Warehouse Union Local 860, Teamsters

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehouse Union Local 860, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Admiral Corporation and Transcontinental Music Corporation ) and Carlos A. Callejas. Cases 20-CB-2407 and 20-CB-2408 January 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On October 5, 1971, Trial Examiner David E. Davis issued the attached Decision in this proceeding. There- after, the Respondent filed exceptions and a supporting brief; the General Counsel filed cross-exceptions, a sup- porting brief, and an answering brief; and the Respond- ent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' to the extent consistent herewith.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Warehouse Union Local 860, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Admiral Corpo- ration and/or Transcontinental Music Corporation to discriminate against employees in violation of Section 8(a)(3) of the Act. ' While agreeing with the Trial Examiner that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act, we find that the rationale of Hod Carriers' and Construction Laborers' Union, Local No. 300, AFL-CIO (DesertPipeLineConstruction Co.), 145 NLRB 1674, 1678, is more directly in point than that of the Miranda case, cited by the Trial Examiner We therefore find it unnecessary to rely on the Miranda rationale for our af- firmance of the Trial Examiner's Decision ' We shall herein order that Carlos A Callejas and Gladys Callejas be made whole for any loss of pay each may have suffered from January 21, 1971, and January 19, 1971, the respective dates of the discrimination against them, until 5 days after March 17, 1971, when the Respondent advised them and their respective employers, in writing, that it had no objection to their reemployment United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 633, AFL-CIO (Joseph E Tabor, et al), 173 NLRB 1333. Backpay shall be computed on a quarterly basis with interest at 6 percent per annum as provided in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716 195 NLRB No. 25 (b) In any like or related manner restraining or co- ercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that those rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of em- ployment as authorized in Section 8(a)(3) of the Act. 2. Take the following action which the Board finds will effectuate the policies of the Act: (a) Make whole Carlos A. Callejas and Gladys Cal- lejas for any loss of pay each of them may have suffered by reason of the discrimination against them caused by the Respondent, in the manner set forth in this Deci- sion. (b) Post at its business offices and meeting halls in San Francisco, Brisbane, and Burlingame, California, copies of the attached notice marked "Appendix."3 Co- pies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 20 signed copies of the notice attached hereto marked Ap- pendix for posting by Admiral and Transcontinental at their premises in Brisbane and Burlingame, California, respectively, in places where notices to employees are customarily posted. Copies of the notice, to be fur- nished by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be forthwith returned to the Re- gional Director for such posting. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' In the event that this 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 " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause Admiral Corporation and/or Transcontinental Music Corporation to discriminate against employees in violation of the National Labor Relations Act. WAREHOUSE UNION LOCAL 860, TEAMSTERS 69 WE WILL NOT in any like or related manner restrain or coerce any employees of Admiral and/or Transcontinental in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act except to the extent that those rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE HAVE notified Admiral in writing that we have no objection to Admiral's reinstating Carlos Callejas to his former job. WE HAVE notified Transcontinental that we have no objection to Transcontinental's reinstat- ing Gladys Callejas to her former job. WE HAVE notified Carlos Callejas and Gladys Callejas in writing that we have written as stated above to Admiral and Transcontinental. WE WILL reimburse Carlos Callejas and Gladys Callejas for any pay they lost, together with inter- est at 6 percent. WAREHOUSE UNION LOCAL 860, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) Dated By (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, 13018 Federal Building, 450 Golden Gate Ave- nue, Box 36047, San Francisco, California 94102, Tele- phone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: These consolidated cases were tried before me on June 8 and June 22, 1971, at San Francisco, California, pursuant to charges filed by Carlos A. Callejas on January 29, 1971, and a consolidated com- plaint issued on April 9, 1971.' The amended consolidated complaint alleged in substance that on or about January 19, 1971, Warehouse Union Local 860, International Brother- ' Amended on May 18, 1971 hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Respondent, violated Section 8(b)(2) and (1)(A) by causing Transcontinental Music Corporation, herein called Transcontinental, to terminate an employee, Gladys Callejas, because of the protected union activities of Carlos A. Callejas and that on or about January 29, 1971, Respondent caused Admiral Corporation to terminate Carlos A. Callejas because of his protected union activities. The answer while admitting certain aspects of the consolidated complaint denied that Respondent had engaged in any con- duct violative of the Act. Subsequent to the hearing the Gen- eral Counsel and Respondent filed helpful briefs. Upon the entire record' in these cases, from my observation of the demeanor of the witnesses, and after careful considera- tion of the briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS INVOLVED It is admitted that Transcontinental, a New York corpora- tion with a place of business in Burlingame, California, is engaged in the business of selling phonograph records at wholesale; that Admiral Corporation, a Delaware corpora- tion with a place of business located in Brisbane, California, is engaged in the business of wholesale and retail sales of appliances; that each of the above named enterprises annually purchased and received goods and products valued in excess of $50,000 at their respective California locations directly from points located outside the State of California. It is ad- mitted and I find that at all times material herein Transconti- nental and Admiral are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Respondent is a labor organi- zation within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Callejas Carlos A. Callejas testified that he was employed by Admi- ral at Brisbane, California, from May 1968 until his termina- tion on January 29, 1971; that he was a member of Respond- ent; that he was terminated on a previous occasion, July 13, 1970, but was reinstated after he filed unfair labor practice charges against Respondent on the ground that it failed to file and prosecute a grievance concerning his termination; that upon reinstatement he withdrew the charges; that sometime in November 1970, at a party in Westlake, California, he met Dolores Rudden, an employee of Transcontinental, where Gladys Callejas, wife of Carlos, was employed; that during the course of a conversation with Rudden, the subject of Callejas" reinstatement came up and Rudden said that Aguirre' got Callejas reinstated to his job. Callejas replied that Aguirre did not get him his job back, that it was the National Labor Relations Board who got him his job back. Callejas further testified that on January 5, 1971, about 2 p.m. Foreman O'Neal,' his immediate supervisor, called him The General Counsel and Respondent each filed unopposed motions to correct certain errors in the transcript of the hearing The motions are hereby granted. "Patterson" in the transcript is erroneously spelled on occa- sion as "Paterson " Hereafter Carlos Callelas will be referred to as Callelas and Gladys Callejas will be referred to as Gladys Henry S Aguirre, president of Respondent Eldon D O'Neal, Admiral's warehouse foreman 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this office where he found O'Neal, Aguirre, and Patterson.' Upon his arrival, Aguirre speaking to O'Neal, asked if he (Aguirre) ever got anything from the Company, O'Neal re- plied in the negative. Aguirre then turned to Callejas and said that Dolores Rudden had told him that he (Callejas) was telling everybody that Aguirre was getting paid by the Com- pany. Callejas denied that he said that. Aguirre then said that Callejas may be his enemy but that Aguirre had a lot of friends and that Callejas would be sorry because he would be destroyed. Callejas again denied that he had made such state- ments, saying he knew how far he could go. Callejas then returned to work and Patterson and Aguirre remained in O'Neal's office for another 15 or 20 minutes. On January 18, 1971, O'Neal handed Callejas a copy of the following letter: January 18, 1971 Henry S. Aguirre, President Warehousemen's Union Local 860 1139 Mission Street San Francisco, California Subject: Carlos Callejas His effectiveness as of late has been of two intervals, which are Slow and Stop ... C.C. Files Carlos Callejas /s/ Ed O'Neal Ed O'Neal Warehouse Manager Callejas asked him what it was all about. O'Neal told him to read it and see Mr. Aguirre. The next day Callejas asked O'Neal why he didn't lay him off. O'Neal replied that Callejas knew that he couldn't lay him off, whereupon Callejas again asked why. To this O'Neal replied. "That is the way the Union wants it." On January 29, 1971, about 5:00 p.m., O'Neal handed another letter to Callejas: General Counsel's Exhibit No. 3 reads as follows: January 29, 1971 Mr. Henry S. Aguirre President Warehousemen's Union Local 860 1139 Mission Street San Francisco, California Subject: Carlos Callejas Due to a general slow down of incoming and outgoing traffic in our warehouse , we are terminating the above individual as of the end of our working day January 29, 1971. Very truly yours, Ed O'Neal Warehouse Manager cc: Carlos Callejas Files After reading the letter, Callejas told O'Neal that before he could be laid off, Jerry Villanneva had to go because he had much more seniority than Villanneva. O'Neal replied, "that is the way Mr. Aguirre wants it. Go see him." After leaving work that evening, Callejas called the union hall but was unable to reach Aguirre. He did speak to Patter- son and told him about his layoff. He called several more times and left word for Aguirre to call him but Aguirre did not return his calls. On February 2, Callejas received by mail a copy of another letter,' which reads as follows: ' Robert Patterson, dispatcher and business representative of Respond- ent 'GCExh4 February 1, 1971 Mr. Henry S. Aguirre President Warehousemen's Union Local 860 1139 Mission Street San Francisco, California Mr. Aguirre: Subject: Carlos Callejas Due to the fact that there was not any improvement in his work, Carlos Callejas was terminated at the end of the working day, Friday, January 29, 1971. EDO:gw cc: File Carlos Callejas E.D. O'Neal Warehouse Supervisor On cross-examination, Callejas acknowledged that Aguirre had secured jobs for him and his wife and that they had a good relationship up to the time of his first discharge in July 1970. It was developed that prior to his July discharge Cal- lejas had gone on a scheduled two week vacation to Mexico and that at the end of that time he was in a hospital in Los Angeles; that he, his wife, and a social worker employed by the hospital had called Admiral, Callejas' employer, inform- ing it of his hospitalization; that the Union was also called and informed; that he was able to return to work on July 29 about 3 weeks after his vacation period had expired; that he went to Admiral to go to work and was told by O'Neal that he had been discharged; that O'Neal did not tell him why he lost his job but told him to see Aguirre; that he went to see Aguirre who told him that the Admiral people said that they had been informed of his hospitalization; that Callejas told Aguirre it was not true as he had called and told Frank Sisler' and O'Neal who informed him that he could stay out 2 or 3 weeks; that Aguirre told him to get a statement certifying his hospitalization; that he flew back to Los Angeles and secured such a statement and gave it to Aguirre; Aguirre said that there was nothing he could do as the time limit of 7 days after discharge to file a grievance under the contract' had already expired; that thereafter he filed an unfair labor practice charge against the Union; and that he was then reinstated and withdrew the unfair labor practice charge. It was further developed that an agent of the National Labor Relations Board, after discussing the situation with Aguirre, told Cal- lejas to contact Aguirre about reinstatement and that Aguirre thereafter interceded with Admiral officials before Callejas was put back to work. During his cross-examination, Callejas reiterated his denial that he had ever accused Aguirre of receiving or taking things from Admiral. Callejas recalled that Aguirre had threatened to file slander charges in court against Callejas but that Aguirre had not threatened him with the loss of his job. Callejas further testified that O'Neal had never told him his work was too slow but that when he got the first letter O'Neal told him to try to do better. Callejas acknowledged that he knew the labor agreement required notification to the Union if Admiral wished to terminate an employee; that the Union's practice when this occurs was to advise the employer to give the employee a warning letter. Callejas admitted that he knew that Aguirre was on vacation and out of town from January 15 to 29, 1971. Callejas further testified that when he received the letter dated January 29, 1971 he understood that he was being laid off because of insufficient work and that he filed unfair labor practice ° Admiral's personnel manager. See Resp Exh l WAREHOUSE UNION LOCAL 860, TEAMSTERS charges the same day because he was unable to contact Aguirre.10 At the conclusion of Callejas' testimony, counsel for Re- spondent and the General Counsel agreed to the admission in evidence of a letter," dated March 17, 1971, from Re- spondent's attorney to Callejas in which Respondent offered to prosecute the Callejas' grievances if the employers were willing to waive the time limits of the contracts.12 Eldon D. O'Neal, warehouse foreman employed by Admi- ral and whom I find to be a supervisor within the meaning of the Act," testified that on January 5, 1971, about 10 a. in., Aguirre and Patterson came to his office and asked him to call Callejas. When Callejas arrived, O'Neal asked if he should wait outside but Aguirre told him to stay saying, "I want you as a witness." Aguirre then said that he had heard that ru- mors were circulating to the effect that Admiral was giving him merchandise and that Callejas had been to a party where he had said that he had seen stuff going to Aguirre. Denying that he had ever received anything from Admiral or that he had ever purchased anything from Admiral, Aguirre asked O'Neal to tell what he knew about it. O'Neal replied that he had never seen anything with Aguirre's name. At the end of the meeting, Aguirre said that if he confirmed that Callejas had made these statements he would bring a slander suit against him. O'Neal testifying further said that before he wrote the letter dated January 18, 1971,'° he had talked to Patterson and Aguirre about Callejas; that it was possibly a month or two earlier when he complained about Callejas' work and that he was told by Aguirre and Patterson that in order to discharge Callejas a warning letter had to be written. O'Neal wrote the second letter on January 29 because "there is a second letter supposed to follow up after a warning letter." O'Neal denied' that he discussed Callejas with any Union official from the time of the first letter" to the second letter. 16 He later modified this testimony by stating that Patterson had talked to him on two occasions. Once Patterson had called him and asked if he had written another letter after the letter of January 18, and in another conversation Patterson asked him when he was going to write another letter about Callejas. Asked to explain the reason for two letters, one on January 29 and the one on February 1, O'Neal, after some evasive and vague answers, stated that he received a telephone from Aguirre after the letter dated January 29 was received by the Union and that Aguirre told him the reasons stated in the letter of January 18 and those in the January 29 letter did not correspond. Aguirre therefore asked O'Neal to write another " The foregoing summary of Callejas' testimony is credited I find Cal- lejas to be a forthright witness who was desirous of telling the truth I also credit Callejas' testimony that on one occasion he was told by O'Neal "that is the way the Union wants it" and on another occasion "that is the way Mr Aguirre wants it " " Resp. Exh 2, the second page of this letter is marked erroneously as Resp. Exh 3, this designation is stricken To further correct the record, Reap. Exhs 4 and 5 are herewith renumbered Resp. Exhs. 3 and 4 respec- tively. 11 Respondent in its brief confines its comments on this letter to a state- ment that Callejas declined the Union's offer to arbitrate his discharge and that this indicates that the Union at no time directly or indirectly requested Callejas' discharge As will appear later in this decision, I do not make this deduction nor accept Respondent 's reasoning " O'Neal's supervisory status actually was not in issue His testimony conclusively shows that he possessed authority to responsibly direct other employees and to effectively recommend discharge " G C Exh 2 " Dated January 18, 1971, G C Exh 2 " Dated January 29, 1971, G C Exh. 3 71 letter." O'Neal further explained that after he had written out the letter of January 29 in longhand, he had handed it to the secretary but one of the salesmen apparently had changed the wording of the letter. O'Neal, however, conceded that he had read the typewritten letter of January 29 in its final form before it was mailed. During examination by counsel for Respondent, O'Neal said Callejas "slowed down on different jobs of putting up orders." With regard to Callejas' previous termination in July 1970, O'Neal said that they were busy at the time and when they received word that Callejas would not be back for ' 3 weeks it was decided to terminate him. O'Neal denied talking to Callejas about reinstating him after the July discharge but said that he talked to Callejas when he reported for work. He told Callejas that as far as he was concerned he was ter- minated. After Callejas was reinstated, an Admiral official told O'Neal that talks between the National Labor Relations Board and the Union had resulted in an agreement that Cal- lejas would withdraw charges he had filed with the National Labor Relations Board and be reinstated to his job. O'Neal offered a vague statement that he had during the past year spoken to both Aguirre and Patterson approxi- mately 4 or 5 times concerning Callejas, telling them that Callejas was not performing his work and that he was told by them that a letter could be written as required by the labor agreement and that if Callejas' work " doesn't keep up" he could be terminated. O'Neal continuing his testimony stated that when he gave Callejas a copy of the January 18 letter and Callejas asked what it was for, he told Callejas that he would have to see the Union; asked by counsel for Respondent why he told that to Callejas, O'Neal replied: Because through the letters and that, and then he was supposed to go through the union-to get a letter to go through the union for termination or what they are go- ing to have.18 Thereafter O'Neal testified in response to Respondent Counsel's questions concerning what was intended by the January 29 letter, as follows: Q. (By Mr. Silbert) Was it your intention to terminate him, or was it your intention to lay him off? A. Lay him off. Q. Lay him off? A. Yes. Q. All right. Now, when you sent-that is, with the right to be rehired? A. Yes. Q. Now, the February 1st letter says that he is ter- minated, essentially, because there was no improvement in his work. A. Right. Q. When you sent that letter, did you intend to fire him-terminate him or lay him off? A. Fire him. Q. Now, why did you change your mind between January 29th and February 1st? A. Well, as far as that, it was in my own mind to do it. Q. To do what? A. To fire him. O'Neal, after further examination , contradicted his previous testimony by stating that he intended to discharge Callejas on January 29 rather than lay him off and then added that no one from the Union ever suggested, ordered, advised, or ap- " I credit O'Neal's testimony in this regard " This incomprehensible statement does not result from faulty transcrip- tion It demonstrates O'Neal's bewilderment when asked to explain his actions 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proved Callejas' discharge and that the decision was made by him alone because Callejas' work was too slow. O'Neal's testimonial account suffers from numerous con- tradictions. This condition arises in part from his willingness to color his testimony in order to place Respondent in what he considered a more favorable light. Running through his entire testimony is the significant fact that O'Neal, although a management supervisor, was subservient to Aguirre and Patterson and wrote a series of letters designed to discharge Callejas at their request. That he somewhat bungled the de- tails by sending out the letter of January 29, 1971, merely demonstrates his lack of understanding of the plan in which he was enmeshed. In view of all the circumstances, I credit some aspects of O'Neal's testimony even though changed and contradicted by him as a result of persistent questioning by Respondent's Counsel. Henry S. Aguirre, President of Respondent, testified that the membership of Respondent averages 3,500 and that labor agreements were currently in effect with 200 to 250 employers while approximately 200 other employers are dealt with through various associations; that employers, as a general practice, call Respondent and notify it of pending layoffs; that quite often when an employer is about to lay off or terminate an employee because of inefficiency Respondent is called; that Aguirre, on such occasions, tells employers who complain about the deficiencies of an employee, Look, if this man is not doing his work-write us a letter -if this continues give him a letter and send us a copy -It is up to the company to discharge the man or keep him. According to Aguirre, if the employee feels he has been treated unjustly he comes to Respondent and files a grievance, whereupon a hearing is set up. Aguirre explained that em- ployers are not required under the terms of the labor agree- ments to send warning letters but layoff and termination letters are required. Recalling Callejas' discharge in July 1970, Aguirre testified that he first learned of the discharge when Callejas came to his office trying to get his job back; that earlier he had re- ceived a call from Gladys who told him that her husband had suffered a hemorrhage and was in the hospital; that he told her to call the company because he couldn't do very much; that when Callejas came to his office, Callejas said that he had been taken sick while on vacation and was unable to return to work on his scheduled day; that he returned 2 or 3 weeks later and was then told that he was discharged; that Aguirre told Callejas to get a doctor's certificate because the contract required one when an illness was longer than 3 days; that about a week later Callejas returned to the office, threw a card on the table, and said, "this is my attorney. He is going to talk to you"; that Callejas did not show him a doctor's certificate; that he talked to O'Neal about getting Callejas' job back." Aguirre's testimony continued: Q. All right. Did you have a discussion with anyone else from Admiral about getting Carlos' job back? A. Yes. Q. Who was that? A. I had a call from Chicago, from Mr.-I believe you know the name-I don't deal with him so often that I can think of his name. He is the head man in Chicago of Admiral. Q. DeArco? A. DeArco. 19 I credit Callelas' testimony that when he returned he showed G.C. Exh. 5 to Aguirre. Q. And Mr. DeArco called you from Chicago? A. Right, because I had told Ed O'Neal to put him back to work. Q. And what was- A. And I told them that Callejas was going to go down there, and he was going to be put back to work. So I guess he relayed the message to DeArco. And DeArco called me from Chicago. And I told him, "Look, put the guy back to work, because I think the guy was sick, and he is justified in getting his job back." Q. What was DeArco's-what did he say about it? A. He said that they didn't want him back, because, anyway, they wanted to get rid of this man, that he wasn't doing his work. And that is something else. Aguirre then testified that prior to Callejas' discharge on January 29, 1971, he had heard complaints about Callejas' work for about a year; that the Company wanted to get rid of Callejas; that O'Neal had complained about 15 times and DeArco on 1 occasion when he was visiting the plant; that Aguirre said "I could not just allow them to get rid of this man without giving the man a warning letter." With regard to the meeting in O'Neal's office on or about January 5, 1971, Aguirre testified that he went to the plant to clear up something that he had heard; that some members of Respondent had informed him that Callejas had remarked to everyone at a party, "Henry Aguirre was receiving certain merchandise from Admiral, so that he could keep everything cool." Continuing his testimony, Aguirre said that he asked O'Neal to summon Callejas to his office; that when Callejas arrived O'Neal and Patterson were present; that he asked O'Neal if he had seen or known Aguirre to either buy or accept anything from Admiral at any time; that O'Neal an- swered in the negative, saying, "this is the first time I heard it;" that Aguirre then turned to Callejas and repeated some of the things that had been reported to him as coming from Callejas saying that Callejas was lying and that he did not want Callejas to spread this type of thing as it was vicious; that if he heard any more of this he would take Callejas to court on slander charges; that Callejas did not deny anything but stood there saying nothing. Aguirre denied that he said he would "get" Callejas, have him fired, or "destroy him."20 He also denied that Callejas said that he knew how far he could go. On the day Callejas was discharged, January 29, 1971, Aguirre testified that he was on vacation and at his home; that he had never suggested to anyone at Admiral that Callejas should be discharged; that he had not talked to Cal- lejas since meeting with him on January 5, 1971, at the plant; that he did not talk to O'Neal about G.C. Exhs. 3 or 4.21 Robert Patterson, dispatcher and business representative of Respondent, testified that he receives calls from employers wanting to terminate an employee at least once per month; that he replied by referring them to the labor agreement and asking that they give the employee a warning which may "straighten" him out; that he doesn't tell employers how to go about a discharge but merely says that there is a contract in effect which requires a letter stating the facts; that he had no conversations with O'Neal concerning Callejas' work in 1970 but did have two or three such conversations in January 30 Rudden, apparently Aguirre's informant, did not testify. As I credit Callelas' version of his conversation with Rudden, I believe Aguirre's infor- mation was a gross exaggeration of Callejas' remarks. 11 I do not credit Aguirre's testimony in this regard. I credit O'Neal's testimony that Aguirre called him about the language in the letter of January 29, 1971, and that as a consequence O'Neal wrote the letter of February 1, 1971, which would be consistent with the alleged shortcomings of Callejas described in the letter of January 18, 1971 WAREHOUSE UNION LOCAL 860, TEAMSTERS 73 1971; that before the meeting of January 5, 1971, he had received one call from O'Neal complaining that Callejas' work had slowed down quite a bit; that he told O'Neal to give him a chance to talk to him and see what was the problem. Patterson's account of the meeting of January 5, 1971, at the plant was in substantial agreement with that of Aguirre. Pat- terson recalled no conversation with O'Neal between January 5 and 18, 1971, but some time around January 18, 1971, O'Neal called Patterson saying that he would have to dis- patch a man the following day as he though he was going to have to discharge Callejas. Inquiring as to the reason O'Neal told Patterson that he had warned Callejas that if his work did not improve he would have to let him go and that Callejas had asked "Why don't you let me go now?" O'Neal then asked Patterson for his advice and Patterson replied that he should write out his conversation with Callejas. He then asked O'Neal if he was going to discharge Callejas. Upon O'Neal replying that he would not discharge him at that time but probably before the week was up, Patterson said he would not dispatch a man to him at that time.22 With reference to the letter of January 29, 1971,23 Patterson testified that he opened the letter, read it, but did nothing about it. Patterson denied that he received a call from Callejas on the evening of January 29, 1971, but affirmed Aguirre's testimony that evenings are extremely busy; that the tele- phone calls are numerous and required constant attention. Patterson further testified that neither he or any other repre- sentative of Respondent, to his knowledge, ever requested or indicated to Admiral that they wanted Callejas to be dis- charged." Analysis and Conclusions I have found above that Callejas' testimony was worthy of credit. I have also credited certain aspects of O'Neal's tes- timony in preference to that of Aguirre and Patterson. In addition I credit Patterson's testimony over that of Aguirre and O'Neal with regard to complaints concerning Callejas' work. Aguirre's statement that O'Neal complained about 15 times over a period of 1 year concerning Callejas' work is unsupported and not credited. O'Neal modestly placed the number of his complaints at 4 or 5. When asked for specific areas of Callejas' deficiencies O'Neal's generalizations were hardly satisfactory. On the other hand, Patterson said he heard complaints from O'Neal about Callejas only in January 1971. In my opinion, the plan to discharge Callejas was inaugu- rated after Aguirre's meeting with Callejas on January 5, 1971, in the presence of O'Neal and Patterson in O'Neal's office. It was shortly thereafter that O'Neal was told to write a warning letter to Callejas and O'Neal complied on January 18, 1971. Thereafter, prodded by Patterson, O'Neal wrote the letter of January 29, 1971. After being informed by Aguirre that the letter was inconsistent with the warning of January 18, 1971, and thus deficient for the purposes of discharge, O'Neal followed instructions and wrote the letter of February 1, 1971. I conclude that Respondent, through its agents Aguirre and Patterson, planned, ordered, and secured Cal- lejas' discharge for invidious reasons unrelated to any failure of Callejas to satisfactorily perform his duties. The evidence " I do not credit Patterson's testimony in this regard Rather I credit O'Neal's testimony that Patterson asked him if and when he was going to write another letter about Callejas. " GC Exh. 3 " Contrary to Patterson's testimony I find that Aguirre and Patterson, upon Aguirre 's instructions , planned, induced, and ordered Callejas' dis- charge because Aguirre was angered by Callejas ' remarks to members of Respondent is quite convincing that Aguirre, accustomed to great respect and obedience, was highly incensed at Callejas' reported re- marks which tended to disparage him. Callejas' failure to apologize and show sufficient repentance at the meeting of January 5, 1971, resulted in Aguirre's determination to have Callejas discharged. A discharge for these reasons is violative of Section 8(b)(2) and (1)(A)." I so find. B. The Discharge of Gladys Callejas Gladys Callejas, wife of Carlos Callejas, testified that she was employed by Transcontinental Music Corporation, herein called Transcontinental, from 1968 to January 19, 1971;26 that she was a member of Respondent; that she was told by the warehouse supervisor, Gene Wilding, on January 19 that she was being laid off; that when she asked Wilding why she was being laid off, Wilding said he didn't know; that Wilding said that she was a good worker; that before leaving on the 19th of January, she asked the warehouse superinten- dent, Mickey Duzdevich, why she was being laid off and he said that he did not know; that a floor lady by the name of Lovina likewise did not know the reason for Gladys' layoff; that she called the Union about her layoff and talked with Patterson who told her Aguirre was on vacation but that he would find out the reason for her layoff and would call her back; that Patterson did not return her call; that on February 1 she talked with Aguirre and asked him the reason for her layoff; that Aguirre said he didn't know the reason but many people were laid off that day. Gladys then asked Aguirre if it was because of "the trouble" with her husband. Aguirre replied that she "was going like her husband." Aguirre told her that Transcontinental would send her a letter explaining the reason for her discharge and that he could do nothing about it as more were going to be laid off and possibly the Company would close. On cross-examination, it was brought out that Gladys knew that other employees were laid off on January 15. When asked if she had any reason to think that she was laid off for a reason different than the others, she replied in the affirma- tive, pointing out that two employees, Esther Martinez and Josephine Klunis were laid off on Friday, January 15, but that after they called Aguirre they were put back to work. Gladys further testified that at the time of her layoff she was classified as a packer. She described a packer as one who placed records in bags which were then shipped out. She described a picker as one who selects records from an order. She admitted that she was never employed as a picker up to her layoff on Janu- ary 19. Gladys testified that she was recalled to work on May 4, and laid off for lack of work on June 5 when others were also laid off. When Gladys was recalled to work on May 5 she was employed at various jobs including picking and she did more picking than packing. William E. Wilding, referred to as Gene Wilding, testified that he was currently sales supervisor for Transcontinental; that prior to that he was warehouse supervisor or foreman; that at the present time he was working in both capacities, warehouse and sales supervisor; that as foreman he hired and terminated employees, purchased supplies and did layout work; that he told Gladys she was being laid off on January 19; that he didn't know the reason because he was told by his immediate supervisor, Duzdevich, that "she had to be laid off"; that Duzdevich told him that he didn't know the reason for Gladys' layoff. " Miranda Fuel Company, Inc., 140 NLRB 181 " s Hereafter all dates will refer to the year 1971 unless otherwise spe- cified 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Wilding testified that about 10 warehouse employees were laid off on January 15 and that he was not aware that Gladys was part of the layoff; that the layoff was due to seasonal slack; that Duzdevich had advised him that there was going to be a layoff; that William Hall, branch manager and vice president, and Duzdevich decided who would be laid off; that he was shown the list of employees to be laid off and he informed them of their layoff; that Gladys was laid off out of seniority; that 3 others were laid off out of seniority and that seniority does not always control layoffs. On further examination, Wilding testified that two of the persons laid off out of seniority were restored to their jobs within the week because they had complained to the Union; that Gladys was the senior or second senior of those who were laid off; that when Duzdevich spoke to him about laying off Gladys, Duzdevich said that Patterson of the Union had called him and that "apparently Gladys was supposed to have been laid off, and that Mr. Hall knew about it, but didn't know the reason why." Wilding further testified that of the two employees who were laid off on January 18, one was employed in processing tapes for orders and the other was primarily a packer. Mickey Duzdevich, employed by Transcontinental as warehouse superintendent, testified that prior to the January layoff he talked with Aguirre and Patterson; that on Monday, January 18, Patterson called and talked with him about the layoff which had been made on January 15. According to Duzdevich, Patterson merely requested confirmation whether the people on the list were all laid off and that after his conversation with Patterson he called in Wilding and asked him if all the people who were supposed to be laid off on Friday, January 15, were in fact laid off; that Wilding replied he had missed Gladys on Friday but that he had laid her off that day. Duzdevich denied speaking to Patterson about Gladys or that Patterson requested the reinstatement of the two employees who returned to work on Monday. Duzdevich repeatedly stated that the two were laid off by mistake but then casually admitted that they were sent back to work by the Union. Thereafter, he admitted that Gladys was mentioned in his conversation with Patterson and that he told Patterson that Gladys was still working but that she was going to be laid off. Duzdevich continuing his testimony stated that the prac- tice, though not followed strictly, was to provide the union with a list of those who were to be laid off; that the Union generally called to verify that the people listed were in fact laid off. Concluding his examination by the General Counsel, Duzdevich flatly stated that he had directed Wilding to lay Gladys off on January 15 and that Wilding had failed to do so. Explaining why Gladys was laid off in January and another packer retained, Duzdevich stated that the other packer was able to do heavier lifting. Duzdevich further ex- plained that after Gladys was laid off her job was absorbed by six or seven persons who were packers and pickers, spend- ing part of one day in the week doing picking and the next of the time packing. In reply to questions from the under- signed, Duzdevich testified that on Monday morning, Janu- ary 18, he saw Gladys working and asked Wilding what she was doing there, that he then talked to Patterson and told Wilding to lay her off at the end of the day; that he did not lay any one off early in the day because the check was cus- tomarily made out at the end of the day. William A. Hall, senior vice president of Transcontinental, a witness called by the General Counsel, testified that about 25 persons were laid off in January due to a seasonal slump; that about 15 of the layoffs were employed in the warehouse; that it was his decision to institute a layoff; that he called Aguirre before Aguirre went on vacation and told him he was going to let T.D.C.21 people go; that he had a very long discussion with Aguirre concerning the layoff in January; that he did not mention names but job classifications referring primarily to packers and pickers, that the selection of those to be laid off was made by Jim Rush" and himself on the basis of experience in the warehouse and their work habits. Asked whether he recalled discussing Gladys with Rush, Hall re- plied: "Yes, I do, because she was in T.D.C., and she was the packer. And I remember going back and trying to figure out what we were going to do. And I saw her trying to lift a 50 count29 carton, and that was one of the reasons I closed the line. It was difficult for her and it would be difficult for me. Aguirre testified that prior to his vacation he talked to Hall about the January layoff at Transcontinental ; that no names were mentioned during the discussion, just classifications; that he was involved in the incident where 2 employees, Esther Martinez and Josephine Klunis, were laid off and subsequently reinstated. Aguirre explained that he happened to be in the office when the two girls came in on the evening of January 15; that he was going on vacation the day after; that the girls asked why they were laid off and he said he didn't know; that the girls claimed they could pick and pack; that he knew they could do the type of work required by the company because they had been there for quite some time; that he tried to get "Bill" Hall on the phone but Hall had gone; that he talked to Jim Rush and said "Listen, were these girls included in this reclassification layoff that you are going to have? And he said, Henry, I thought they were, but evidently they weren't because they are experienced packers. So I said well then you had better put them back to work. Analysis and Conclusion Discharge of Gladys Callejas I do not credit the testimony of Duzdevich, Hall, and Aguirre concerning the reasons for Gladys' layoff of January 19. Rather, I credit the testimony of Gladys and Wilding. Duzdevich stated Gladys was laid off rather than Martinez even though both women were packers and Gladys was the senior because Martinez was a bigger woman and could do heavier work. Hall stated that Gladys was laid off as he intended to close out the T.D.C. packing because lifting 50 count cartons was too heavy for Gladys or even for himself. Aguirre stated that Gladys was laid off because Martinez and Klunis were also pickers while Gladys was not. Obviously the tale concocted to disguise the true reason for Gladys' layoff had many loopholes. It is rather plain that Aguirre was disap- pointed that Gladys was not laid off on January 15 and quickly ordered Rush to reinstate Martinez and Klunis and to let Gladys go. Duzdevich in turn, just as puzzled as Wild- ing concerning the reason for Gladys' layoff, initially at- tempted to suppress the fact that Patterson had discussed Gladys' layoff with him by blaming Wilding for failing to notify Gladys. However, after some additional questioning, Duzdevich admitted that he had assured Patterson that Gladys would be laid off that day. It seems clear to me that that was the sole purpose of Patterson's call; i.e., to make sure Aguirre's order to lay off Gladys was carried out. Clearly Gladys' layoff was ordered, directed, and caused by the agents of Respondent for invidious reasons and because Aguirre was angry at Carlos Callejas, the husband of Gladys. " Transcontinental Distributing Company, a subsidiary of Transconti- nental Hall testified it was a separate corporation and on a separate budget. Another Admiral official unidentified further. 50 long playing records WAREHOUSE UNION LOCAL 860, TEAMSTERS A layoff for the foregoing reasons is violative of Section 3(b)(2) and (1)(A).'° I so find . Counsel for Respondent argues in his brief that there is no direct evidence which supports the allegations of the complaint. While there may be some disa- greement as to what constitutes direct evidence, it would seem to be well established that a trier of fact may well draw inferences and conclusions from the total circumstances proved." Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Warehouse Union Local 860 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the mean- ing of the Act. 2. Admiral and Transcontinental and each of them are engaged in commerce within the meaning of the Act. '0 Miranda Fuel Company, Inc., supra. " Shattuck Denn Mining Corporation, 362 F 2d 466 (C A 9), Radio Officers Union v NL.R B. 347 U S 17 75 3. By causing Admiral to discharge and discriminate against Carlos Callejas, Respondent engaged in arbitrary con- duct without legitimate purpose and thereby encouraged un- ion membership in violation of Section 8(b)(1)(A) and (2) of the Act. 4. By causing Transcontinental to lay off and discriminate against Gladys Callejas, Respondent engaged in arbitrary conduct without legitimate purpose and thereby encouraged union membership in violation of 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Violations alleged in the complaint not specifically found herein are dismissed. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of the Act, I shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. [Recommended Order omitted from publication.]