Hast, Inc.

BAST, INC 655 Hast, Inc and Teamsters Local Union No 443, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Case 1-CA-7893 November 30, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 3 Having found, in agreement with the Administrative Law Judge, that Respondent violated Sec 8(a)(5) and ( 1) of the Act by unilaterally discontinuing its paid sick leave policy we shall order Respondent to reinstate its former policy and to make its employees whole for any loss of pay they may have suffered as a result of its discontinuance Such an order is necessary to restore the employees to the status existing before Respondents unlawful unilateral action See Steere Broadcasting Corpora Lion 158 NLRB 487 488 fn 3 Newberry Equipment Company Inc 157 NLRB 1527 1528 APPENDIX On August 10, 1972, Administrative Law Judge' Samuel Ross issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Hast, Inc, New Haven, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified 1 Add the following as paragraph 2(c) and renumber paragraphs 2(c) through (e) as 2(d) through (f), respectively "(c) Reinstate the paid sick leave policy which was discontinued on August 12, 1971, and make its employees whole for any loss of pay they may have suffered as a result of its discontinuance " 2 Substitute the attached notice for the Adminis- trative Law Judge's notice IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges unfair labor practices not found herein 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19, 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge 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 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board The Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any and all these things WE WILL NOT do anything that interferes with these rights More specifically, WE WILL NOT discourage union activity or membership in Teamsters Local Union No 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminating against you if you choose to engage in union activity or join that union or any other union Since it was decided that we violated the Act by terminating the employment of Earl Guadmo because he engaged in union activities, WE WILL offer him full reinstatement to his formerjob, and WE WILL pay him for any loss he suffered because we fired him WE WILL NOT engage in conduct or make statements that convey the impression that we are subjecting your union activities to surveillance WE WILL NOT threaten you with discharge, layoff, closure of the business, or any other reprisal to discourage your support of the above- named or any other union WE WILL respect your rights to self-organiza- tion, to form, join, or assist any labor organiza- tion, or to bargain collectively in respect to terms or conditions of employment through Teamsters, Local Union No 443, a/w International Brother- 200 NLRB No 102 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights WE WILL NOT unilaterally, without notice to, or bargaining with the above-named Union, change the terms and conditions of our employees in the bargaining unit described below All full-time and regular part-time drivers employed by us at our New Haven, Con- necticut, office and terminal, but excluding all office clerical employees, professional employees, summer seasonal employees, guards, general foreman, foreman and all other supervisors as defined in the Act WE WILL reinstate the paid sick leave policy which we discontinued on August 12, 1971, and WE WILL pay you for any loss you suffered because we discontinued this policy You and all our employees are free to become members of any labor organization, or to refrain from doing so HAST, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner On a charge filed by the above-named Union on October 1, 1971, and amended on November 12 and December 28, 1971, a complaint issued on December 30, 1971, which alleges that Hast, Inc (herein called Respondent or the Company), engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act More specifically, the complaint charges that the Respon- dent violated the Act by engaging in coercive interrogation of employees regarding their union activities, by creating the impression to its employees of surveillance of their union activities, and by threatening employees with plant closure and with other reprisals if the Union became their collective-bargaining representative The complaint further charges the Respondent with firing Earl M Guadino, one of its employees, because of his union membership and activities, and with failing and refusing to bargain with the Union as the exclusive representative of its employees in an appropriate unit, by unilaterally altering its existing sick leave policy, and by engaging in conduct designed to effect a repudiation of the Union The Respondent filed an answer which denies that the Board has jurisdiction over its operations, that the Union is a labor organization, that it discharged and refused to reinstate the alleged discnmi- natee, and all the other substantive allegations of the complaint Pursuant to due notice, a hearing in this case was conducted before me at New Haven , Connecticut, on February 2, April 25, and 26, 1972 Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following FINDINGS OF FACT I COMMERCE The Respondent is a Connecticut corporation which maintains an office and place of business in New Haven, Connecticut, and is engaged in the business of a common and contract carrier which provides pickup, delivery, and messenger service for regular and special customers, including Eastman Kodak Co, American Optical Co, and Bausch and Laumb In the course of said business the Respondent picks up and delivers film, phonograph records, optical and dental supplies, payroll records, and other articles, and transports and delivers them from and through various States of the United States as an essential link in the transportation of said articles in interstate commerce During the past year, a representative period, the Respondent derived gross revenues in excess of $50,000 from the transportation of articles and commodities in interstate commerce for Eastman Kodak Co and other enterprises, each of which annually produces and ships goods valued in excess of $50,000 directly out of the State in which such enterprise is located On the foregoing facts, which now are admitted, the Respondent concedes, and I find, that it is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It is no longer disputed, and I find, that at all times material herein the Union named in the caption above has been a labor organization within Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background As noted above, the Respondent is a common and contract carrier which picks up and delivers packages for its regular and other customers The packages which the Respondent transports vary in weight from less than an ounce to about 50 pounds, 95 to 98 percent of its freight HAST, INC 657 ranges from 1 to 10 pounds In the conduct of this business, the Respondent utilizes for the most part about 20 to 25 compact cars which are especially equipped with but a single bucket seat for the driver, thus providing space both alongside and in back of the driver for the packages which are to be transported m At the times material herein, the Respondent employed 1 I drivers who worked out of its New Haven location, 6 who worked out of Hartford, Connecticut, and 1 who drove in the Bridgeport, Connecti- cut, area B The Union's Organizational Campaign the Employer who are based at its 222 Farren Avenue, New Haven, Connecticut location, but excluding all office clerical employees, professional employees, summer seasonal employees, guards, General Foreman, Foreman and all other supervisors as defined in the Act On the latter date, the election took place, and the Tally of Ballots disclosed that the Union received a majority of the (10 out of 17) votes cast in the election There were no challenged ballots, and no objections having been filed to the conduct of the election, on August 19 the Director certified the Union as the exclusive representative of the Respondent's employees in the above-described unit In the latter part of April or early in May 1971,2 Earl Guadino, one of the Respondent's New Haven drivers, after a discussion with several of the Company's other drivers, visited the Union's office and talked to Union Organizer Samuel Kasowitz with a view to getting the Union to act as the collective-bargaining representative of Respondent's drivers Kasowitz furnished Guadmo with blank union authorization cards for execution by the employees, and instructed him as to how they should be completed During the month which followed, Guadino solicited 10 of the Respondent's New Haven drivers to sign the Union's authorization cards, and he and 8 others did so Guadino also solicited and secured the signature to a union card by the Respondent's Bridgeport driver In early June, Guadmo turned the executed cards over to Union Organizer Kasowitz On June 29, Kasowitz visited the Respondent's New Haven place of business, and in the absence of Henry Stoddard, the Respondent's president, he left his calling card and a proposed Stipulation for Recognition of the Union (G C Exh 4) with Foreman Lawrence King, an admitted supervisor of the Respon- dent 3 As noted above, on July 6 the Union filed a petition for certification as the exclusive collective-bargaining repre- sentative of Respondent's drivers On July 22, the Acting Regional Director of the Board, Region 1, approved an agreement between the parties for the conduct of a consent election on August 11 among the Respondent's employees in the following appropriate unit All full-time and regular part-time drivers employed by i The Respondent also has a few small delivery type trucks 2 All dates hereinafter refer to 1971 unless otherwise noted 3 Kasowitz testified that this visit to the Respondents place of business occurred on July 5 but his testimony disclosed uncertainty in respect to dates and the Union s petition for certification as the representative of the Respondents drivers (Case 1-RC-I 1 659) filed on July 6 states that the demand for recognition was made on June 29 I therefore regard June 29 as the more reliable date of Kasowitz visit to the Respondents place of business Respondents president Henry Stoddard denied that he ever saw the Stipulation for Recognition which Kasowitz left with King However, in the light of King s admission that Kasowitz in addition to his calling card left some papers in an envelope which King then turned over to the girl in the office for Stoddard, I regard the latter s denial as unworthy of belief and I do not credit it 4 She quit her employment shortly after the Board election 5 Schwab s testimony does not reveal the nature of the interrogation about the Union 6 The findings above are based on the testimony of Schwab which I regard as reliable and credit Stoddard denied that he ever threatened employees with discharge or with closing the Company s doors, if the Union came in Stoddard also denied that he spoke to any employee during C Interference, Restraint, and Coercion of Employees On July 13, the Respondent posted in its New Haven office a notice which the Board had furnished in connec- tion with the Union's petition for certification That same day at about 11 a in , Henry Stoddard, the Respondent's president, told Patricia Schwab, who then was employed as one of the Company's dnvers,4 that he wanted to see her before she left on her next trip When Schwab entered the office, Stoddard, in the presence of Foreman Lawrence King, asked her "about the Union" and they talked about the Union 5 During the course of their conversation, Stoddard told Schwab "that if the union came in that he would close the doors," and that she would see the biggest layoff that I had ever seen " Stoddard further said that he did not know where Schwab would be "on the list," apparently referring to a seniority list which would be used for selecting employees for layoff Schwab replied "that I would take my chances " As Schwab began to leave the office, Stoddard said, "You should be very happy about this " Schwab asked, "What do you mean by you'" Stoddard answered, "Well, you went down to the Union hall " Schwab denied that she had, and then left the office 6 About a week or so before the Board election, Stoddard had a conversation with Leonard Alfono, one of the Respondent's drivers, in which he told Alfono that "he dust couldn't afford" a union, and that if it came in, "he would close the doors," "lay off a lot of people," and/or effect the month of July concerning union activities I regard Stoddard s testimony as generally unworthy of much, if any reliance for the following reasons As previously noted Stoddard denied ever seeing the recognition agreement which Union Organizer Kasowitz according to Foreman King s admission left for Stoddard s perusal (see fn 3 supra) Moreover although by his own admission the filing by the Union of its petition for certification signalled to Stoddard that something was amiss in his relationship with his employees and he admittedly was hurt because they had gone behind his back to contact a stranger to deal with him on their behalf Stoddard professed a lack of interest in whether or not his employees were or were not represented by a union and he specifically denied that he did not want a union in his place I regard that testimony as implausible and incredible in the light of Stoddard s admitted action the day after the election (more fully described hereinafter) of announcing to employees both the results of the election and the termination of his prior practice of allowing them 5 days of paid sick leave each year As hereinafter found that conduct clearly was an act of reprisal to punish employees for designating the Union as their representative and belies his testimony that he was not opposed to the Union In view of the foregoing as well as demeanor I place little reliance in Stoddard s testimony and I do not credit his denials of Schwab s testimony which I credit 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other drastic changes, such as selling the Company's cars and requiring the drivers to use their own cars to make the pickups and deliveries 7 Alfono also had several conversations with Foreman Lawrence King about the forthcoming election These resulted when Alfono asked King, "What about the Union9 What is going to happen " On these occasions, according to Alfono's credited testimony, King said that if the Union came in, the Respondent would close its doors 8 According to the credited testimony of Earl Guadino, about a week or two before the Board election, Foreman King told him that "if this union gets in here you are going to see a lot of changes around here In fact, you won't even have a fob " When Guadino then expressed his opinion that he could not be let go "just like that" as long as he did his work, King replied, "Would you want to bet $5 that you won't have a job if the Union gets m9" Guadino answered, "No "9 Prior to the Board election, the Respondent allowed any employee who had been in its service for 3 months to take 5 days of paid sick leave each year If the sick leave was not used by eligible employees, it could be taken either as additional vacation time, or at the employee's option, he could instead receive extra pay therefor As previously noted, the Union won the Board election which was conducted on August 11 The following day, President Stoddard admittedly called the drivers together and announced to them the results of the election, and that the Respondent would no longer pay them for sick leave Guadino was absent on August 12 when Stoddard announced the election results and the discontinuance of paid sick leave to Respondent's employees On the following day when Guadino returned to work, Stoddard told him that he had had a talk with the employees about the Union, and that he might as well tell Guadino what he had said to them According to Guadino's credited testimony, Stoddard then said, Now that the union is in l.ere there is going to have to be a lot of changes here There may have to be some men laid off We may have to drop some routes You guys did me a terrible injustice You stabbed me in the back You [should have] come to me before you joined the union, but instead you stabbed me in the back 10 D Concluding Findings in Respect to the Alleged Violations of Section 8(a)(1) and (5) of the Act The complaint alleges that by the conduct enumerated in section III C of this Decision, the Respondent (1) Unlawfully interrogated employees concerning their union activities and support, (2) conveyed to employees the impression of surveillance of their union activities, (3) threatened employees with discharge and other reprisals if, and because, the Union became their collective-bargaining representative, and (4) unilaterally and without notice or 7 The findings above are based on Alfono s testimony which I credit Stoddard denied making these statements to Alfono but for reasons previously explicated I regard his denial as unworthy of credence 8 King denied that he ever had any discussion with Alfono about the Union but as explicated infra I regard King s testimony as generally unreliable and I do not credit his denial 9 In respect to this incident King s only testimony was to deny that discussion with the Union changed the working conditions of its employees by discontinuing the paid sick leave policy The latter conduct also is alleged to be a failure and refusal to bargain with the Union within the meamng of Section 8(a)(5) of the Act (1) The only testimony regarding the allegedly unlawful interrogation of employees by Respondent was that given by Schwab, that on July 13, Stoddard "asked me about the Union " As previously noted (see fn 5, supra), Schwab's testimony did not disclose the nature of Stoddard's interrogation I therefore conclude that the evidence fails to support the allegation of unlawful interrogation con- tained in paragraph 8(a) of the complaint, and it should be dismissed (2) As found above, in the same July 13 conversation, Stoddard accused Schwab of visiting the union hall The accusation clearly implied that Stoddard had knowledge of her visit to the Umon, for despite Schwab's denial of the accusation when it was made, she had in fact gone "down to the Union" after she signed a union authorization card Stoddard's accusation thus clearly created the impression that Respondent was subjecting the union activities of its employees to surveillance, and the Respondent thereby interfered with, restrained, and coerced employees in the exercise of their rights under the Act, and thus violated Section 8(a)(1) thereof (3) As found above, on July 13, Stoddard also told Schwab that if the Union came in, he would close the doors and there would be a layoff the likes of which Schwab had never before seen Similar threats were made by Stoddard and Foreman King to Alfono before the Board election, and in addition, Stoddard had threatened to effect other drastic changes if the Umon won the election Foreman King also threatened and offered to bet Guadino that he would be without ajob "if the Union gets in " After the election, Stoddard similarly threatened that, in view of its results, there would be a lot of changes, and that a layoff and discontinuance of some of the Respon- dent's routes might occur All of the foregoing clearly constituted threats of reprisals to employees for engaging in activities guaranteed by Section 7 of the Act and violated Section 8(a)(1) (4) At the Board election, on August 11, a majority of the Respondent's employees in an admittedly appropriate unit designated the Union as their collective-bargaining repre- sentative On the day following the election, the Respon- dent, without notice to or bargaining with the Union, unilaterally altered the terms and conditions of employ- ment of the employees represented by the Union by announcing the discontinuance of its previously existing paid sick leave policy Thereby, the Respondent not only further violated Section 8(a)(1) of the Act, but it also failed and refused to bargain with the Union within the meamng of Section 8(a)(5) of the Act Guadmo ever discuss[ed ] the Teamster s Union with [him] As previously noted I regard King s testimony as unreliable and I do not credit this denial of Guadino s testimony if it can be regarded as such is Stoddard did not specifically deny Guadino s testimony regarding this incident but he generally denied threatening employees with discharge for engaging in union activities For reasons previously explicated I do not credit Stoddard s denial HAST, INC 659 E The Employment and Discharge of Earl Guadtno The Respondent hired Guadtno to work as one of its drivers on August 31, 1970 His starting rate of pay was $3 an hour During his employment by the Respondent, Guadino received two wage increases, the first one, an automatic raise after 3 months of employment, and the second, a merit increase about 2 months later which brought his pay rate to $3 25 an hour During his employment by Respondent, Guadtno was told both by Foreman King and President Stoddard that he "was doing a good job," and Stoddard admitted that "from the time he was hired, Mr Guadmo performed quite satisfactorily " As previously noted, in May 1971, Guadmo initiated the movement to establish the Union as the collective-bargain- ing representative of the Respondent's drivers, visited the union hall, received union authorization cards for the employees to sign, and solicited all 10 of the signatures to the cards that were obtained Thereafter, as found above, the Union filed a petition for certification as the collective- bargaining representative of the Respondent's drivers, and the Company countered by threatening employees with various reprisals, including layoffs, discharges, and the closing of its doors Despite the Respondent's conduct to discourage support of the Union at the Board election, a majority of the employees nevertheless voted for the Union, and the Company in reprisal responded by discontinuing its previous policy of allowing employees 5 days of paid sick leave per annum Two weeks later, on August 26, the Respondent fired Earl Guadtno, the principal proponent of the Union The circumstances surrounding Guadino's termination were as follows The Respondent allows its employees a paid vacation of 1 week after I year of service In actual practice, however, employees have been permitted to take their vacations before they completed their first year of service 11 As noted above, Guadino started to work for the Respondent on August 31, 1970 In July 1971, Guadtno asked Foreman King when he could take his vacation, and he told King that his year of service would be completed in August King advised Guadmo that he could take a vacation, but not until August because he was "booked up for the month of July " King also said that he would check with Stoddard Thereafter, on several occasions Guadino asked King if he had spoken to Stoddard about his vacation, and King answered that he had not Finally, in 11 Patricia Schwab testified without contradiction that she was hired in April 1968 and was permitted to take her first vacation in February 1969 Dwight Nettleton who started to work for the Respondent as a driver on April 26 1970 was given a paid leave of absence for I week in February 1971 12 The findings above are based on Guadmo s credited testimony 13 Foreman King and Robert Stoddard the brother of President Stoddard testified that they were present during the conversation on August 26 between Guadino and Stoddard which ended with Guadino s dismissal Both gave testimony regarding what Guadtno allegedly said immediately before he was fired However according to Guadino and Alfono whom I credit only they and President Stoddard were present during the conversation preceding Guadmo s termination For the reasons which follow I find that King and Robert Stoddard were not present and that their testimony regarding what 'hey assertedly heard is pure fiction King s version of what Guadino allegedly said to Stoddard on this occasion in no respect conformed with either Stoddard s testimony or that of any other witness and as found hereinafter it described an incident that took place between Guadtno and Stoddard 3 days before Guadtno s discharge August, Guadino asked Stoddard, "Hank, how about my vacation" Stoddard asked, "How long have you been here'" Guadtno answered, "I will be here a year [on] August 31 " Stoddard said, "Well you can't take a vacation 'till you have been here a year " Then, although Guadtno knew that other employees had been permitted to take their i acations before their first year ended, he replied, "Alright How about if I take it [on] August 30 which is on a Monday " Stoddard said, "okay " 12 On Thursday, August 26, the payday preceding Guadi- no's scheduled vacation, Guadino "went over to the pay rack" and discovered that his check did not include pay for his forthcoming vacation There is considerable conflict in the record as to what Guadtno and Stoddard said immediately thereafter before Guadino's peremptory discharge Based on a composite of the testimony, mainly that of Guadino and Alfono, and to a minor extent that of President Stoddard, I find that the following conversation ensued 13 Guadino said to Stoddard, "Hey, where the hell is my vacation pay9" 14 Guadino also said, "Hank, there is only 1 week's check in here Don't I get my vacation pay9" Stoddard in reply asked, "How long have you been here9" Guadino said, "I have been here a year We talked about this already " Stoddard responded, "Well, you can't take a vacation until you have been here a year If you want to take a vacation you will have to take it September the 1st which is on a Wednesday " Stoddard argued, "I already made plans " Stoddard answered, "I don't care You can't take it until you have been here a year " Guadino said, "Hank, why are you harrassing me like this? You know you said that I could take a vacation" At this point, Stoddard turned to Alfono and said to him, "Will you please leave the office now9 I want to talk to him [Guadtno ] alone" Guadino said to Stoddard, "I would rather not have Lenny [Alfono ] leave I would rather have him stay here, Hank, because you have been calling me a union organizer You said you were going to get rid of me, and all you have been doing is harassing me " Stoddard answered, "That's right You have to fight fire with fire " Guadino said to Alfono, "Lenny, did you hear that," and Alfono nodded Stoddard then said to Guadtno, "You're fired " Guadino asked, "What for9" Stoddard replied, "Insubordination "15 That afternoon, according to Alfono's credited testimo- As to Robert Stoddard I am persuaded that he was not present when Guadino was fired on August 26 because his affidavit to the Board (G C Exh 7) contained no reference to this most important event notwithstand ing that he admittedly was asked by the Board agent what he knew about the matter and whether he had anything else 14 The quotes above are from Stoddard s testimony which I credit to this extent for the following reason only Guadmo admitted that profanity undoubtedly was used during his conversation with Stoddard However Guadino could not recall the exact swear words that were used and his version of the conversation contained no profanity I am persuaded therefore that this is the manner in which profanity entered the conversa- tion and I credit Stoddard in this regard notwithstanding that I regard his testimony as generally unreliable 15 Except as previously noted the findings above are based on Guadino s testimony which Alfono corroborated The Respondents brief suggests that Guadtno s and Alfono s testimony should not be credited because of self-contradictions as to who-Guadino or Stoddard-said that Guadino was a union organizer In the light of Guadmo s testimony that when he accused Stoddard of calling him a union organizer Stoddard said (Continued) 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny, while Foreman King and he were riding together on the New Haven route, Alfono asked King, "Is there any chance that Earl [Guadino] will ever get hired again9" King replied that Stoddard would "close the doors" before he hired Guadino back again Alfono asked, "Why9" "[Is it] because he [Stoddard] thinks he [Guadino] is a union organizer9 He can't really prove who was " King replied, "Well, he [Stoddard] put two and two together "is F Concluding Findings in Respect to Guadino's Discharge The complaint in this case alleges that Guadino's termination was motivated by his union membership and activities The Respondent's answer denies that Guadino's discharge was so motivated, and in its brief, the Respon- dent contends that it "had no knowledge of any union activity on the part of Earl Guadino " At the opening of the hearing in this case, the Respondent asserted that Guadino was fired for "insubordination" only During the course of the hearing however, the Respondent asserted that Guadino's discharge also was motivated by (1) the cancellation of his driving license in January 1971 for driving under the influence of alcohol, (2) his neglectful operation of one of the Respondent's cars while it was overheated about a month and a half before his termina- tion as a result of which the engine allegedly "was ruined", and by (3) his display of lack of proper care for the merchandise he transported about a week before his discharge by tossing packages to another of Respondent's drivers while transferring parcels to him I find, contrary to the Respondent's assertions, that these additional grounds for which Guadino allegedly was discharged are transpar- ent afterthoughts on the part of the Respondent and that his termination was not motivated by any of them I further find that the Respondent had knowledge of Guadino's support of the Union, and that the so-called "insubordination," the reason given to Guadino for his termination, is a pretext which the Respondent first provoked and then utilized to rid itself of the principal proponent of the Union in its employ 1 The revocation of Guadino's driving license In January 1971, during his off duty hours, Guadino had that s right I do not regard their testimony on direct and cross as inconsistent Stoddard s version of this conversation was as follows Guadino said Hey where the hell is my vacation pay'i Stoddard answered Mr Guadino you are not on vacation and you are not eligible for a vacation until next week Guadino said I am going on Monday Stoddard replied You haven t even arranged to go on Monday We have nobody to replace you You are not even eligible until Wednesday but I will bend this much you can go on Wednesday somehow or other we will make out Guadino said Wednesday was not acceptable I am going on Monday Stoddard asked the other employees to leave the office and Guadino said Don t leave I want you to hear what this bird has to say to me Stoddard then said to Guadmo that they had a continuing conflict about sick time that he had agreed to pay him [Guadino ] for sick time but that the vacation had not been arranged for We had nobody to replace him Guadino said I have taken enough shit from you and Stoddard responded Mr Guadino you are fired for insubordination I credit Stoddard s version of this incident and conversation only to the extent that it accords with that of Guadino and Alfono My reasons for so concluding-in addition to my lack of regard generally for the reliability of Stoddard s testimony-are as "a couple of beers" while playing cards with friends Later that night, Guadino was arrested for driving under the influence of alcohol, and his license to drive was taken from him "right on the spot " The following morning, Guadino notified President Stoddard that he would be unable to work because of the revocation of his driving license, and he explained to Stoddard what had occurred Stoddard consulted with his insurance carrier, told the latter "that the man [Guadino] had performed satisfactori- ly for us, and that if I could do something for him that I wanted to do it " 17 Subsequently, Stoddard signed and filed a certificate of financial responsibility for Guadino, and a limited license was issued which authorized Guadino to drive only the Respondent's vehicles Stoddard admitted that he accepted financial responsibility for Guadino because he "regarded him as a favorable employee " Guadino thereafter was not involved in any accident or traffic infraction prior to his discharge The prior revoca- tion of Guadino's license was not mentioned when Stoddard fired him on August 26 Moreover, when Guadino's driving license was revoked, he was not fired In the light of the foregoing undisputed facts, it is quite obvious that Guadino's termination was not based on the revocation of his driving license 7 months earlier I regard the assertion of this ground for Guadino's discharge as a transparently pretextual afterthought 2 The allegedly burned out motor The Respondent's drivers admittedly are required to check the oil and water of every car that they drive On about July 9 or 10, Guadino was assigned to drive a 1969 Plymouth Fury car usually used by the Respondent's president and its foremen According to Guadino's uncontroverted and credited testimony, before he left on this trip, he asked Foreman King if the car was "okay," and King answered, "Yes It is gassed and everything Just take off " Guadino drove the car to Bridgeport, parked it there all day, and drove it back at the end of the day On his return to the New Haven office, Guadino reported to King that the car was "pinging," and King replied, "I know It has always had a loud ping "18 King and Foreman Alfredo Bruzzesi then went out to look at the car, and when Guadino came out of the office to go home, they were raising the hood Subsequently, on July 12, Stoddard follows According to Stoddard Guadino had not previously arranged with him for a vacation when this incident occurred It stretches credulity beyond belief that Guadino would have demanded vacation pay and insisted on starting his vacation on Monday August 30 (as he undisputedly did) unless he had received prior approval therefor I am persuaded that he had and that Stoddard s contrary testimony is pure fabrication Moreover, I do not believe that Guadino made the profane statement which assertedly motivated his dismissal-not that it was beyond his or Stoddard s profanity limits-but rather because the statement implied that Guadino was quitting hisjob and he clearly was not doing so is King s only testimony regarding this or any other conversation with Alfono was merely a denial that he had any discussion with Leonard Alfono at any time about the union Assuming this to be a denial of Alfono s specific testimony above I do not credit it because I regard King s testimony as generally unreliable and in some respects as fabricated (see fn 13 supra) i7 The quotes are from Stoddard s testimony which is credited in this regard is King a witness for Respondent gave no testimony to controvert that of Guadino s credited above HAST, INC 661 told Guadino that he had overheated and ruined the engine of Stoddard's car, and that he had "stalked off" without reporting its condition to anyone 19 Then, despite Guadino's protestations of nonculpabihty, Stoddard issued a warning notice to Guadino that "any repeat of the overheating will result in your dismissal "20 A similar warning was issued to all of the Respondent's drivers and posted on the Company's bulletin board that same day 21 Guadino thereafter had no further difficulty with any of the Respondent's cars prior to his termination on August 26, and when he was fired, the overheating incident was not mentioned either as a ground for his dismissal, or in any other context During the course of the hearing in this case, counsel for the Respondent contended that Guadino's discharge was in part based on this incident I regard the contention that Guadino's termination was motivated in part by this occurrence as patently without meet, and I am persuaded that the testimony regarding this incident was adduced solely in an effort to cast Guadino in an unsympathetic light I base these conclusions on the following There was no recurrence of this incident after the Respondent issued its warning notice to Guadino Six weeks elapsed after this incident before Guadino was fired on August 26 At the time he was fired, Stoddard made no reference to this incident when he admittedly told Guadino only that he was fired for "insubordination " There clearly was no "insubordination" by Guadmo in connection with the incident for which he received the warning notice, and the notice contained no reference to any insubordination It is, thus, quite apparent that Guadmo's discharge on August 26 was in no way motivated even in part by the engine which allegedly had been "ruined " I therefore regard the assertion of this ground for Guadino's discharge as another pretext on the part of the Respondent 22 3 The throwing of a package According to the testimony of Robert Stoddard, a brother of Respondent's president, on about August 14 or 15, he saw Guadino throw a package about 15 or 20 feet to another driver who failed to catch it and it fell to the ground According to Robert Stoddard, the incident occurred at a transfer point where the Respondent's drivers meet by prearrangement to turn over packages that they have picked up to the drivers on whose routes their delivery is required Robert Stoddard admittedly did not know either what the thrown package contained or whether or not it was fragile He nevertheless reported the incident to his brother that same evening The following morning, President Stoddard accused Guadino of "throw- 19 Both Bruzzesi and Stoddard testified that the engine on the car was ruined but no evidence documentary or otherwise was adduced regarding what repairs if any were made to the car Moreover Guadino s testimony that the car was back on the road and that they were all driving it was not controverted I therefore regard Bruzzesi s and Stoddard s testimony that the car was ruined as exaggerat ons 20 See Resp Exh 1 21 See G C Exh 5 22 I note in this regard that the Respondent s brief apparently no longer contends that Guadino s discharge was motivated in part by this incident and that it refers thereto only as evidence that Guadino was not the type of desirable employee whose other qualities would mitigate against immedi ate discharge ing a fragile package around," and warned him not to do it "anymore "23 Guadino at first denied that he threw "anything" around, but when Stoddard asked his brother Robert for confirmation, Guadino admitted he had thrown a package, but he maintained that it was a payroll package, and not a fragile one Guadino showed Robert Stoddard a payroll package and asked him "Isn't this what I threw?," and according to Guadino's credited testimony, Robert agreed 24 According to President Stoddard, he then asked Guadmo, "Well now, are you admitting that you are throwing packages around?," and Guadino replied, "Oh no you don't You are trying to get rid of me, but I won't let you do it When I get the union in here, and get my union book I am quitting But not until " As previously noted, during the course of the hearing, the Respondent's counsel asserted that Guadino's discharge also was motivated by his conduct of "throwing the package " The Respondent apparently now has abandoned this contention, for its brief states as point I, "Earl Guadino was discharged solely for gross insubordination " However, independently of the Respondent's shifting positions, the record clearly discloses that Guadino's termination could not reasonably have been based on the package throwing incident The packages which the Respondent's drivers transfer and deliver undisputedly "are very easily distinguishable" as to whether their contents are fragile or not Although tossing admittedly is not the "normal way" of transferring packages, there is no evidence that the Respondent had a rule which prohibited its drivers from doing so with nonfragile packages In this regard, former driver Patricia Schwab testified without contradiction that she threw "quite a few" packages to other employees and never was warned to desist Accord- ing to Schwab's uncontroverted and credited testimony, she saw Foreman King, Bruzzesi, "and even Mr Stod- dard" "do the same [thing] " Guadino also testified without contradiction that, on one occasion, King tossed a package to him 25 Guadino had never before been warned "about throwing packages " There is no evidence that Guadino tossed any further packages after Stoddard' s false accusation in mid-August that he had thrown one that was fragile Finally, there was no reference to the package throwing incident on August 26 when Stoddard told Guadino he was fired All of the above convinces me that the Respondent's contention at the hearing that it fired Guadino on August 26 because about 10 days earlier he had thrown a package to another employee, is a patently incredible pretext 23 Guadino testified that this warning was administered to him about the middle of August 1971 His testimony in this respect accords with that of Robert Stoddard who testified that the incident occurred around August 14 or 15 and was reported to President Stoddard the same day Accordingly I regard President Stoddard s testimony that he administered this warning to Guadino on August 25 as erroneous and do not credit it 24 According to Stoddard his brother replied that it was a dental package However as previously noted Robert Stoddard admittedly had no knowledge either of what the package contained or whether it was fragile or not I therefore do not credit President Stoddard s version of his brother s reply 25 Neither King Bruzzesi nor Stoddard denied Schwab s or Guadino s testimony in this regard 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 Final analysis and conclusions Until the Union filed its petition with the Board for certification as the exclusive representative of the Respon- dent's drivers, Guadino, the principal proponent of the Union among the drivers, admittedly was regarded as a satisfactory employee On July 6, the Board notified the Respondent that the Union had filed its petition, and coincident with the receipt of that knowledge, Guadino's troubles with the Company began Thus, as found above, on July 12, Guadino was given a written reprimand allegedly because he assertedly "ruined" one of the Respondent's cars by running it while the engine was overheated, and because he assertedly failed to report the condition of the car when he turned it in As found above, Guadino's only knowledge that anything was wrong with the car was that it had a loud ping, and he uncontroverted- ly had reported that fact to Foreman King Thus, the reprimand for failure to report the car's condition was clearly unjustified Moreover, the Respondent adduced no evidence of the nature and/or extent of the repairs that assertedly were made to the car, and as found above, the car "was back on the road" and "they were all driving it " It is thus obvious that Stoddard's accusation that Guadino "ruined" the car was, at the very least, an exaggeration All of the foregoing, including the timing of the written warning to Guadino immediately after receipt of notice of the Union's petition, and the Respondent's simultaneous warning to all its drivers that a failure to "watch the gauges," "check water and oil," or to "report any unusual condition" "will result in dismissal" (G C Exh 5), suggests that the Respondent's conduct may have been motivated by antiunion considerations That inference is strengthened by the Respondent's subsequent conduct Thus, as found above, the Respon- dent thereafter engaged in multiple unfair labor practices that were designed to discourage its employees from supporting the Union at the Board election And, when the employees designated the Union as their representative despite the Respondent's conduct, Stoddard, in reprisal, announced on the day following the election that he would no longer pay them for 5 days of sick leave per annum as he had theretofore It is thus quite evident that antiumon considerations were a motivating factor in the Respon- dent's conduct towards its employees Guadino's troubles with the Respondent increased with the Union's victory at the Board election As found above, so far as the record discloses, the Respondent had no rule which prohibited the tossing of a package by one employee to another, and the practice occasionally was engaged in, 26 Prior to the advent of the Union Stoddard admittedly regarded and treated his employees as friends However as Alfono testified without contradiction after the Union petitioned for certification Stoddard s attitude towards the employees chilled and he no longer was friendly 27 The quotes are from Stoddard s testimony Guadino s version which I regard as more reliable and credit is that Stoddard said Well you organized the Union I got to get you anyway I can In either case it is evident that even if Stoddard had no prior knowledge of Guadino s union advocacy he acquired it then It is thus obvious that the Respondents contention that it had no knowledge of Guadino s union activity is without any merit 28 A few days before the election on August I I Stoddard had invited all the drivers in the unit to join him for some drinks and dinner after they voted not only by employees, but also by Stoddard and his two foremen However, a few days after the Union election, Guadino was falsely accused of tossing a "fragile" package, and then warned for the first time not to do it anymore The false accusation, and the change in Stod- dard's attitude towards him26 provoked Guadino to accuse Stoddard of "trying to get nd of me [Guadino ]," and to say, "when I get the Union in here and get my union book I am quitting But not until "27 Guadino's next run-in with Stoddard was not long in coming Guadino was absent on August 12 when Stoddard announced the discontinuance of the Respondent's paid sick leave policy, and he first learned about it on August 19, a payday, when he noted that he had not been paid for 2 days of sick leave he had taken According to Guadino's uncontroverted and credited testimony, he complained to Stoddard that his paycheck was "two days short " Stoddard replied that the check was not short, that he had "discontinued sick leave," because it was not required either by state or Federal law and was "entirely up to the employer " Guadino then threatened that he would go "to the union hall," and find out "whether you are able to do this to me or not" Stoddard responded, "Do what you want I don't care " A few days later, however, on August 23, Stoddard offered to pay Guadino for both of his 2 days of sick leave, provided that Guadino furnished him with a doctor's certificate for the August 12 absence which Stoddard "felt" resulted from a hangover "from the previous evening's party "28 Insofar as the record discloses, the Respondent had not previously required its employees to furnish a doctor's certificate to be entitled to 5 days of sick pay per annum 29 At the time of this incident, Stoddard still had at least 2 days of unused sick leave for which he was entitled to be paid Quite obviously provoked, first by Stoddard's unlawful unilateral cancellation of the Respondent's sick pay policy, and probably also by Stoddard's requirement of a doctor's certificate as a condition precedent to paying for the sick leave to which he was entitled, Guadino told Stoddard that he "was going to pay him for both days," and "that I could stick the thing [sick pay] up my ass " Stoddard admittedly did not fire Guadino for making this statement to him 30 Stoddard's final harrassment and provocation of Guadi- no occurred 3 days later when Stoddard reneged on his prior agreement to permit Guadino to start his vacation on Monday, August 30, just 1 day before the completion of his first year of service As found above on uncontroverted evidence, although the Respondent required 1 year of 29 Stoddard s request for a doctors certificate for only 1 of Guadino s 2 days of sick leave and the nature of the prior policy-paying employees for unused sick leave or allowing them to take extra vacation days in lieu of extra pay-persuade me that the Respondent had not previously required a doctor s certificate 30 The findings above are based on Stoddard s testimony which was uncontroverted in this regard and is credited to this extent Foreman King testified that he was present when Guadino made this statement to Stoddard but according to King it occurred on August 26 when Stoddard fired Guadino However inasmuch as Stoddard admittedly did not fire Guadino when this statement was made, and no such statement was made by Guadino when Stoddard fired him on August 26 it is obvious that King s testimony that Guadino made the statement on August 26just before Stoddard fired him (see in 13 supra) is patently unworthy of credence HAST, INC 663 service for entitlement to a paid vacation of 5 days, it previously had allowed employees to take their paid vacations months before the completion of their first year of employment Guadino however, was refused like treatment although he first began to ask for a vacation in July, only a month before his first year of service would end Stoddard admitted that there is "very little" seasonal fluctuation in the Respondent's business, and that the number of stops the drivers have to make are the same, regardless of whether the customer has a few or a lot of packages to be transported There was, therefore, no seasonal rush season for refusing to allow Guadino to take a vacation before August 30, the date on which Stoddard finally agreed he could go Indeed, all Guadino's requests for a vacation were met with at least an initial response that he was not entitled to one before his year of service ended The Respondent offered no explanation for treating Guadino in this disparate fashion Guadino knew that the Respondent had permitted other employees to take a vacation before their first year of employment ended, and that the Respondent thus was treating him disparately He nevertheless made no issue of it, and he made arrange- ments to start his vacation on August 30 in accordance with Stoddard's agreement However, when Stoddard reneged and told Guadino that he could not leave on August 30 because he would then be 1 day short of completing his year of service, and because he could not spare Guadmo then but would manage somehow to do so on Wednesday, September 1, and when Stoddard in addition denied that there had been any prior agreement for Guadino to take his vacation on August 30, Guadino had ample reason to be provoked and angry, and to regard Stoddard's conduct towards him as harrassment Under the circumstances, it is small wonder that Guadino, in righteous outrage, heatedly accused Stoddard of calling him a union organizer, of trying to get rid of him, and of harrassing him, and that in like heat, Stoddard retorted, "That's right You have to fight fire with fire " As found above, when Guadino then asked Alfono, "Lenny, did you hear that?" Stoddard told Guadino that he was fired for "insubordination " I regard the contention that Guadino's conduct was insubordinate, and that he was discharged by Stoddard for "insubordination" as the Respondent's final pretext to mask its real motivation for Guadino's termination I base these conclusions on the following considerations (a) Profanity was commonly used by the Respondent's employees in their daily speech, and also by Stoddard 31 Stoddard admittedly never "fired any other employee for swearing " There was, therefore, nothing in Guadino's statement to Stoddard, "Hey, where the hell is my vacation pay?" which reasonably could be regarded either as a "belligerent assault on Mr Stoddard," 32 or even as offensive (b) The Respondent next contends that Guadino was insubordinate in that he "urged other employees" to be insubordinate However, as found above (see fn 13, supra), only Alfono was present on August 26 when Stoddard and Guadino had their last argument Furthermore, when Stoddard asked Alfono to "please leave the office," Guadino told Stoddard, "I would rather not have Lenny [Alfono] leave I would rather have him stay here, Hank "33 Stoddard apparently did not press the matter further, for Alfono did not leave, and he was not thereafter reprimanded or disciplined for his failure to do so I perceive in the foregoing no "urging" by Guadino that "other employees" be insubordinate to Stoddard (c) The third and final act of insubordination on August 26 which the Respondent contends motivated Guadino's dismissal was Guadino's alleged statement to Stoddard, "I have taken enough shit from you " As found above (see fn 15, supra), I do not credit Stoddard's testimony that Guadino said this to him However, even assuming that I believed Stoddard in this respect, which I do not, I still do not believe that this motivated Guadino's discharge Profanity was the norm at the Respondent's place of business and Stoddard, who also used profanity,34 obvious- ly could not have been shocked by Guadino's use of this language Only 3 days earlier, according to Stoddard's own testimony, Guadmo had told him to take his sick pay and shove it up his ass, and Stoddard had done nothing about it To explain away the obvious inconsistency between his failure to fire Guadino when he made the profane remark about what Stoddard could do with his sick pay, and his discharge of Guadino on August 26 for allegedly making a similar profane statement, Stoddard testified on cross- examination as follows A There was no one else present [on August 23 ] It was between Mr Guadino and me The morning that Mr Guadino was fired there were witnesses there and Mr Guadino made me look like a first-class jerk by taking command of the office and telling me that he took enough shit from me in front of witnesses At first blush, this explanation appears very persuasive, but it does not withstand close scrutiny On direct examina- tion, when Stoddard had been asked by his own counsel "who was present" on August 23 when Guadino made the sick pay statement to him, Stoddard had answered, "I am not sure who was present, sir " This, of course, is contrary to Stoddard's later positive testimony that "no one else was present " Moreover, according to Foreman King, a witness for the Respondent, he was present when Guadino made the statement about the sick pay to Stoddard It is thus quite apparent that Stoddard's explanation for his inconsis- tent reactions to Guadino's conduct on August 23 and 26 is unworthy of credence This further persuades me that the assertion that Stoddard regarded Guadino's alleged state- ment on August 26 as insubordinate also is unworthy of credence or belief I conclude from all the foregoing that the contention that Guadino was discharged for insubordi- nation is another and final pretext of the Respondent to conceal its true motivation for his termination 31 Alfono and Patricia Schwab credibly testified without contradiction that profanity is frequently used in conversations at the Respondent s New Haven terminal in conversations between employees and with Stoddard According to the uncontroverted and credited testimony of Vincent Pisano the Union s business agent at a meeting on August 30 at the Union s office which had been called both to discuss the Respondents cancellation of its paid sick leave policy and Guadino s discharge Stoddard opened the meeting with the statement I have been fucked 32 Guadino s statement is thus characterized in Respondent s brief 33 This was Guadino s credited version which as previously noted I regard as more reliable than Stoddard s 34 Seefn 31 supra 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The applicable principle in cases like this where the reasons asserted for discharge are regarded as false was aptly stated by the court of appeals in Shattuck Denn Mining Corporation v N L R B, as follows 35 Nor is the trier of the fact-here the trial examiner-re- quired to be more naif than is a judge If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference [Emphasis supplied ] The real reason for Guadino's discharge is fairly apparent from the record Until Guadino initiated and promoted the union campaign at the Respondent's place of business, he was regarded by Stoddard as a satisfactory employee That regard for him changed abruptly when Stoddard learned that the Union had filed a petition for certification with the Board Coincident with that knowledge, and as found above, of like knowledge of Guadino's support of the Union, the Respondent began to find fault with Guadino's performance and conduct First, it issued a written warning to Guadino for ruining a car and for failing to report the car's condition, which as found above was in part an exaggeration, and in part, untrue Then, although the Respondent had no rule which prohibited employees from tossing packages to one another, Stoddard falsely accused Guadino of throwing a fragile one, and orally warned him not to do it again This admittedly provoked Guadino to angrily comment that Stoddard was trying to get rid of him on account of the Union Then, after the Union won the Board conducted election, Stoddard first refused to pay Guadino for 2 days of sick pay to which he was entitled, and then later offered to pay him provided that he presented a doctor's certificate for one of the 2 days This provoked Guadino to tell Stoddard what he could do with his sick pay The final provocation of Guadino came on August 26 when Stoddard reneged on his prior agreement to let Guadino start his vacation on August 30, and falsely denied that any such arrangement had been made I am persuaded by all of the foregoing, and by the vacillating and shifting reasons asserted by the Respondent for Guadino's discharge,36 that the Respondent's conduct towards Guadino was deliberately provocative, and was motivated by its opposition to the Union and his known union activities I further find that his final ternunation was likewise so motivated, as Foreman King acknowledged to Alfono Accordingly, I conclude that the Respondent thereby discriminated against Guadmo to discourage membership in the Union, and engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent terminated the employment of Earl Guadino, and thereafter failed and refused to reinstate him because he engaged in union and concerted activities guaranteed by the Act, I will recom- mend that the Respondent be ordered to offer him immediate reinstatement to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by the payment to him of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board 37 I will also recommend that the Respondent 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 to analyze and determine the amounts of backpay due under the terms of this recommended remedy Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Respondent, Hast, Inc, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 Teamsters Local Union No 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminating against Earl Guadino by terminat- ing his employment and by failing and refusing to reinstate him to his former position because of his support of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4 The following employees of the Respondent consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All full-time and regular part-time drivers employed by the Respondent at its New Haven premises, but excluding all office clerical employees, professional employees, summer seasonal employees, guards, gener- 35 362 F 2d 466 470 (C A 9) 37 F W Woolworth Company 90 NLRB 289 backpay shall include the 36 A J Krajewski Mfg Co v N L R B 413 F 2d 673 675-676 (C A I) payment of interest at the rate of 6 percent per annum to be computed in N L R B v Schill Steel Products Inc 340 F 2d 568 572 (C A 5) the manner set forth in Isis Plumbing & Heating Co 138 NLRB 716 HAST, INC 665 al foreman, foreman and all other supervisors as defined in the Act 5 Since August 11, 1971, the above-named Union has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment 6 By unilaterally, on August 12, 1971, without notice or consultation with the above-named Union, changing the terms and conditions of employment of the employees in the above-described unit by discontinuing its existing paid sick leave policy, the Respondent has failed and refused to bargain collectively with the above-named Union, and has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act 7 By the foregoing conduct, by creating the impression that it was subjecting the union activities of its employees to surveillance, and by threatening employees with discharge, layoff, and other reprisals including the closing of its business, to discourage support of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended 38 ORDER Respondent, Hast, Inc , its officers, agents, successors, and assigns, shall I Cease and desist from (a) Discouraging membership in and activities on behalf of Teamsters Local Union No 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or of any other labor organiza- tion, by discriminating in regard to hire or tenure of employment or any terms or conditions of employment (b) Engaging in conduct or making statements which convey to employees the impression that their union activities are subject to surveillance (c) Threatening employees with discharge, layoff, the closure of business, or other reprisals to discourage support of the above-named Union, or any other labor organiza- tion (d) Refusing to bargain collectively in good faith concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, with the above- named Union, as the exclusive representative of the employees in the following appropriate unit, by unilaterally and without notice, or bargaining, changing their terms and conditions of employment The appropriate unit is All full-time and regular part-time drivers employed by 38 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 automatically become the findings conclusions and order of the Board and all objections thereto shall be deemed waived for all purposes the Respondent at its New Haven premises, but excluding all office clerical employees, professional employees, summer seasonal employees, guards, gener- al foreman, foreman and all other supervisors as defined in the Act (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Teamsters Local Union No 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer Earl Guadino immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner provided in the section of this Decision entitled "The Remedy " (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this Order (d) Post at its office and terminal in New Haven, Connecticut, copies of the notice marked "Appendix "39 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material 39 In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 1, in writing , I further order that the complaint herein be dismissed within 20 days from the date of the receipt of this Decision, insofar as it alleges violations of the Act other than those what steps have been taken to comply herewith 40 found above 40 In the event that this recommended Order is adopted by the Board the date of this Order what steps the Respondent has taken to comply after exceptions have been filed this provision shall be modified to read herewith Notify said Regional Director for Region I in writing within 20 days from