because he joined or assisted a labor organiza- tion or engaged in concerted activity for the purpose of collec- tive bargaining or other mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organ- ization ; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions which are neces- sary to effectuate the policies of the Act: (a) Offer to William R. Brown and Charles F. White im- mediate and full reinstatement to their former or substan- tially equivalent positions (if such reinstatement has not al- ready been effected), without prejudice to their seniority or other rights and privileges; and make each of them whole for any loss of pay suffered in consequence of the discrimination against him, in the manner set forth in the "Remedy" herein. In the event that any of said employees is presently serving in the Armed Forces of the United States, immediately notify him of his right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (b) Preserve and, upon request, make available to the Board or its agents for examination and copying , all payroll records, social security payment records , timecards, person- nel records and reports, and all other records necessary to determine the amounts of backpay due and the extent of compliance with the terms of this Order. (c) Post at each of its premises and branches in Tulsa, Oklahoma, copies of the attached notice marked "Appendix B."40 Copies of said notice, on forms provided by the Board's Regional Director for Region 16, shall , after being signed by Respondent's authorized representative, be posted in each of said locations by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days there- after in conspicuous places including all places in each of said branches where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from receipt of this Decision , what steps have been taken to comply herewith." '0 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 OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " " 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 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith "