Air Reduction Co.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Airco Industrial Gases-Pacific, a Division of Air Re- duction Company, Incorporated and Douglas R. Cupples. Case, 20-CA-5358-2 March 1, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 20, 1970, Trial Examiner Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. 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 and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, as modified herein. The Trial Examiner found that Respondent had vi- olated Section 8(a)(1) and (3) of the Act by discharging Douglas R. Cupples in reprisal for engaging in the protected activity of filing grievances. The Respondent contends that the Board should honor an arbitration award concerning the discharge. The Trial Examiner refused to accept the award and- issued a decision based upon the record before him. We find that the Trial Examiner was correct in{not honor- ing the arbitration award. Cupples was employed by Respondent as a leadman in the tube trailer maintenance department.' On Janu- ary 28, 1969,1 Cupples was terminated because of negli- gence, failure to follow instructions, and his past work record. Upon receiving notice of the termination, Cup- ples filed a grievance' alleging that his discharge was unwarranted by past company practice. On March 27, the arbitrator held a hearing on this grievance. Both sides were represented by counsel and were given full opportunity to present evidence. The parties stipulated that the issue to be determined by the arbitrator was whether Cupples had been discharged in violation of the collective-bargaining agreement, and, if so, what was the proper remedy. This agreement contains, inter alia, a provision that the Company agrees not to dis- criminate against any employee because of union affilia- tion or activities. The full agreement was placed into evidence before the arbitrator. During the course of the arbitration proceedings, Respondent, on direct exami- nation, questioned Cupples' supervisor, Castleberry, as to whether he had been out to "get" Cupples. Castle- berry responded negatively. Evidence was also pre- sented concerning disciplinary action taken against cupples in 1968, and the results of.a grievance he filed over such action. On June 12, the arbitrator issued his opinion and award in which he concluded that Cupples had been guilty of negligence, as charged, but that the penalty of discharge should be reduced to a suspension without pay, to the date of the award, and that he be reinstated to his former, position. At the unfair labor practice proceedings, Cupples contended that the arbitrator's award should not be honored because the subject of his prior grievance filings had not been presented to, or considered by, the arbitrator. The Trial Examiner agreed and proceeded to determine the {merits of the unfair labor practice charge.. - We agree with the Trial Examiner's findings regard- ing the arbitration proceedings. The questioning of Castleberry touched only tangentially upon the issue of discrimination. The introduction of a 33-page collec- tive-bargaining agreement does not indicate that the arbitrator considered each and every provision in arriv- ing at a decision. In fact, in his opinion and award the only provision cited by the_arbitrator as pertinent was that section dealing with discharge or suspension. The central issues in the arbitration' proceeding appear to have been whether or not Cupples was negligent in light of past company practice and, if so, whether the Respondent had complied with the contract provision for a warning notice prior to discharge- The introduc- tion of evidence regarding prior disciplinary action and the filing of a grievance was directed toward the issue of 'whether the Respondent ^ was required to issue a warning letter in the current situation. The introduc- tion of a single grievance was certainly not representa- tive of Cupples' prolific grievance activity (approxi- mately ` 200 grievances in ' the 2 years prior to his discharge). We do not find any indication in the opinion and award that the arbitrator considered the issue of a discriminatory discharge.' Apparently our dissenting colleague is of the same view, since he relies not only on the tenuous evidence that the unfair labor practice was in fact litigated, but on a wholly new resjudicata doctrine, under which he would hold that there was a duty to litigate it before the arbitrator. We do not accept this doctrine, which amounts to an absolute abdication of the Board's re- ' We would distinguish this case from Local 1522, International Brother- All dates hereinafter refer to 1969 , unless otherwise noted. hood ofElectrical Workers, AFL-CIO (Western Electric Company, Inc.), 180 On February 14, Cupples filed unfair labor practice charges, which are NLRB 131, where the arbitration panel did consider the unfair labor prac- the basis for the complaint in this case , alleging that the Respondent had tice issue, but did not receive additional evidence which was later intro- violated Section 8(a)(3) and ( 1) when it discharged him duced in the unfair labor practice proceeding. 195 NLRB No. 120 AIRCO INDUSTRIAL GASES sponsibility4 simply because of a pious protestation in the contract that the Company will not discriminate against employees because of their union activities or affiliation. In the face of an arbitration award that gives no indication that the arbitrator ruled on the unfair labor practice issue, deferral would result in an extension of the Spielbergs doctrine which we are unwilling to make. In the recent Kalamazoo Gazette case6 the Board did not give any weight to an arbitration award, where the arbitrator explicitly stated that he was not dealing with the unfair labor practice aspects of the situation.' Where, as here, the arbitrator writes an elaborate opin- ion that does not refer to the unfair labor practice issue, we cannot see any significant difference from Kalama- zoo. We find that our colleague's dissent would repre- sent a severe and unfortunate departure from a long established and equitable precedent.' We hold that the arbitrator did not consider the unfair labor practice issue,, that resjudicata is not appli- cable. We therefore affirm the Trial Examiner and adopt his Decision.' "We cannot, in giving effect to arbitration agreements, neglect our function of protecting the rights of employees granted by our Act." Raytheon Company, 140 NLRB 883, 886, enforcement denied on other grounds 326 F.2d 474 (C.A 1, 1964). ' Spielberg Manufacturing Company, 112 NLRB 1080. 6 Kalamazoo Typographical Union, Local No 122, International Typo- graphical Union, AFL-CIO (Booth Newspapers, Inc, d/b/a Kalamazoo Ga- zette), 193 NLRB No 159. ' In the recent Terminal Transport Company. Inc., 185 NLRB No 96, case, the Board majority (Member Jenkins dissenting) stated that the reason it had not deferred to arbitration in Illinois Ruan Transport Corporation, 165 NLRB 227, was because, "the question of discrimination was not raised before the arbitrator therein, and hence no evidence was introduced in support of any claim." Fn. 2 8 Spielberg Manufacturing Company, supra; Monsanto Chemical Com- pany, 130 NLRB 1097; Raytheon Company, supra; DC International, Inc., 162 NLRB 1383, enforcement denied on other grounds 385 F.2d 215 (C.A. 8, 1967), Rotax Metals, Inc., 163 NLRB 72, 78; John Klann Moving and Trucking Company, 170 NLRB 1207, enfd. 411 F 2d 261 (C A. 6, 1969), cert. denied 396 U S 833 (1969). " The General Counsel-and the Respondent have excepted to the Trial Examiner's recommendation that Cupples be awarded backpay from the date of his discharge to the date when he is either reinstated or placed on a preferential hiring list. We find merit to these exceptions and therefore alter the remedy accordingly At the hearing, the General Counsel and the Respondent stipulated that had Cupples been in Respondent's employ on May 16, 1969, he would have been included in an economic layoff that occurred on that date. Cupples is entitled to backpay from the date of his' discharge, January 28, 1969, to the date of the economic layoff, May 16, 1969. We note, however, that the record dbes not contain sufficient evidence to indicate whether Cupples would have been recalled after that date, and if he is entitled to additional compensation for loss of earnings Respondent will have the opportunity to adduce evidence on this issue during compli. ance proceedings See Martech Corporation, 169 NLRB 479 We agree with the Trial Examiner that Respondent should be required to offer Cupples either immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, or place his name upon a preferential hiring list, with due regard to his seniority. ORDER 677 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 herein, and hereby orders that the Respondent, Airco Industrial Gases- Pacific, A Division of Air Reduction Company, Incor- porated, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified. MEMBER KENNEDY, dissenting: Contrary to my colleagues, I would honor the award of the arbitrator as to the discharge and would dismiss the complaint in this case. Donald Cupples was employed by-Respondent as a leadman in its tube trailer maintenance department. On -January 28, 1969; Cupples was terminated because of negligence, failure to follow instructions, and his past work record. Upon receiving notice of the termination, Cupples filed a grievance, alleging that his discharge was unwarranted by past company practice. On March 27, Arbitrator Howard Durham held a hearing on this grievance. Both sides were represented by counsel and were given full opportunity to present evidence. The parties stipulated that the issue to be determined by the arbitrator was whether Cupples had been discharged in violation of the collective-bargaining agreement and, if so, what was the proper remedy. This agreement con- tains, inter alia, a provision that the Company agrees not to discriminate against any employee because of union affiliation or activities. The full agreement was placed into evidence before the arbitrator. During the course of the proceedings, Respondent, on direct ex- amination, questioned Cupples' supervisor, Castle- berry, as to whether he had been out to "get" Cupples. Castleberry, responded negatively. Evidence was also presented concerning disciplinary action taken against Cupples in 1968, and the results of a grievance he filed over such action. On June 12, the arbitrator issued his opinion and award in which he concluded that Cupples had been guilty of negligence, as charged, but that the penalty of discharge Should be reduced to a suspension without pay, to the date of the award, and that he be reinstated to his former position. - At the unfair labor practice proceedings, Cupples contended that the arbitrator's award should not be honored because the subject of his prior grievance filings had not been presented to, nor considered by, the arbitrator. The Trial Examiner agreed with this conten- tion and proceeded to determine the merits of the un- fair labor practice charge. I disagree. The record before the Board indicates at least three instances-the con- tract, examination of Castleberry, and the prior disci- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pline grievance-in which evidence regarding this issue was brought to the attention of the arbitrator. Additionally, it is implicit in the arbitration process that an arbitrator determining whether discipline ° or discharge is "for just cause" must necessarily 'con'sider whether in fact the discipline was imposed for some other reason which would not be consistent with the concept of "just cause." And in this case, such evidence could, of course, have`been introduced in support of a claim that the discharge violated the specific antidis- crimination provision of the governing agreement. Thus, here, the employee's representative was ,free to introduce, at the arbitration hearing, any available evi- dence to demonstrate that the , discharge was not' for Cupples' negligence, but instead was for his grievance activities. Arbitrators not infrequently find such evi- dence convincing, just as do our Trial Examiners who, in 8(a)(3) cases, are called upon to decide the very same kind of issue. ` If the parties here, having chosen to have the basic issue of the justness of the discharge determined by an arbitrator, failed adequately to present as thorough `a case as could have been developed on the issue of dis- crimination, it was not for want of a proper forum in which such issue could, and should, have been raised. I do not believe that the Spielberg requirement of fair and regular procedures should be extended to require that we refuse to accept an arbitrator's award because this Board or its General Counsel, with the benefit of hindsight, can think of arguments or uncover evidence which might have been, but was not presented in the course of the arbitration hearing. It is well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor prac- tices if to do so will serve the fundamental purposes of the Act.'° The Board will defer to arbitration when the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the pur- poses and policies of the Act." In my view, the arbitra- tion proceeding in this case clearly satisfied these re- quirements. For these reasons, in my opinion, it would effectuate the policies of the Act to give conclusive effect to the arbitration award and, on that basis, I would dismiss the complaint herein in its entirety. - ° International Harvester Company (Indianapolis Works), 138 NLRB 923, 925-926; affd. sub nom Ramsey v N.LR B., 327 F 2d 784 (C.A. 7, 1964), cert. denied 377 U S 1003 (1964) 11 Spielberg Manufacturing- Company, 112 NLRB 1080, 1082. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner: Upon a charge filed February 14, 1969, and duly served, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing to be issued and served on Airco Indus- trial Gases-Pacific, A Division of Air Reduction. Company, Incorporated, designated as Respondent within this decision. The complaint issued February 25, 1970; therein, Respond- ent was charged with unfair labor practices affecting corn- merce, within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Within Respondent's duly filed answer, certain factual statements in General Counsel's complaint were conceded; Respondent, however, has denied the commission of unfair labor practices. Pursuant to notice, a hearing with respect to this matter was held at San Francisco, California, on July 14, 1970, before me. The General Counsel and Respondent were repre- sented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. (General Counsel has filed a motion to correct transcript in two minor respects. Together with Respondent's counsel, he has further proffered a stipulation to amend transcript.-Both submissions seem well founded; no objections have been noted. The requested charges are hereby ordered.) Since the hearing's close, briefs have been received from General Counsel's representative and Respondent's counsel; these briefs have been duly consid- ered. FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following findings of fact: I JURISDICTION Respondent raises no question herein with respect to Gen- eral Counsel's jurisdictional claim. Upon the - complaint's relevant factual declarations, which have not been contro- verted, I find that Respondent was, throughout the period with which this case is concerned, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case war- ranted- and necessary to effectuate statutory objectives. II THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Warehousement, and Helpers, Lo- cal No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of, America, herein called the Union, is, and at all times material herein has been, a labor organization within the meaning, of Section 2(5) of the Act, as.amended, which admits certain of Respondent's em- ployees to membership. III THE UNFAIR LABOR PRACTICES A. Issues General Counsel presently charges Respondent with Sec- tion 8(a)(3) and derivative Section 8(a)(1) unfair labor prac- tices, bottomed upon the firm's discharge of Douglas R. Cup- ples because of his membership in or activities on behalf of the Union, or because he had engaged in other protected, AIRCO INDUSTRIAL GASES concerted activity. Respondent challenged this contention upon two grounds. First, Respondent moves for dismissal. Respondent's counsel contends that Cupples had, previously, challenged the propriety of his discharge pursuant to contrac- tually defined grievance-arbitration procedures; that a defini- tive arbitration award had been rendered with respect thereto, that Respondent's disciplinary decision had been, substantially, sustained therein, and that this Board, there- fore, should-within its discretion-withhold its process in deference to such completed arbitration procedures. Sec- ondarily, Respondent contends that Cupples was, in any event, terminated for good cause. With matters in this pos- ture, General Counsel presents two counter contentions. -First, Respondent's argument, that contractually sanctioned arbitration proceedings which have been carried to conclu- sion should be considered sufficient to warrant Board defer- ence herein, stands challenged as misplaced; General Counsel currently contends that Respondent's proffered arbitration award reflects neither testimony taken, consideration given, nor disposition made, with respect to those matters of statu- tory concern which purportedly underlie his complaint. Fur- ther, General Counsel contends that Respondent's presently proffered reason for Cupples' termination must be consid- ered, really, pretextual. B. Facts 1. Background a. Respondent's plant Within Respondent's Richmond, California, plant-with which this case is concerned-the Company produces com- mercial and cryogenic gases, particularly liquid nitrogen, liq- uid oxygen and liquid argon. These liquid gases are delivered to Respondent's customers in large cylindrical tubes; some 30-40 feet long. Numerous tubes (15-60) are carried on framework trailers-stacked in semi-pyramid fashion and strapped in place-pulled by truck tractors. (Respondent's tube carriers are not covered, enclosed trailers; they were merely open metal framework carriers mounted on wheels. With Respondent's tubes removed, each carrier is cus- tomarily designated a chassis; when loaded with completely assembled tubes, these carriers are considered trailers.) The tubes in question must be cleaned, reconditioned, and tested, periodically. For this purpose, Respondent's Richmond plant maintains a tube trailer maintenance and retest facility. Within this facility, when trailers and tubes are returned for necessary maintenance, the tubes are removed from their carrier, disassembled, and hydrostatically tested for defects. They are then reassembled, given a primer coat of paint, and restacked on Respondent's chassis. The completely restacked trailer is then released or transferred to Respondent's garage paint shop; there, the tubes receive their final coats of paint, partially orange and partially white. b. Respondent's labor contract Throughout the period with which this case is concerned, wages, hours and conditions' of work at Respondent's Rich- mond plant were governed by Respondent's contract with General Truck Drivers, Warehousemen and Helpers Local No. 315 and Local No. 70; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. That contract, inter alia, proscribed discharge or suspension without "just" cause, providing further that most discharges or suspensions for cause must be premised upon written warning notices, one or more, given the worker con- cerned no more than 9 months previously. (No prior warning notice was contractually required, however, for discharges bottomed upon dishonesty, drunkeness, recklessness result- 679 mg in serious accident while on duty, or gross misconduct.) Respondent was contractually committed to eschew discrimi- nation of any kind directed against stewards or workmen because of their union membership or participation. The con- tract, further, contained provisions establishing a three-step grievance procedure. Matters not settled thereby were made referable to nonbinding Federal mediation. Thereafter, the parties could refer matters to final and binding arbitration, should such a step prove necessary. c. Complainant's work history Respondent hired Douglas R. Cupples, in September 1965; for most of his period of employment he worked in Respond- ent's tube trailer maintenance and retest section. During the period with which this case is concerned; Cupples was desig- nated a leadman with respect to his work shift; he worked, primarily, with another workman, Lyle Elledge. When first hired, Cupples had been a member of Stationery Engineers Local No. 39. Thereafter, however, he-together with some other workers-had mounted a campaign for rep- resentation by Teamsters Local 315. Following their organi- zational campaign, this-Board had held a representation elec- tion during early 1966, which the last-designated organization had won. Shortly following the Teamster Local's victory, Cupples had been elected alternate shop steward at Respondent's Richmond facility. He had held that position for one year approximately. Thereafter, he had been elected head shop steward. During his year of service as head shop steward, Cupples had filed some 50-60 written grievances; further, he had pre- sented some 100-150 informal verbal grievances. Late in 1967, or early the following year, Cupples had been replaced as head shop steward. Nevertheless, he had continued to file grievances, both on his own behalf and on behalf of himself and other workers. Between February 1, 1968, and the date of his January 1969, termination, Cupples had filed at least 11 written grievances. (While a witness, Cupples testified that he might have filed more grievances than those produced in writing for the present record; with respect thereto, however, he could produce no copies and retained no present recollec- tion.) Further, so his credited testimony shows, he continued to present verbal grievances directly to superiors; the present record, however, provides no reliable clue regarding their number or content. 2. Cupples' relationship with Castleberry During July 1968 Cupples was being supervised by John Anderson; before August 1, Harrelton ' Castleberry, then designated Respondent's distribution superintendent, super- vised only garage employees and truck drivers. Among the workmen under Castleberry's supervision was Joe Boles, a tire and lube man. Sometime late in July 1968 during a coffeebreak conversation, Boles asked Cupples whether there was any possibility that he might get into trouble for performing work in Respondent's garage nor- mally done by the Machinist's Union members. Cupples re- sponded-jokingly, so he credibly testified-that Boles might be subject to disciplinary action should he perform work within another labor organization's jurisdiction; he added that Boles "could be taken" before Local 315's executive board. The following day, Castleberry stopped Cupples at Re- spondent's plant, shortly before the latter's second shift tour of duty was to begin, telling him that he did not want Cupples "interfering" with his men. When queried regarding his refer- ence, Castleberry replied that he was referring to Cupples' conversation with Boles the night before. Cupples declared 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had been joking, merely. Castleberry then commented -so I find-that he would be taking over supervisory respon- sibility for Respondent's fill building operations, together with the plant's tube trailer maintenance and retest functions, within a short time; he warned Cupples that he knew how to take care of people who got in his way or made his job difficult. (Castleberry, while a witness, declared that he had no specific recollection regarding this conversation. Despite his conceded failure of recollection, however, Respondent's distribution superintendent claimed "definitely" that he had never threatened Cupples. Since Castleberry had testimoni- ally acknowledged his lack of recollection, regarding this matter, his pro forma disclaimer can hardly be considered more than a self-serving statement, not worthy of credence. Cupples' detailed recital has been credited.) Upon this note, presumably, their conversation ter- minated. Shortly thereafter-on August 1 specifically-Cas- tleberry was, indeed, given supervisory responsibility, inter alia, for the Richmond plant's fill building, plus tube trailer maintenance and retest functions. While a witness, Castle- berry conceded that he had-then-reviewed the personnel filed of workers newly transferred to his supervision. He had found-within Cupples' file-copies of grievances previously filed, together with memos from the workman's former super- visors dealing with his grievances and complaints. Castle- berry tacitly acknowledged-during General Counsel's cross-examination-that he had thereupon "realized" there had previously been "difficulty" between Cupples and Re- spondent's management, before the former's August 1 trans- fer to his supervision. For a short period thereafter, during late October of early November 1968 specifically, Cupples and Elledge were tem- porarily transferred to fill building functions. Together, they visited Castleberry's office; Cupples declared that he proposed to file a grievance regarding their transfer. Castle- berry countered with a declaration that he was getting tired of Cupples' penchant for filing grievances; he declared that he would "get rid" of Cupples, if his grievance filings did not stop. The workman commented, however, that if Respondent would comply with contractual requirements he would not have to file grievances. Castleberry, then, declared that if he wished to "get rid" of Cupples he would. When Cupples asked whether this meant he would be fired, Castleberryre- plied that he would get rid of Cupples any way he saw fit, should that become necessary, and that he could get rid of anyone he desired. (Regarding this conversation, Elledge cor- roborates Cupples; Castleberry's testimony reflects no denial. My factual determinations derive from a synthesis of the testimony presented.) No specific grievance was mentioned. So far as the record shows, Castleberry's pique, with respect to Cupples, derived from generalized considerations merely. I so find. Some 2 weeks later-while Cupples, then back at work on swing shift, in tube trailer maintenance and retest, was work- ing in Respondent's yard-his supervisor accosted him. Cas- tleberry declared himself "unhappy" regarding Cupples' work, adding that he would have to get rid of Cupples if the latter did not shape up. Further, so Cupples testified, Re- spondent's supervisor, then: ... made a statement to the affect that he was tired of me filing grievances all the time; couldn't figure out-he said I was getting to be a pain in the ass to him and couldn't figure out what the hell was the matter with me; that I was always complaining and bitching and grieving about different things. - The record, within my view, warrants a determination, con- trary to Castleberry's testimony, that this conversation became somewhat loud and heated-so much so that it cap- tured Elledge's attention while he was passing. Save for a query, however, regarding what was going on-with respect to which Cupples vouchsafed an equivocal reply-Elledge took no part in the conversation. While a witness, Castleberry first described this conversation as just a calm, friendly talk, devoted to general topics; the record considered in totality, however, will not support such a characterization. First, Castleberry conceded that he could not, now, recall their conversation fully. Secondly, this trier of fact notes Elledge's testimony-which I find credible- that the conversation in question was sufficiently heated to compel his notice. Finally, Castleberry acknowledged that he had, next morning, prepared a memorandum regarding the conversation, for placement in Cupples' personnel file; the record shows that he did not follow this practice with regard to casual talks, but that he would customarily prepare file memos when conversations with workmen related to their work or work performance. With matters in this posture, Cupples' recital regarding the substance and tenor of his conversation with Castleberry is credited; this trier of fact finds that he was, really, threatened with possible discharge because of his grievance-filing proclivities. During the first week' of January 1969, Cupples attended a grievance meeting in Castleberry's office, together with a group of union representatives. One of two December griev- ances which Respondent's leadman had filed, claiming over- time, was considered. During the discussion, Castleberry asked whether he had any more grievances to present; Cup- ples replied that he had one more grievance, regarding over- time, which was not yet ready. Respondent's supervisor-so credible testimony shows-then asked, sometimes petulantly, why he (Cupples) could not get his grievances ready for presentation at one time; he suggested, facetiously, that Cup- ples would be well-advised to procure secretarial help to write up his grievances. Cupples responded, presumably in the same spirit, that this would not be a bad idea. 3. Cupples' discharge On January 20, 1969, when Cupples and Elledge reported for Respondent's swing shift, they found a so-called logbook lying open near the front end of the company-owned trialer chassis whose tubes were currently being reconditioned. The book's right-hand, odd-numbered page contained a series of handwritten notations, detailing the work which had been performed during the completed January 20 day shift. (Generally, Respondent's' tube trailer maintenance and re- test leadmen were required 'to record, within the logbook, whatever work had been performed on their shift; presuma- bly, succeeding shift workers were, thereby, kept advised re- garding the status of work within the plant's tube trailer maintenance and retest' section. Though the present record warrants a determination-consistently with Respondent's contention-that Respondent's foremen sometimes noted in- structions or recorded messages , for oncoming shift workers, within this logbook, such usage of the book does not appear to have been common. Most instructions were given verbally. For example: Logbook pages produced for the present record reveal some written instructions for Respondent's swing shift dated January 16 and 17, 1969; these were the two working days which had directly preceded Monday, January 20. Before that, however, no instructions had been recorded in Respondent's logbook within the previous 11 pages, covering the period from December 26, 1968, to January 15, 1969.) Cupples noted some seven blank lines below the last Janu- ary 20 day-shift entry; he did not, therefore, turn the page to determine whether further notations had been made on the following left-hand page. In fact, however, such notations had been made; therein, Cupples'and Elledge had been di- AIRCO INDUSTRIAL GASES rected, inter alia, to lay some wrapping paper, procurable from Respondent's garage, over the chassis frame, before replacing tested and reassembled tubes thereon. (Such paper, when properly placed, would-so the record shows-serve a useful purpose. When Respondent's garage paint shop work- ers were, thereafter, required to spray paint the reloaded tubes with their final coats of orange and white paint, the paper would mask Respondent's chassis from accidental overspray; thereby, the trailer chassis, regularly colored orange, would be preserved from speckling by sprayed white paint.) Cupples and Elledge, so the record shows, completed certain routine tasks and replaced 18 tubes on Respondent's chassis without first laying down masking paper pursuant to their foreman's directive. When Respondent's swing shift concluded, Cupples turned the logbook page, for the purpose of recording those tasks which he, together which Elledge, had completed. For the first time-so his credible testimony shows-he noted his foreman's "instruction" regarding the laying of masking paper, which appeared at the top of the logbook's newly turned left-hand page. Since swing-shift op- erations had been completed, however, with Elledge having already left the work area, Cupples concluded that nothing could then be done, and merely recorded their work per- formed. When Cupples and Elledge reported for work on January 21, they were summoned to Castleberry's office. Respond- ent's supervisor queried them regarding their previous day's failure to lay masking paper before reloading the chassis with tubes. Cupples replied that this was not considered a normal part of their work and was not normally done. He was told, however, that a directive with respect to laying such paper had been noted in Respondent's logbook. The leadman there- upon declared that, should Castleberry wish some masking paper laid, the situation could be rectified very quickly. With Castleberry's acquiescence, Cupples and Elledge pro- ceeded to raise the reloaded tubes with jacks, following which they slid the requisite masking paper over the chassis frame- work, beneath the tubes. This mask was completed some time within 10-30 minutes. Work proceeded normally for the balance of the week. On January 27, however, Respondent and union representatives held another grievance panel conference. Some grievances filed by Cupples, personally, were considered. Respondent's leadman, further, gave testimony in support of still another grievance; Elledge, together with another worker holding the same classification, were requesting leadmen's wages com- parable with Cupples' rate, since they were doing the same work. On the following day, January 28, Cupples received a let- ter, signed by Castleberry, whereby his services with Re- spondent were terminated. Therein, Cupples was told that: This action is based on your negligence and failure to follow instructions on January 20, 1969, plus your previ- ous past record. The present record warrants a determination, which I make, that Respondent's termination decision-though com- municated over Castleberry's signature-had not, really, been made by Respondent's distribution superintendent; it followed consultation between the latter, his superiors, and Respondent's corporate manager of industrial relations. 4. The arbitration proceedings Cupples promptly filed a grievance regarding his termina- tion; he contended that his discharge had not been warranted by past company practice. This grievance, eventually, reached arbitration. On March 27, a hearing was held, before Arbitrator Howard Durham, with both Respondent and Union represented by counsel. The record, herein, shows that 681 Respondent's labor contract-with its discharge and nondis- crimination provisions-was, then and there, made available for the arbitrator's consideration. Further, General Counsel and Respondent have stipulated, herein, that Respondent's distribution superintendent-when questioned during the ar- bitration hearing by Respondent 's counsel-did deny any personal campaign to somehow "get" Cupples; likewise, he denied receiving any so-called instruction from superiors to "get" the complainant herein . While a witness before me, however, Cupples testified-credibly and without contradic- tion-that neither the subject of his prior grievance filings, both on behalf of himself and others , nor his prior conduct as Union shop steward, were specifically "discussed or men- tioned" during the arbitration proceeding. I so find. Arbitrator Durham 's decision-made part of the record herein-reflects his detailed consideration of Respondent's contention that "just cause" had motivated Cupples termina- tion, bottomed upon his purported January 20 negligence following an earlier May 1968 disciplinary suspension. The arbitrator concluded that Cupples' had, indeed , been guilty of negligence. Nevertheless, he rejected Respondent's conten- tion that Cupples' negligence had constituted a serious blun- der. He found, therefore, that-while Respondent had been given cause to discipline Cupples for his January 20 oversight -no just cause for termination had been shown; another disciplinary suspension-so he concluded-would have been proper . Pursuant to this conclusion, Arbitrator Durham, within a decision dated June 12,1969 , reduced Cupples' pen- alty to a suspension without pay from January 28 through the decision's date, and directed that Respondent 's former lead- man be reinstated to his former position , with no loss of seniority. General Counsel and Respondent have herein stipulated, however, that Respondent 's former leadman-had remained in the firm's employ-would have been terminated May 16, 1969, for business reasons. In practical terms, therefore, Dur- ham's award, subsequent to that date, would seem to have left Cupples without any meaningful right. I so find. Respondent herein, so the record shows, currently ac- quiesces with respect to Arbitrator Durham's decision. The firm's counsel , within his brief, presently characterizes Re- spondent's January 28 treatment of Cupples, challenged herein, as merely a disciplinary suspension without pay. Fur- ther, Respondent contends, herein, that the arbitrator's award should not be disturbed. C. Conclusions 1. The arbitration award Clearly, this Board's unfair labor practice jurisdiction- pursuant to Section 10(a) of the statute-cannot be consid- ered "affected" by any other means of adjustment or preven- tion that has been or may be established by agreement, law, or otherwise. However, consistent with Congress' policy to encourage a resort to contracts providing for final arbitration of grievance disputes, the Board had declared-within its discretion-that it will, under appropriate circumstances, withhold its process in deference to arbitration procedures. Spielberg Manufacturing Co., 112 NLRB 1080, 1082. Within the cited case, the Board concluded that voluntary settle- ments with respect to grievance disputes would be most ap- propriately promoted by Board deference to arbitral deci- sions where the proceedings appear to have been fair and regular, where all parties have agreed to be bound, and where the arbitrator's decision is not clearly repugnant to statutory purposes and policies. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends, herein, that these conditions have been satisfied with respect to the present case. This Trial Examiner has been requested therefore, to declare deference for Arbitrator Durham's decision, and to dismiss the present complaint. General Counsel, however, notes cogently, within his brief, that this Board's so-called Spielberg doctrine has-since its promulgation-been significantly refined. For example: It has been held that an arbitral award sustaining the discharge of two workers would not be considered determinative-when proffered within a statutory unfair laborpractice challenging their discharges as discriminatory-since the concerned arbi- trator had determined, solely, whether the workers in ques- tion had violated a contractual no-strike clause, but had not, while so doing, considered whether they had been discharged for protected union or concerted conduct. Raytheon Com- pany, 140 NLRB 883, 884-885. Compare Mitchell Transport, Inc., 152 NLRB 122, 123, 130-131, petition to review denied, sub nom. Hawkins v. N.L.R.B., 358 F.2d 281, 284 (C.A. 7). Therein, likewise; the concerned arbitral tribunal had consid- ered merely whether a designated dischargee had been treated fairly under contractual standards; no testimony, argument or discussion had been presented bearing upon the question of whether the challenged discharge might have been moti- vated, likewise, by the dischargee's participation in protected conduct. The decisional refinement noted-with respect to this Board's, so-called Spielberg doctrine-has, more recently, been reaffirmed within a factual context significantly com- parable with the situation herein presented. DC International, Inc,, 162 NLRB 1383, 1384-85, enfd. denied on other grounds 385 F.2d 215, 220 (C.A. 8). The cited case concerned a workman threatened with reprisal by company officials on various occasions because of his penchant for filing numerous contractual grievances. He was subsequently discharged for a purported dereliction which the Board found pretextual. Presented with Trial Examiner Stone's recommendation- that a properly designated arbitration panel's decision confirming the propriety of the challenged discharge, should be recognized-this Board declared: In general, the General Counsel contends that, as the quesiton of Stanley's statutory rights was neither pre- sented nor considered in the arbitration proceeding, the award was inadequate to effectuate statutory policies, and accordingly, the Board should disregard it in deter- mining the lawfulness of Stnley's discharge. On the particular facts of this case, we find merit in the General Counsel's position ... [The] issue of pretextual dis- charge was never raised, directly or inferentially, much less litigated before the Committee. Nor was any evi- dence offered from which the Committee might, sua sponte, have considered this issue ... [It] is clear beyond doubt that the Committee had no reason for even sus- pecting that Stanley's discharge might have been moti- vated by conduct protected by Section 7 of the Act. Accordingly, it is plain that the Committee had no occa- sion to, and did not explore the issue of concern to the Board, and that the question of statutory policy raised by the instant complaint, if it is to be considered at an, must be presently resolved without regard for the Com- mittee's decision. These decisional principles have since been consistently fol- lowed,, with judicial concurrence. Milne Truck Lines, 171 NLRB No. 25, (TXD); The John Klann Moving and Truck- ing Company, 170 NLRB No. 133, enfd. 411 F.2d 261 (C.A. 6); Hribar Trucking, Inc., 166 NLRB 745, 754, enfd, 406 F.2d 854 (C.A. 7). Compare IllinoisRuan Transport Corpora- tion v. N.L.R.B., 404 F.2d 274 (C.A. 8); Associated Retailer Suburban Delivery Company, 181 NLRB No. 64 (TXD); and Style Expansion Industries Corporation, 164 NLRB 563, 572- 573, wherein the Board concurred with its Trial Examiners' determinations that relevant arbitral decisions did not de- serve deference, but rejected their substantive conclusions regarding the propriety of challenged discharges. While a witness herein, Cupples testified-without contra- diction-that neither his prior grievances, nor the fact that such prior grievances had been filed, were "discussed or men- tioned" during the contractual arbitration proceeding with which we are now concerned. Respondent's counsel notes that the relevant collective-bargaining contract was before Arbitrator Durham; that lengthy document,inter alia, does contain a clause prohibiting discrimination because of union activity. Further, Respondent has proffered-for the present record-that portion of Castleberry's testimony before Dur- ham wherein Respondent's distribution superintendent de- clared-responding to leading questions-that neither he, nor any other management representative, had been trying to "get" the complainant herein. From this, limited congery of purportedly relevant circumstances, counsel would have me conclude that Arbitrator Durham, necessarily, must have considered whether Cupples' discharge derived, completely or partially, from participation in statutorily protected con- duct, and must have decided that no such showing had been made. This contention fails to persuade. Lacking, any record showing, herein, that Cupples' previous union-related or pro- tected conduct was specifically mentioned during his contrac- tual arbitration hearing, I cannot conclude that Arbitrator Durham considered the possible relevancy or materiality of Respondent's contractual "non-discrimination" commit- ment, with respect to complainant's termination. Certainly, Castleberry's testimony during the arbitration hearing-that neither he nor any management representative had been try- ing to "get" their former leadman-can hardly be considered a specific reference to Cupples' history of participation in statutorily protected activity. (Compare Modern Motor Ex- press, Inc., 149 NLRB 1507, 1510. Therein, this Board found Spielberg criteria satisfied, upon a record which revealed that purported discriminatee had, himself, raised-during a con- tractually sanctioned arbitration proceeding-the specific contention that he believed the company concerned had "had it in" for him since the occasion when he had filed a griev- ance. Consistently with General Counsel's contention, I find this factual difference sufficient to "render the cited case inap- posite, upon the present record.) With matters in this posture, I conclude that this Board's so-called Spielberg criteria have not, herein, been satisfied; Arbitrator Durham's decision, therefore, does not, within my views, presently merit defer- ence. Within this brief, Respondent's counsel makes a 'further contention. Noting that this Board's Regional Office had withheld a final determination regarding the disposition of Cupples' charge-which had been filed very shortly following his termination-while waiting for Durham's arbitral deci- sion, counsel suggests that the Region's policy of caution really represented a deliberate deferral to contractual arbitra- tion processes. And, with matters in this posture, counsel argues that: the Region should not be allowed to "change its mind" some eight months after the' arbitrator's award. A decision to defer was made, it should be made a bind- ing decision and the Charge should be dismissed ... This contention, seemingly, derives from "estoppel" princi- ples. Well-settled decisional doctrine, however, requires a determination that so-called estoppel principles can neither dictate nor confine this Board's judgment, functioning within AIRCO INDUSTRIAL GASES its statutory discretion. With respect to previously rendered contractual arbitration decisions, particularly, no persuasive rationale dictating agency restraint has, heretofore, been sug- gested; rather the agency's freedom to proceed has, been reaffirmed. See Carey v. Westinghouse Electric Corporation, 375 U.S. 361; 'Cast Optics Corporation v. Textile Workers Union ofAmerica, 75 LRRM 2169, 2170 (D.C. N.Y.). Within the first cited case, Justice Douglas, speaking for the court, did note that the "weight" carried by a relevant arbitration award would "likely be considerable" should this Board be required, later, to rule on phases of the same dispute. He concluded, however, that: Should the Board disagree with the arbiter ... the Board's ruling would, of course, take precedence. ... The superior authority of the Board may be invoked at any time. These considerations, within my view, must be considered determinative. The-Regional Director's tentative decision to withhold the present Complaint's issuance-while he waited to see whether Cupples' arbitration proceeding would, ulti- mately, meet relevant Spielberg and DC International stan- dards--cannot, therefore,' control this case's disposition. 2. The discharge There can be no doubt, upon the present record, that- throughout most of his,period of service-the complainant was a prominent union protagonist. Further discussion, herein, regarding his participation in Local 315's campaign for representation rights and subsequent stewardship, plus his relatively frequent grievance filings during the year which preceded his discharge, would be superfluous. Indeed, Re- spondent's counsel, within his brief, notes no traverse with regard to this portion of General Counsel's presentation; Re- spondent denies, merely, that Cupples' January 28 termina- tion constituted _Castleberry's so-called revenge for com- plainant's conceded union activity. The present record, likewise, fully warrants a specific de- termination-without regard for counsel's tacit concession- that Respondent's management, generally, was cognizant of Cupples' statutorily protected conduct. Naturally, those management representatives directly concerned with resolv- ing grievances which Cupples presented-both as Local 315's head steward and, following his period of stewardship, in his own behalf-would have been fully cognizant with respect thereto. (The record reveals Castleberry's concession that Cupples' former supervisors had left memoranda in his per- sonnel file regarding grievances which he had previously filed.) Testifying herein, Respondent's distribution superin- tendent did declare that-before his designation as Cupples' supervisor-he had not, personally, shared management's knowledge regarding the leadman's grievance record. How- ever, he, did concede that, when he became Respondent's distribution superintendent, he had reviewed, inter_'alia, Cup- ples' personnel file. With matters in this posture, I find that Castleberry, particularly, was-throughout the period with which this case is directly concerned-fully cognizant of Cupples" history of participation in protected; concerted ac- tivity. General Counsel submits, herein, that Cupples' January 20, failure to lay masking paper on Respondent's trailer chas- sis, pursuant to his foreman's directive, constituted merely a pretext for his discharge. 'Respondent counters with a conten- tion, first, that General Counsel's testimonial presentation- designed to prove Castleberry's statutorily-proscribed- moti- vation-merits characterization as sketchy and indefinite. These contentions present, the basic,factual question which, when resolved, will be dispositive herein; i.e.-, what was the "actual motive" for Cupples' termination. Santa Fe Drilling 683 Co. v. ,N.L.R.B., 416 F.2d 725, 729 (C.A. 9). Disposition of that question will, necessarily require determinations regard- ing a state of mind, with respect to which direct evidence free of "self-serving" taint will seldom be available. This Board's determinations with respect to motivation, therefore, have frequently been derived-with judicial concurrence- from circumstantial as well as direct evidence, supportive of infer- ences "drawn from the entire web of circumstances" which particular records present. Santa Fe Drilling Co. v. N. L. R. B., supra,- N.L.R.B. v. Miller Redwood Co., 407-F.2d 1366,'1369 (C.A. 9); Shattuck Denn MiningCorp v. NL.R.B., 362 F.2d 466, 470 (C.A. 9). In this connection, further, discharges may, properly, be found unlawful where a dischargee's par- ticipation in protected, concerted activity was merely a con- tributing factor. In such cases, shortly, statutory violations may be considered made out, though a proscribed motive may reasonably be considered only partially responsible for the challenged discharge decision. With due regard for these settled principles, I find General Counsel's contention, herein, fully supported by the present record. Castleberry's negative reaction toward Cupples' seemingly sustained "activism" with respect to grievance matters-following his acquisition of knowledge with respect thereto-stands therein plainly revealed. And General Coun- sel's presentation-despite contending counsel's suggestion that'it lacks substantiality-warrants ,a determination; within my view, that Castleberry did threaten Cupples with possible discharge, three times at least, because he considered Cupples a protagonist of workers' rights under Local 315's collective- bargaining contract. (Respondent's counsel would have me note that Cupples filed' no grievances during his first 4 months under Castle- berry's supervision; more particularly, he would have me note that Cupples filed no grievances requiring Castleberry's at- tention, before the several purported threats' of discharge with which we are now concerned. Presumably counsel would contend, therefore, that Castleberry could not reasonably be found to have threatened Cupples because of resentment over the latter's various grievance filings. The suggestion, however -despite its factual justification-does not, within my view, vitiate General Counsel's contention. The first threat-re- flected in Castleberry's July 1968 declaration that he' knew low to "get rid" of people who got in his way or made his job difficult-clearly derived from Castleberry's belief that Cupples, though not then his direct subordinate, had some- how "interferred" with his managerial right to direct the work of those subject to his supervision. And both subsequent threats-during their October-November' conversations de- tailed previously within this decision-clearly'followed Cas- tleberry's reading of Cupples' personnel folder, with its record of'grievances filed. Further, both threats were made- so the credible record shows-within conversational contexts which included references ' by Respondent's distribution su- perintendent to Cupples' prior grievances and complaints.) With matters in this posture, General Counsel has-within my view-made a prima facie showing that Cupples' dis- charge could reasonably be attributed, completely or par- tially, to Castleberry's previously declared resentment, which had been kindled to positive action when the leadman, subse- quently, filed his December-January grievances. With respect to Respondent's proffered justification for Cupples' challenged termination, something less than a per- suasive,presentation appears. Upon the present record, deter- mination, clearly seems warranted 'that the placement of masking paper of trailer chassis frameworks had never previ- ously been considered "standard operating procedure" for Tube Trailer Maintenance and Retest crews. (While a wit- ness, Castleberry did contend-without proffering any cir- 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cumstantially corroborative details-that such a task was part of Respondent's normal routine . Cupples and Elledge, however, both registered strong disagreement. They testified -without persuasive contradiction from either their foreman or fellow workers presumptively knowledgeable in this con- nection-that they had never been given routine supervisory directives with respect to laying masking paper ; that they had laid such paper only twice previously; and that, with respect to both occasions, they had laid the paper because fellow workers-not supervisors-within Respondent's paint de- partment had specifically requested them to do so. Their testimony in this respect is credited.) My conclusions in this regard have been, further, buttressed by certain significant lapses in Respondent's defensive presentation . Where was the supply of masking paper-which Cupples and Elledge were supposedly required to lay-stored? Was such paper regu- larly made available for placement , within the firm's tube trailer maintenance and retest work area , or was the plant's supply -kept in Respondent's garage? Which department, sec- tion, or particular worker within Respondent's Richmond plant was responsible for providing such paper? To whom, and subject to whose requisition , was it regularly provided? No testimonial or documentary basis for resolving these ques- tions can be found within the present record ; Cupples' fore- man-who, conceivably, could have provided such data from personal knowledge-was never summoned. Further, with respect to Respondent's present contention - regarding the plant's "normal practice" regarding the placement of mask- ing paper, General Counsel raises a pertinent question: If such a practice did indeed exist , and if such practice were in fact normal procedure, why then would it have been necessary for Castleberry or his foreman to write instructions in the log book requesting Cupples and El- ledge to lay the masking paper? With respect to this quesiton, Castleberry's testimony pro- vides no basis for resolution. By way of summary : Respond- ent's defensive presentation provides no persuasive justifica- tion for a conclusion that Cupples ' failure to lay the masking paper represented a deviation from his crew's normal work routine. Respondent, however, further cites Cupples' presump- tively culpable negligence, demonstrated by his failure to note his foreman's specific "log book" directive regarding the placement of masking paper, coupled with his consequent failure to, lay such paper. This trier of fact has not been persuaded, however, that-without regard for Cupples' record of participation in statutorily protected conduct his claimed "failure of omission" with regard, to Respondent's logbook would have been considered , still, sufficiently serious to warrant his termination. Note should be taken, in this connection, that the firm's logbook was not 'routinely used for conveying instructions;, that comparatively few work direc- tives can be found therein; that the specific directive which Cupplesconcededly failed to note before commencing work did not follow, directly, the first-shift crew's immediately preceding logbook notations ; and that Cupples' foreman had, nevertheless, given him no clue suggesting that the logbook's next (not yet visible) page contained relevant instructions, plus,a message for second -shift workers. (In this connection, I have been particularly troubled by one question which the present record leaves unresolved . Assuming, arguendo, that Cupples'',foreman may have had some reason-which he con- sidered good and sufficient-for skipping six to seven blank lines below the concluding portion of first-shift leadman's report on page 83 of Respondent 's logbook-and for record- ing his work directive, plus a message, on the following page -why was the book leaf in question turned back, and why was the book left open with page 83 rather than page 84 showing?) With matters in this posture, I am satisfied that Cupples' initial ,failure to turn the logbook's page-before beginning work-could reasonably have been considered ex- cusable, or, at least, understandable. Further, I am satisfied that Respondent's management-specifically Respondent's distribution superintendent-chose to consider Cupples' fail- ure culpably negligent primarily because of his previously disclosed resentment over Cupples ' grievance filing practices. My conclusion, that Respondent's claimed reliance upon Cupples' purported negligence-when justifying his termina- tion-must be considered pretextual, finds further support in record testimony which establishes that his "error" had de minimis consequences. As General Counsel notes, within his brief: Castleberry testified Cupples was making approximately $4.00 an hour and Elledge a little bit less at that time. The testimony revealed that the "mistake" which was made by Elledge and by Cupples was rectified in from 10 minutes minimum to 30 minutes maximum . In actual dollars and cents cost to the company, this "mistake" could not have cost the company more than $4.00. It could have cost the company as little as $1.50. Under these circumstances, Respondent's contention-that Cupples' oversight constituted such a serious blunder as to warrant a determination, confirmed at the highest level, that he deserved discharge-carries no`persuasion . N.L.R.B. v. Shattuck Denn Mining Co., supra. I conclude'-and`find that Respondent's proffered ground for his termination was pre- textual, and that Respondent's action derived from statutorily proscribed considerations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct described in section III, above-since it occurred in connection with Respondent's business operations, described in General Counsel's com- plaint and concededly described correctly therein-had, and continues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States; absent correction such conduct would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that Respondent engaged in and contin- ues to engage in certain unfair labor practices which affect commerce, I shall recommend that it be directed to cease and desist therefrom, and to take certain- affirmative action, in- cluding the posting of appropriate notices designed to effectu- ate the policies of the Act, as amended. Specifically, since I ,have found that Respondent violated Section 8(a)(3) and (1) of the statute through Douglas R. Cupples' discriminatory termination , I shall recommend that Respondent be required to offer him immediate and full rein- statement to his former position , or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and priveleges previously enjoyed. (The record contains a reference to some business- motivated layoffs following- Cupples' discharge; General Counsel concedes that, had Cupples still been in Respond- ent's hire, then, he would have been laid off together with other workers terminated for business reasons. With matters in this posture, General Counsel hasconceded, further, that no question is currently ,presented regarding the necessity or propriety of Cupples' reinstatement. Well-established deci- sional doctrine teaches, however, that reinstatement orders are normally considered both necessary and proper with re- spect to discharges found discriminatorily motivated . There- AIRCO INDUSTRIAL GASES fore, even assuming, arguendo, that Cupples would have been terminated sometime following his discharge date for nondis- criminatory reasons, determination is made herein that statu- tory policies will be best-effectuated by requiring Respondent to resinstate or'reemploy Cupples, should he seek future rein- statement or reemployment, when work becomes available for him. 'Cf. Pacific Powder Company, 84 NLRB 280, 285- 286. Compare: Colonial Corporation of America, et al., 171 NLRB No. 185; Quick Shop Markets, Inc., 168 NLRB No. 3Q. To dissipate the effects of Respondent's unfair labor prac- tices, therefore, Respondent should be ordered to given Cup- ples preference in filling any vacancy for which he may be qualified, should such a vacancy occur in future.) It will be recommended, further, that Respondent be required to make Cupples whole for any pay losses which he may have suffered because the discrimination practiced against him, by paying him a sum of money equal to, the amount which he would have earned as wages between the date of his discharge and the date of his reinstatement or placement on Respondent's preferential hiring list, less his net earnings during such period. Cupples' backpay -should be computed by ca'lender quarters, pursuant to the formula which the Board now uses. F. W. Woolworth Company, 90 NLRB 289. Interest thereon should likewise be paid, computed at 6 percent per year. See Isis Plumbing & Heating, 138'NLRB"716, in this connection. CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. Airco Industrial Gases-Pacific, A Division of Air Re- duction Company, Incorporated, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the mean- ing of Section 2(6) and (7) of the Act, as amended. 2. General Truck Drivers, Warehousemen and Helpers, Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain employees of Airco Industrial Gases-Pacific to membership. 3. Respondent, when it discharged Douglas R. Cupples because of his membership in or activities on behalf of the Union above-designated, or because he had engaged in other protected, concerted activities, discriminated and continues to discriminate, with regard to the hire, tenure, and terms and conditions of employment of its employees, thus discouraging their union membership and their participation in concerted activities for mutual aid or protection. Thereby, Respondent has engaged in and continues to engage in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section ' 10(c) of the Act, I hereby issue the following recommended: ORDER Respondent, Airco Industrial Gases-Pacific, A Division of Air Reduction Company, Incorporated , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging employees from becoming or remaining members of General Truck Drivers, Warehousemen, and Helpers, Local No. 315 , International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or from participating in Union or other protected , concerted activity for the purposes of collective bargaining or other mutual aid or protection, by discharging them, or by dis- 685 criminating in any other manner with respect to their hire or tenure of employment, or any term or condition of their employment, except as authorized under Section 8(a)(3) of the Act, as amended. (b) Interfering with, restraining or coercing employees-by discharges, or in any other manner-with respect to their exercise of rights which the National Labor Relations Act, as amended, guarantees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act, as amended: (a) Offer Douglas R. Cupples immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges previously enjoyed. (b) If no position is currently available which Douglas R. Cupples is qualified to, fill, then--upon his application within a reasonable time-place his name upon a preferential hiring list of employees temporarily laid off, and offer him employ- ment, with due regard for his seniority, when a suitable posi- tion becomes available, before hiring other persons. (c) Make Douglas R. Cupples whole for any pay losses which he may have suffered by reason of the discrimination practiced against him, consistently with the requirements set forth within the "Remedy" section of this decision. (d) Notify Douglas R. Cupples, if 'presently serving in the Armed Forces of the United States, of his right to full rein- statement under this recommended Order, upon application in accordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and make available to the Board or its agent, upon request, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports and all other records relevant and necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (f) Post at its place of business in Richmond, California, copies of the attached notice marked "Appendix."' Copies of the notice to be furnished by the Regional Director for Re- gion 20, shall be posted, immediately upon receipt, after being duly signed by Respondent's representative. When posted, they shall remain posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (g) File with the Regional Director of Region 20, within 20 days from the date of service of this Trial Examiner's Deci- sion, a written statement setting forth the manner and form in which it has complied with these recommendations? 1 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein shall, as provided in Sec 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. In the event that the Board's Order is enforced by a judgment of a United States Court of Ap- peals, 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." 1 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 20, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all sides were afforded oppor- tunities to present their evidence, it has been determined that this company violated the National Labor Relations Act. In order to remedy such conduct, we are being required to post this notice. WE WILL NOT discourage membership in, or activity on behalf of General Truck Drivers , Warehousemen And Helpers Local No. 315, International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers of America, nor will we discourage employees from as- serting rights or seeking benefits under the provisions of our collective-bargaining agreement with that labor or- ganization, by discharging them, or otherwise dis- criminating against them in regard to their hire, tenure of employment, or the terms and conditions of their employment. WE WILL NOT , in any like or related manner , interfere with, restrain, or coerce our employees in their exercise of rights which Section 7 of the National Labor Rela- tions Act protects. WE WILL offer Douglas R. Cupples, immediate and full reinstatement to his former position, or, if that posi- tioh no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed . If no substantially equivalent position exists, we will, upon his application within a reasonable time, place Douglas R, Cupples upon a list of employees -temporarily laid off and offer him employment , with due regard for his seniority on such a list, when suitable employment becomes availa- ble, before hiring other persons. WE WILL make whole Douglas R. Cupples for any pay losses which he may have suffered by reason of the discrimination practiced against him. AIRCO INDUSTRIAL GASES-PACIFIC (Employer) Dated By (Representative) (Title) We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. This is an official notice and must not be defaced by any- one. 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.