Quality Packaging Products, Inc.

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Packaging Products, Inc. and General Drivers and Helpers Local No. 823 affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 17-CA-4995 August 28, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 25, 1972, Trial Examiner Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order," as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, Quality Packag- ing Products, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified. Substitute the attached notice for the Trial Exam- iner's notice. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 N LRB 544, enfd . 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in General Drivers and Helpers Local No. 823 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, or any other union, by discharg- ing or otherwise discriminating against our 198 NLRB No. 153 employees because of their union or concerted activities. WE WILL NOT interrogate any employee con- cerning that individual's union activity, or that of any other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with loss of jobs or closing of the plant if a majority become members of, or assist, a labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Adam Bluma and Clifford Klepper immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. QUALITY PACKAGING PRODUCTS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E . MULLIN, Trial Examiner : This case was heard QUALITY PACKAGING PRODUCTS, INC. 1085 on April 6, 1972, in Iola, Kansas, pursuant to a charge duly filed and served,' and a complaint issued on March 20, 1972. The complaint, as amended at the opening of the trial, presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer, and amended answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the trial, the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, and to file briefs. The parties waived oral argument and on April 26, 1972, both the General Counsel and the Respondent submitted briefs. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Kansas corporation with a plant and principal place of business at Iola in that State , is engaged in the manufacture and sale of paper products and sandwich shop supplies for the fast food industry. In the conduct of its operations, the Respondent annually purchases goods and material valued in excess of $50,000 directly from sources located outside Kansas. In the course of a year, the Respondent sells and distributes products valued in excess of $50,000 to customers in 43 States. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that Quality Packaging Products, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers and Helpers Local No. 823, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Teamsters, or Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events About December 26, 1971, Adam J. Bluma, an over-the- road driver for the Respondent, contacted a representative of the Teamsters and asked assistance in organizing the Company's truck drivers. A day or two later, Dallas Walker, an assistant business agent for Local 823, met with Bluma and planned an organizational meeting with the drivers. On December 30, Walker met with the Respon- dent's drivers at a truck stop in Chanute, Kansas, where Bluma's wife operated a cafe known as Bluma's Restau- rant.' All of the Respondent's seven drivers were present and all signed authorization cards in the Teamsters at that time. At the conclusion of the meeting, Walker mailed a letter to Frank L. Ball, executive vice president of the Respondent, wherein he set forth the Union's claim to represent all of the over-the-road drivers and requested recognition as the bargaining agent for the drivers in such a unit. Insofar as the record discloses, the only other experience which the Respondent's management had had with umon or concerted activities occurred about a year earlier. According to John O'Mara, a driver in the Respondent's employ, late in November 1970, he and four other drivers had a meeting with Vice President Frank Ball at which they requested better wages and various fringe benefits. Ball promised to give them an answer at 3 o'clock that afternoon. When the drivers returned to his office at the appointed hour, Ball told them that all five were dis- charged, effective at once, and thereupon handed them their final checks. About a month later, Ball rehired O'Mara, but, according to the latter, he did so only after asking O'Mara: "Did you learn your lesson?" O'Mara further testified that at this same time, Ball told him he had concluded that Otis Tippy, another one of the drivers involved in the demand for more pay, had been what he described as the "instigator of the deal" and that Tippy would never be hired again. According to O'Mara, Tippy, in fact, was never rehired. O'Mara's testimony as to this incident was credible and it was in no way denied or contradicted by any witness for the Respondent.3 Frank Ball acknowledged having received the Union's request for recognition on about January 1, a Saturday. He testified that on the following Monday, he discussed it with Jack Ball, the president of the Respondent who was also his brother. O'Mara testified that on Sunday, January 2, he went to the Respondent's office to check his schedule for the following week and that while there he had a conversation with Frank Ball. According to O'Mara, he told Ball that he had signed a umon card. O'Mara testified that thereafter Ball asked whether anyone else had done so and, when he told the vice president that all the drivers had signed cards, Ball stated "You know we fired everybody a year ago, didn't you learn your lesson then?" According to O'Mara, Ball then asked who was the "instigator" of the organiza- tional campaign and when he (O'Mara) declined to answer, Ball declared "It was Bluma, wasn't it?" O'Mara testified that in concluding their conversation, Ball stated that "Jack [Ball] and him ... would never see a union, he would sell . . . out first."4 Frank Ball conceded that he had a conversation with O'Mara at the time and place in question, but testified that it was the employee who initiated the discussion of the Union. He denied having interrogated O'Mara as to his union activities or those of anyone else. However, he acknowledged having heard The charge was filed on January 24, 1972 the transcript is corrected in accordance therewith 2 On pp 48 and 53, the transcript incorrectly refers to this place as 9 The quotations in the foregoing paragraph are from O'Mara's Loomis' Restaurant In his brief, the General Counsel moved that this testimony reference be changed to read "Bluma's Restaurant " No objections having a The preceding quotations in this paragraph are from O'Mara's been raised by the Respondent to this proposal, the motion is granted and testimony 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Mara state, on this occasion, that all seven of the Company's drivers had signed union authorization cards. When on the stand, O'Mara acknowledged having introduced the subject of the Union in his conversation with Ball. His ensuing testimony as to the balance of the discussion had with Vice President Ball was credible and withstood an able cross-examination by counsel for the Respondent. Whereas Ball generally denied having interro- gated the employee as to his own or any other employee's organizational activities, these denials were unpersuasive. It is the conclusion of the Trial Examiner that O'Mara was a credible witness as to this particular incident and that the conversation with Ball occurred substantially as O'Mara testified. Jack Ball testified that at some time early in the week of January 2, his brother Frank informed him of the receipt of the Union's demand for recognition. He also testified that at some time, either then, or later in the week, his brother told him about the conversation with O'Mara and of the meeting which the drivers had had with the union representative. Jack Ball conceded that it was "possible" that Frank could have told him that, according to O'Mara, all seven of the drivers had signed union cards .5 On January 3,6 the Teamsters filed a representation petition wherein that Union sought an election for a unit made up of all the drivers in the Respondent's employ. At some point thereafter the Respondent agreed to an election which would be held on February 14.7 In a dismissal letter dated January 7, the Respondent discharged Clifford N. Klepper. In another letter, dated January 8, it discharged Adam J. Bluma. The General Counsel alleges that both discharges were in violation of Section 8(a)(3) of the Act. This is denied by the Respon- dent. About January 31, Paul Nance, one of the drivers, had a conversation with Jack Ball at the warehouse for Brice Wholesalers in Wichita, Kansas .8 According to Nance, during the course of their meeting,9 Ball asked him how he felt about "things." 10 Nance testified that he inquired as to whether Ball meant the Union and the latter answered in the affirmative. According to Nance, he told the president that he had signed a union card and although he was not certain as to how he would vote, he did want to see some changes. Nance testified that Ball concluded their conver- sation by telling him that the Company could do better for the employees without the Union. Jack Ball acknowledged that he had had a conversation with the employee at the time and place in question. According to Ball, Nance asked that he call a meeting of the drivers to settle their differences before anything came up for a vote, but that he told the employee that that would be impossible at that time (presumably because of the pending election), even though previously he had always felt that he should sit down and talk with anyone that worked for him. Although Ball generally denied having interrogated Nance about his 5 The quotation is from the testimony of Jack Ball 6 All dates that appear hereinafter are for the year 1972, unless otherwise noted r There is nothing in the record to indicate that this election was ever held. Presumptively, subsequent to the filing of the unfair labor practice charge on January 24, the Regional Director postponed all further proceedings in the representation case union activities, he did not specifically deny the conversa- tion as related by Nance. The Trial Examiner concludes that during the course of that discussion, Ball did question Nance as to the Union and thereby opened up the discussion about which both of them testified. Nance testified that on February 6, a Sunday morning, he was in the plant office with Frank Ball when the subject of the Union came up again. According to Nance, Ball told him that the Company did not need the trucks it was using at the time and that it could go back to making its shipments via Capital Truck Line, a common carrier that it had used at some point in the past. Nance further testified that before Ball concluded the conversation he stated that "two of the union instigators were no longer with us." Frank Ball did not deny the substance of the conversation which Nance attributed to him. According to Ball, Nance came to the office on that particular Sunday to get a travel advance prior to leaving on a scheduled trip and that after he had given the employee the money, he told him that such favors would be difficult to offer the drivers in the event they went ahead with their plans for a union. According to Ball, in concluding the conversation, he told Nance, "I am sure that in the future . . . I will not be able to open up the cash box on Sunday and do you a favor such as you've asked me to do today." B. The Alleged Violations of Section 8(a)(3); Findings and Conclusions in Connection Therewith 1. Adam J. Bluma Bluma was a truckdriver in the Respondent's employ from August 2, 1971, until January 8, 1972. As noted earlier, in the latter part of December he contacted Union Organizer Dallas Walker and thereafter arranged for a meeting of the Respondent's employees at which all of the drivers, including Bluma, signed cards in the Teamsters. To the facts in connection with his termination we will now turn. On January 6, Bluma incurred a back injury while on duty. Early on the following morning he left Iola on a trip that was scheduled to last until January 9. When he reached McPherson, Kansas, he visited a doctor who advised him that he should not drive until his back injury improved. Bluma thereupon telephoned Frank Ball, explained his difficulty and told him that he would endeavor to complete his deliveries if no replacement could be secured. Ball told Bluma that he was aware of his situation and thereafter arranged for another driver who was in Wichita at the moment with an empty truck to drive to McPherson and exchange units with Bluma. As a result, that afternoon Bluma began the returnjourney to Iola, this time with an empty trailer. He arrived at the plant dock about 7 p.m. The normal practice for a returning driver required that he detach the trailer at the plant warehouse, and then 8 President Jack Ball apparently was at this location in Wichita, a substantial portion of the time What business connection , if any, the Respondent had with Brice, other than that of supplier or customer, does not appear in the record 9 At the time, Nance was in the process of unloading an order at the Brice Warehouse 10 The quotation is from Nance's testimony QUALITY PACKAGING PRODUCTS, INC. 1087 deliver the tractor to the Ryder Truck Lease Station some 10 blocks away where the tractor would be serviced prior to another departure. The process of detaching the trailer from the tractor required cranking a "dolly" down into position so that the trailer would be supported after the tractor was driven away. While this was an operation that could be performed by one man, it required a considerable amount of physical exertion. Bluma testified that on arriving back at the plant on the evening of January 7, there were no warehouse employees at the scene, and, because of his physical condition, he did not detach the trailer and return the tractor to the Ryder station. Instead he backed the trailer into the lot and left it, along with the tractor, and then departed for his home. About 9 a.m. the following morning Frank Ball tele- phoned Bluma. He testified that he found that Bluma was still in bed at the time but that he talked with him then because he was concerned as to whether the employee would be able physically to make a trip to Ohio what was scheduled to leave the following Monday. Later that morning, Ball telephoned Bluma again and told him that the trip to Ohio would start at 8 a.m., on January 10, rather than 6 a.m., as originally scheduled. At no time during either of these conversations did Ball question Bluma as to why he had not returned the tractor to the Ryder station the evening before. When Bluma reported for duty on the following Monday morning, Ball handed him a dismissal letter, dated January 8, which stated that the employee was being terminated, effective at once, for having failed to comply with a company rule that on coming back from a trip the driver should return the tractor to the Ryder station. Bluma testified that at this point he tried to explain to Ball that on Friday evening, due to his back injury, he had been unable to "dolly" the trailer down and return the tractor toRyder. According to Bluma, Frank Ball's only response was, "rules are rules and there was no excuse for violating them." The rule to which Frank Ball referred was embodied in a five-page statement of company policies which became effective on January 3. Copies of this document had been handed to each driver on December 22, when he received his last paycheck before Christmas. The preceding Septem- ber, Ball had called a meeting of the drivers at which time a representative of Ryder had emphasized his company's desire that each tractor be returned to the Ryder station immediately after a trip so that it could be serviced prior to further usage; After the September meeting, there ap- peared on the drivers' bulletin board the following announcement: Leave your trailer here and your tractor at Ryder Station at the end of each of your runs. Frank Ball conceded that subsequent to December 22 when the new rules were given to the employees along with their paychecks, no meeting was held with the employees to emphasize their significance. He also acknowledged that at no time between September and January had the employees been told that failure to comply with such rules would be grounds for dismissal. Bluma credibly testified that he left his tractor at the company dock about six different times during the period from September to January and that on none of these occasions had he been warned or threatened with dis- charge.ii Similarly, Paul Nance credibly testified that during the past year he left his tractor at the plant about 12 times, either because he returned to Iola late, or because the warehouse crew needed the tractor for moving other trailers. John O'Mara likewise testified, credibly, that during approximately the same period he left his tractor at the plant about six times. In none of the foregoing instances was any driver warned or disciplined for having breached the rule about returning the tractor to the Ryder station. Frank Ball conceded that about 8 or 9 p.m. on January 7 he saw Bluma's tractor and trailer parked at the warehouse and that he noticed it again in that same location about 8 a.m. the following morning. Notwithstanding this knowl- edge, at 9 a.m. on Saturday, when he had a telephone conversation with Bluma, he never mentioned the matter of the tractor not having been returned to Ryder. Instead, the entire conversation, according to Ball's own testimony, was concerned with whether Bluma's physical condition would permit him to handle a trip scheduled to depart the following Monday morning. Later that morning, Ball had a second conversation with Bluma, and, again, no mention was made by the company official of any alleged derelection on the employee's part. Instead, Ball merely confirmed with Bluma that the trip scheduled for Monday morning would depart at 8 a.m. rather than 6 a.m. Frank Ball testified that after these conversations with Bluma he had a three-way telephone conference with President Jack Ball and Larry Manion 12 and at that time it was decided to dismiss Bluma for having violated the plant rule about returning tractors to the Ryder station. Both Jack Ball and Frank Ball denied that the matter of union membership was discussed at any time during their deliberations. However, both conceded, as found earlier herein, that they had been apprised through Frank Ball's conversation with O'Mara on January 2 that recently all of the drivers had signed union cards. The General Counsel contends that the termination of Bluma was in reprisal for his union activities, an allegation that is denied by the Respondent in its entirety. It is the conclusion of the Trial Examiner that the General Counsel's allegation is well founded for the reasons which appear below. In its brief the Respondent asserts, correctly, that the General Counsel has the burden of proving discrimination, and that the Respondent does not have the burden of establishing the contrary. Indiana Metal Products Corp. v. N. L. R. B., 202 F.2d 614, 616 (C.A. 7). See also N. L. R. B. v. Kaiser Aluminum & Chemical Corp., 217 F.2d 366, 368 (C,A. 9); N. L. R. B. v. McGahey, 233 F.2d 406, 413 (C.A. 4); N. L. R. B. v. Soft Water Laundry Co., 346 F.2d 930, 936 11 However, Bluma conceded that prior to doing so, in each of those personnel for moving other trailers around during the loading process instances, he discussed the matter with Harold Hoffman, supervisor of 12 Ball described Manion as a member of the corporate board of loading at the warehouse , and that each time Hoffman told him to leave the directors and the Respondent's credit manager tractor at the warehouse so that it could then be used by warehouse 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (C.A. 5). Moreover, the burden of proof never shifts from the General Counsel and the Respondent does not have the burden of proving that it discharged an employee for the reason which it asserts. As was said by a court of appeals in an early case, so long as the provisions of the Act are not violated, an employer may discharge an employee for "a good reason, a poor reason or no reason at all." Budd Mfg. Co. v. N.L.R.B., 138 F.2d 86, 90 (C.A. 3), cert. denied 321 U.S. 773. At the same time, it is also true, that an employer does not ordinarily discharge an employee for "no reason at all," and that support for a finding of unlawful motivation " is agumented [when] the explanation of the discharge offered by the respondent [does] not stand up under scrutiny." N.LR.B. v. Bird Machine Company, 161 F.2d 589, 592 (C.A. 1). Bluma was dismissed, without warning, for the alleged breach of a recently promulgated rule which, according to the credible testimony of three drivers, in the past had never been scrupulously observed. Nevertheless, on Janu- ary 8, after a conference of the board of directors, the decision was made to terminate Bluma, summarily. It is relevant to note that at that time Jack and Frank Ball had received the Union's request for recognition and from O'Mara they had learned that all of their drivers had signed union cards. Approximately 13 months earlier when O'Mara and four other dnvers had banded together and sought a pay raise and other benefits, they were dismissed within a matter of hours.13 On January 2, when O'Mara disclosed to Frank Ball that all the drivers had signed cards for the Teamsters, Ball reminded him: "You know we fired everybody a year ago, didn't you learn your lesson then?" In this same conversation, Ball questioned O'Mara as to who was the "instigator" of the organizational campaign and when the employee declined to answer, Ball volun- teered "It was Bluma, wasn't it?" Thereafter, Ball told O'Mara that his brother, Jack Ball, would never see a union, he would sell. . . out first." The timing of the discharge immediately after all the drivers selected the Union provides persuasive evidence of discrimination. N.L.R.B. v. Tennessee Packers, Inc., 390 F.2d 782, 784 (C.A. 6); N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344, 345 (C.A. 6) As one court stated: "[i]t stretches credulity too far to believe there was only a coincidental connection between [the discovery of the employee's activity] on behalf of the Union . . . and the abrupt termination of [his] employment...." Angwell Curtain Co. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). The celerity with which the Respondent' s management moved to dismiss Bluma, an employee whose work record had not been questioned prior to the alleged violation of the plant rule that had been promulgated so recently, was not a normal reaction. Here, the Respondent's "demand for strict compliance [with the rule on returning tractors to the Ryder station] . . . is more consistent with antipathy for union activity than concern over the plant rules." N.L.R.B. v. General Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8). It is the conclusion of the Trial Examiner, on the facts present here, that the purported concern of the Respondent's officials with Bluma's having failed to comply with the rule on tractors was a pretext and that the real reason for the employee's precipitate termina- tion was his union activities . N.LR.B. v. General Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8); N.L.R.B. v. D'Armigene, Inc., 353 F.2d 406, 409 (C.A. 2); Saginaw Furniture Shops v. N.LR.B., 343 F.2d 515, 518 (C.A. 7); Time-O-Matic, Inc. v. N.LR.B., 264 F.2d 96, 102 (C.A. 7). Consequently, the Trial Examiner concludes and finds that by its discharge of Bluma, the Respondent violated Section 8(a)(3) and (1) of the Act. 2. Clifford N. Klepper Klepper was employed as a truckdriver from January 1971 until January 7, 1972. Along with all the rest of the drivers for the Respondent, Klepper attended the Team- sters meeting on December 30, 1971, and signed an authorization card. Klepper had an excellent driving record. At the trial Frank Ball described him as the "best driver we had." 14 Nevertheless, he was discharged on January 7, allegedly for having taken the wrong tractor on a trip to New Orleans. Klepper testified that on December 30 he went to the shipping office to check the schedule for the following week. At that time he saw that he was posted to leave on Monday morning for a trip to New Orleans with Trailer No. 5. Klepper credibly testified that at that time the schedule had no specific tractor assigned to that trip. At the scheduled hour on the following Monday morning, January 3, Klepper went to the Ryder station, secured a tractor and then returned to Respondent's warehouse where he found Trailer No. 5, loaded and ready. Klepper testified that at 7 a.m. when he was ready to depart, no supervisory personnel were present and that he made no attempt to contact them anywhere else because the orders and all the necessary papers for the trip were in their customary place at the rear of the trailer. On the afternoon of January 3, and while enroute to New Orleans, Klepper telephoned Frank Ball's office, in keeping with a plant requirement that a driver make a daily report on his position. When he did so, Ball came on the telephone and immediately asked which tractor Klepper had. The latter told him that it was No. 18734. Ball thereupon declared, according to Klepper, "I thought so ... You know that [tractor] goes to California and California only." Klepper told him that he was unaware of any such restriction on the tractor. According to the latter, Ball then asked him when he would be back and when Klepper told him that he would return to Iola by Friday night, Ball told him "If you are back by Friday night, everything will be all right." Ball's testimony as to this conversation was in substantial accord with that of Klepper. Ball testified that Tractor No. 18734 was scheduled to leave for California on Saturday morning, January 8, and in the telephone conversation he told Klepper that he (Klepper) would be in trouble unless he was able to return by Friday night. Ball conceded that 13 Whereas this incident, having occurred in November 1970, and shed light on the true character of matters working within the limita- beyond the Sec 10(b) period, may not serve as the basis for an unfair labor tions. . " Local Lodge No 1424, ]A M v N.LR.B, 362 U S. 411, 416 practice finding, it is relevant background evidence that "may be utilized to 14 The quotation is from Frank Ball's testimony. QUALITY PACKAGING PRODUCTS, INC. 1089 Klepper assured him that he would return by Friday evening. Klepper did, in fact, return by Friday evening. At that point, a letter of dismissal, dated Friday, January 7, and signed by Ball had already been prepared. However, it was not actually given to Klepper until the following Monday morning when he reported for work, and Ball handed him the letter, along with his final check. In the letter Klepper was notified that effective as of January 7 he was dismissed: for failure to comply with written and posted policies and schedules, namely "taking a tractor that was previously posted and scheduled for two other trips." At the trial Frank Ball testified that at the time Klepper left Iola on January 3, Tractor No. 18734 was scheduled for a trip to Kansas City on Tuesday and for another to California starting on Saturday. A truck schedule for the week of January 2 was offered in evidence. Much of this schedule was filled out on a typewriter. This included the assignment of Klepper to New Orleans and Houston and of various other drivers to other trips for that week. A Kansas City trip was assigned to a driver named Blasen- gym on Monday and there was another column set aside for trips to Northern California. In addition to the foregoing, all of which was typewritten, there appeared on the exhibit various additional notations in a handwritten script. Thus, after Blasengym's name there appeared in pencil the number "18734," and in the column for Northern California there appeared the names of drivers Nance and Ross and a scheduled departure of 6 a.m. on January 9 with Tractor No. 18734. Klepper testified that at the time he examined the schedule prior to departure for New Orleans there were no such notations written on the sheet, and that it listed the trailer assigned to each driver, but had no assignments of the tractors. Klepper's testimo- ny was credible. Moreover, he further testified, credibly, that until his telephone conversation with Ball on the afternoon of January 3 he had never been told that Tractor No. 18734 could be used only for California trips. No. 18734 had a heavy duty engine and, from Frank Ball's testimony it is clear that this tractor had been secured principally for the cross-mountain hauling neces- sary on trips to the West Coast. On the other hand, it is likewise clear that it was used on other trips as well. From Ball's testimony alone it would appear that on January 3, No. 18734 was assigned to a Kansas City haul. Even more significantly, Klepper testified that on three earlier occa- sions he had used that same tractor for other trips, none of which was to California, and no one had ever criticized him. Frank Ball conceded that there were no written rules on the use of No. 18734. Although the Respondent contends that Klepper was discharged for having caused it substantial inconvenience by taking the wrong tractor to New Orleans, at the trial, Frank Ball had considerable difficulty in attempting to explain the alleged inconvenience which Klepper had caused the Respondent. According to the schedule, which Ball claimed had been prepared before Klepper's depar- ture, the California trip for No. 18734 was not posted to begin until 6 a.m. on Sunday, January 9. Since Klepper returned on Friday, January 7, this allowed over 24 hours for any necessary servicing of the tractor at the Ryder station. From Ball's own admission when on the stand, it is apparent that the Respondent's inconvenience resulted from Ball's assumption that Klepper would never complete the round trip to New Orleans and Houston before Friday night. Thus, notwithstanding Klepper's promise, made to Ball in their telephone conversation, that he would be back by Friday, Ball testified that he concluded this would be impossible since it had never been done before. Ball testified that, in accordance with that assumption, early in the week the shipping office proceeded to reschedule trips, trucks, and drivers. Consequently, it was obviously somewhat surprising to Ball when Klepper, in fact, did return by Friday evening. Notwithstanding Klepper's return, precisely as he had promised, the Respondent had already prepared a dis- charge notice. Jack Ball testified that the decision to terminate this driver was reached on the morning of January 7. The Respondent's precipitate action in discharging, without warning, an employee whom its vice president described as the Company's best driver, was "not natu- ral." 15 As found earlier herein, Klepper credibly testified that at the time he examined the drivers' schedule there was nothing to indicate that Tractor No. 18734 was unavailable for general usage that week. On January 3, when Klepper telephoned the home office and Frank Ball found that Klepper had this tractor, he assured Klepper that if he returned by Friday night "everything will be all right." Nevertheless, the following Friday morning, the Respondent made the decision to discharge this employee, for the alleged inconvenience he had caused by tak- ing Tractor No. 18734. Within the next 24 hours the Respondent terminated Adam Bluma, another driver, as has been found earlier herein, for discriminatory reasons, and on February 6, when Frank Ball had a conversation with Paul Nance in which the Union was discussed, Ball commented that "two of the union instigators [are] no longer with us." In view of the foregoing findings, it is the conclusion of the Trial Examiner that the reason offered for the termination of Klepper was a pretext and that the real motive for his discharge was that he had signed a union card only a few days earlier. N.L.R.B. v. General Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8), and cases cited supra. C. The Alleged Violations of Section 8(a)(1); Findings and Conclusions in Connection Therewith As found earlier herein, in the conversation about the union campaign between employees O'Mara and Frank Ball on January 2, the Respondent's vice president, after reminding O'Mara that the preceding year his concerted activities had resulted in his discharge, asked the employee 15 Cf, E Anthony & Sons v N L R B, 163 F 2d 22, 26 (C A D C.), cert summarily, without preliminary warning, admonition or opportunity to denied 332 U S 773, where the court there said, in sustaining the Board's change the act or practice complained of Such action on the part of an finding of a discriminatory termination "these employees had been long- employer is not natural " time, responsible and faithful employees. All were discharged 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . didn't you learn your lesson then?" This was an obvious threat that union activities could lead to O'Mara's dismissal for a second time. As such it constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. It was also a violation of that section of the Act, for Ball, during that same conversation, to question O'Mara as to whether his coworker Bluma was the "instigator" of the Teamsters campaign, and to close the conversation with the declaration that his brother, Jack Ball, the Respondent's president ". . . would never see a union, he would sell ... out first." 16 On January 31, Jack Ball questioned employee Paul Nance as to his attitude toward the Union and, after the employee conceded that he signed an authorization card, the Respondent's president told him that the Company could do better for the employees without a labor organization representing them. In the light of the Respondent's unlawful discharges of Bluma and Klepper earlier in the month, Ball's interrogation of Nance was coercive, and a violation of Section 8(a)(1). Similarly, it was a violation of that section for Ball to offer the employee an implied promise of benefit, as he did in this conversation, by suggesting that the Company would do better for the drivers without a union. On February 6, in a conversation with employee Nance, during which the Union was discussed, Vice President Ball intimated that the Respondent might resume using a common carrier, which he named, for its shipments and deliveries. Since such a move would eliminate the need for the Respondent's trucks and its corps of drivers, Ball's statement was tantamount to a threat to close the business rather than deal with the Union and, as such, was coercive within the meaning of Section 8(a)(1). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Adam J. Bluma and Clifford N. Klepper, thereby discour- aging membership in the Union, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor 16 Frank Ball's statement was an obvious threat to close the business in the event of unionization It was not a permissible "prediction as to the precise effects he beheve[d ) unionization [would I have on [the I Company " N L R B v Gissel Packing Co, 395 U S 575, 618. 17 There was testimony that, by letter dated March 31, 1972, the Employer offered Klepper reinstatement, with a request that he respond by noon of the following day This letter was not submitted in evidence Consequently, it is not clear whether the letter constituted a valid and unconditional offer of reinstatement that would terminate the Employer's backpay obligation In any event, at the time of the hearing on April 6, 1972, Klepper had not been reinstated Left unanswered was the question, inter aha, as to whether the employee was given a reasonable opportunity to conclude any interim employment that he had secured The Board has held that where a discriminatee is employed elsewhere at the time of a practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , the Trial Examiner will recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatonly terminated Adam J. Bluma and Clifford N. Klepper, the Trial Examiner will recommend that the Respondent be ordered to offer both of these employees immediate and full reinstatement without prejudice to their seniority or other rights and privileges , and make them whole for any loss of earnings they may have suffered from the time of their discharge to the date of the Respondent's offer of reinstatement.17 The backpay for the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. It will also be recommended that the said Respondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. Since "a discriminatory discharge of an employee .. . goes to the very heart of the Act" (N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4), it will be recommend- ed that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommend- ed: 18 ORDER Respondent, Quality Packaging Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against any employee because of activity on behalf of, or membership in, General Drivers and Helpers Local No. 823 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. (b) Interrogating any employee concerning that individu- reinstatement offer, the offer should accord the employee the right to give his new employer reasonable notice, up to 2 weeks, before returning to work for his former employer Block-Southland Sportswear, 170 NLRB 976, 981-982, enfd. 420 F.2d 1296 (C.A D C.), Thermoid Company, 90 NLRB 614, 616 But see * N L R B v Betts Baking Company, 428 F.2d 156. 158-159 (C A. 10) Under the circumstances, this matter may be left for the compliance stage of this proceeding is 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, 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. QUALITY PACKAGING PRODUCTS, INC. 1091 al's union activity, or that of other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. (c) Threatening its employees with loss of jobs or closing of the plant if a majority become members of, or assist, a labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Adam J. Bluma and Clifford N. Klepper immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary, or appropriate, to analyze the amount of backpay due. (c) Notify immediately the above-named individuals, if they are presently serving in the Armed Forces of the United States of their right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service and the Universal Military Training and Service Act. (d) Post at its plant in Iola, Kansas, copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, includ- mg all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this decision, what steps the Respondent has taken to comply herewith 20 19 In the event that the Board's Order is enforced by a Judgment of a 20 In the event that this recommended Order is adopted by the Board United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read: Order of the National Labor Relations Board" shall read "Posted Pursuant "Notify the Regional Director for Region 17, in writing, within 20 days to a Judgment of the United States Court of Appeals Enforcing an Order of from the receipt of this Order , what steps the Respondent has taken to the National Labor Relations Board." comply herewith"