Superior Sanitation, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superior Sanitation, Inc. and Local No. 146, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Ha- rold Thompson. Cases 27-CA-4815 and 27-CA- 5056-2 January 25, 1978 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On September 7, 1977, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions. 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge, to modify his remedy,1 and to adopt his recommended Order. 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 and hereby orders that the Respondent, Superior Sanita- tion, Inc., Colorado Springs, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I In the remedy section of his Decision, the Administrative Law Judge erroneously referred to a fixed 7-percent interest rate and thereby failed to apply properly the Board's "adjusted prime interest rate" formula, which may vary in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing 234 NLRB No. 79 To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything which interferes with these rights. WE WILL NOT discharge, lay off, or refuse to reemploy workmen, or discriminate in any other manner with regard to their hire or tenure of employment, or their terms and conditions of employment, because they may have designated Local No. 146, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization, as their collective-bargaining representative, or because of their participation in concerted activi- ty, for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT threaten our employees with possible arrest, or seek to have them arrested, because of their participation in union activities proper under the National Labor Relations Act, or because of their participation in concerted activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer James Mazzocco and Robert McKellip immediate and full reinstatement to their former positions or substantially equivalent positions should their former positions no longer exist, if they have not already been rehired or fully reinstated in such positions. Further, we will restore their seniority and other rights and privi- leges which they enjoyed when discharged. WE WILL notify Bruce Geller that, upon appli- cation, we will offer him immediate reinstatement to his former full-time position or, should his former full-time position no longer exist, a sub- stantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed. Should Bruce Geller, hereaf- ter, apply merely for casual part-time work, WE WILL consider him eligible, and will rehire him, without discrimination, for whatever available casual part-time work he may be qualified to perform. WE WILL make whole Bruce Geller, James Mazzocco, and Robert McKellip for any wage losses they may have suffered during the period between the dates on which they were discharged, or were previously denied reinstatement, and the date or dates of their rehire or full reinstatement. Bruce Geller will be made whole for pay losses to 454 SUPERIOR SANITATION, INC. a date 5 days after his receipt of notice with respect to his reinstatement rights. SUPERIOR SANITATION, INC. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon charges and amended charges filed on January 30, Febru- ary 17, and September 20, 1976, respectively, and duly served, the General Counsel of the National Labor Rela- tions Board caused a consolidated complaint and notice of hearing, dated October 27, 1976, to be issued and served on Superior Sanitation, Inc., designated as Respondent in this Decision. Therein, Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(aX)() and (3) of the National Labor Relations Act, as amended. Respondent's answer, duly filed, conced- ed certain factual allegations in General Counsel's consoli- dated complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held before me on February 15 and 16, 1977, in Colorado Springs, Colorado. The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Since the hearing's close, briefs have been received from General Counsel's represen- tatives and Respondent's counsel. These briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claims. Upon the consoli- dated complaint's relevant factual declarations (specifically those set forth in detail in the second paragraph thereof), which are conceded to be correct and upon which I rely, I find that Respondent herein was, throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE LABOR ORGANIZATION CONCERNED Local No. 146, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, des- ignated as Local No. 146 or Complainant Union in this Decision, is a labor organization within the meaning of Section 2(5) of the Act, which has admitted certain of Respondent's employees to membership. III. THE UNFAIR LABOR PRACTICES CHARGED A. Issues In his consolidated complaint, General Counsel presents several closely related, substantive questions. For present purposes, these questions may be summarized, generally, as follows: (1) whether Respondent's management dis- charged, or refused to reemploy, five designated workmen because of their prior participation in statutorily protected concerted activity, or their union membership, and (2) whether, during a subsequent economic strike, Respon- dent's president threatened a striking employee with severe bodily harm and discharge because of his union activities, or because of his participation in concerted activity for mutual aid and protection. With respect to these several matters, General Counsel seeks affirmative responses. Respondent counters, however, with contentions: (I) that two of General Counsel's five claimed discriminatees had been terminated for business reasons or good cause; (2) that one worker had rejected a reinstatement offer, proper- ly proffered pursuant to a strike settlement; (3) that two other workers had resigned, following their refusal to sign a pay deduction authorization which Respondent had re- quested them to sign, pursuant to a proper, nondiscrimina- tory business policy; and (4) that, with respect to the striker purportedly threatened, Respondent's president had mere- ly been trying to prevent "further property damage" sustained by a secondary employer, which the striker had presumptively generated while engaged in statutorily pro- scribed conduct. B. Facts 1. Background a. Respondent's business Respondent is engaged in the business of trash collection and disposal; the firm services both residential and commercial facilities. The firm's trash collection trucks, normally staffed by 2-man crews with the first man functioning as the truck's driver and the second function- ing as a trash loader, service some 20 specifically defined residential and commercial routes. Respondent maintains a principal office and place of business in Colorado Springs, Colorado; the firm's prem- ises compass a headquarters office, together with a facility for truck maintenance or repair and a truck storage yard. Respondent's management representatives, whose general course of conduct General Counsel challenges herein, include James Frank, the firm's president; Dave Frank, Respondent's vice president; and Joe Kondrup, the firm's general manager and dispatcher. b. The August 1975 strikes Early during August 1975, Respondent's workers, who were then without union representation and who had 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received no general wage increase for some 2-1/2 or 3 years, began discussions regarding a possible work stop- page. These discussions were led primarily by drivers Daniel Friedlund and Richard Quevas. Throughout the workweek of Monday, August 4, these workers solicited the views and support of their fellows with regard to calling a Monday, August 11, strike. Respondent's workers, so the record shows, were consid- ering job action primarily to win a wage increase. Further, however, they planned to demand more hours; work assignments whereby truckloaders would be permitted to ride with their drivers to the Colorado Springs dump following the completion of their assigned truck's run, rather than suffer reassignments whereby they might be required to load other trucks; and the discontinuance of Respondent's current payroll deduction practice, whereby S3 per week was routinely deducted from their pay for a so- called Superior Sanitation Employees Fund; plus some 9 or 10 further demands concerned with "working conditions" generally. The record suggests the substance of three demands only; Respondent's workers were demanding time and one-half pay for overtime work, comparable pay for holiday duty, and better health insurance protection. On the morning of Monday, August II, before their regular 8 o'clock starting time, Respondent's workers, save for Jim Coombs, the firm's chief mechanic, and several office workers, struck. Specifically, they did not report for work; rather, they foregathered outside Respondent's premises, where they displayed "on strike" signs and organized a picket line. Respondent's management repre- sentatives promptly sought contact with the picketing strikers. They were provided with a handwritten list of some 12 or 14 demands and, concurrently, they were notified that employees Friedlund and Quevas had been designated as the strikers' spokesmen. (These picket line contacts took place, so General Counsel contends, between 8:30 and 9 o'clock. Respondent's vice president, Dave Frank, recalls them as taking place at 10 o'clock. For present purposes, however, their precise timing need not be determined.) Thereafter, several successive "bargaining" sessions were held in the dispatcher's office in Respon- dent's facility. Friedlund and Quevas spoke for their fellow strikers and Respondent's three management representa- tives, likewise participated. The firm's first settlement proposals were considered unsatisfactory; they were reject- ed. Between 11 and 11:30, however, the negotiators finally reached a consensual understanding that Respondent's drivers and mechanics would be given a wage increase from $3 to $3.60 per hour, and that loaders would receive pay raises from $2.70 to $3 hourly. Deductions for Respondent's previously noted, so-called Superior Sanita- tion Employees Fund - which I propose to discuss further in this Decision - would, consensually, be continued. There was agreement, however, that the fund would be discussed further, subsequently. The strikers' other de- mands were dropped. Respondent's three spokesmen agreed that there would be no reprisals. The firm's crew complement thereupon reported for work. Respondent's trucks were dispatched. Directly following his August 11 resumption of work, Dave Rose, Respondent's mechanic who had prior thereto been working 50 to 55 or 60 hours per 6-day week, thereby qualifying for regular plus overtime compensation which normally totaled some $150 to $175 weekly, learned from Chief Mechanic Coombs that "Mr. Frank" had decided his working hours would be reduced to 5 days and 40 hours weekly, since Respondent did not have enough work for two full-time mechanics. Rose discussed his prospective hours reduction with employee Friedlund and the latter suggested that Quevas should be notified. Early the following morning, therefore, Rose did discuss his situation with Quevas. The mechanic, so his testimony which I credit in this connection shows, declared his view that Respon- dent's management was "going to shaft" him, and that they would thereafter "start shafting" everybody else. General Counsel's presentation herein suggests a contention that Respondent's management had deliberately restricted Rose's working time pursuant to a purpose of reprisal for his participation in the August 11 work stoppage. Respon- dent's witnesses, however, have testified that a substantial amount of truck modification and maintenance work, which had originally prompted Rose's hire, had been completed shortly before August 11, and that Rose's shop hours were reduced because Respondent's routine mainte- nance work, for the foreseeable future, would not require full-time service by two mechanics. While a witness, Rose proffered no countervailing testimony. I have not, however, found it necessary to determine whether he was being deprived of work for a business reason, or because of some company desire for reprisal. I note merely his belief that he was being discriminatorily treated. Quevas promised he would "bring up" questions with regard to Rose's prospec- tive hours reduction during a crew meeting which Respon- dent's management had scheduled shortly thereafter. Shortly before Respondent's regular 8 o'clock starting time, the firm's vice president and general manager, Kondrup, met with Respondent's workers in their shop. James Frank may also have been present. With matters in their present posture, however, no determination regarding his presence should be considered, in my view, required. The record herein reflects substantial testimonial conflicts with respect to what happened during the management- worker confrontation which followed. Since the discussion which took place, which will be discussed further in this Decision, merely provides some relevant background, in the context of which Respondent's subsequent conduct, challenged herein, must be weighed, testimonial conflicts with respect thereto would not normally require detailed discussion. General Counsel's representatives, however, currently contend that Respondent's management repre- sentatives, during this August 12 confrontation with their subordinates, manifested a basic "animus" directed toward workers who were disposed to pursue rights statutorily guaranteed. Thus, credibility determinations, particularly with regard to General Counsel's presentation in this connection, would seem to be required. Several workers testified that Dave Frank carried a sheet of paper on which Respondent's previously promulgated rules and statements of policy, which had concededly been posted on the firm's bulletin board before the August 11 work stoppage previously noted, were detailed; that he read aloud and restated the purport of Respondent's rules; 456 SUPERIOR SANITATION, INC. that he commented about Respondent's previous leniency with regard to rule violations; and that he finally declared management would start enforcing its posted rules more strictly. Employee Geller specifically recalled Frank's declaration that tardiness would result in suspension; that shirts would have to be worn while the men were working; that trucks driven off designated routes would not be tolerated; that employee misuse of truck radios would not be permitted; and that neither messages nor employee lunches left behind would be delivered to workers while they were on their routes. Employee Rose recalled a management pronouncement that employee scavenging in their trash loads would not be permitted. Various workers recalled further statements, purportedly made by Respondent's management representatives, which did not concern posted work rules. Rose recalled, inter alia, a declaration that Respondent would no longer loan money, upon request, to "help out" workers in financial distress; and employee Mazzocco recalled a statement that "some people were going to have to be let off or cut because of their attitudes" while Dave Rose would be transferred to driver's work. Further, Mazzocco recalled a declaration that workers would be required to wear special shoes and gloves; that working hours for loaders would be reduced; and that they would be sent home "when they got [their] load done" rather than being designated to handle another truck. While a witness, Dave Frank denied reading or discuss- ing Respondent's work rules during any planned August 12 get-together; rather, Respondent's vice president and gen- eral manager, Kondrup, testified that the firm's previously posted rules had been simply "read" aloud shortly after management's August 11 settlement had been reached, before Respondent's employees resumed work. Frank testified that this was done because several employee demands which had finally been dropped during negotia- tions earlier that day had involved company rules, and because Respondent's management wished to remind the firm's workers that their firm's rules and policies would, therefore, be continued without change. With respect to Vice President Frank's purported August 12 recapitulation of Respondent's posted rules and policies, General Counsel's witnesses testified straightforwardly; and when cross-examined by Respondent's counsel, their proffered recollections were maintained with unshaken conviction. The firm's management spokesmen, however, proffered testimony which, in my view, fails to comport with logical probability. Since Respondent's rules had long been posted, no persuasive rationale for their complete verbal recapitulation following the conclusion of Respon- dent's protracted August I 11 negotiations can be found in the present record. Respondent's proffered reasons for their reiteration at that time do not ring true. The firm's trash collection responsibilities without doubt would have required a resumption of service quickly. Under the circumstances, Vice President Frank's testimony that he nevertheless considered a time-consuming verbal recapitu- lation and discussion of Respondent's rules and policies necessary suggests a lack of concern (with respect to any prompt resumption of route service) which, in my view, cannot reasonably be charged to Respondent's manage- ment. On this record, General Counsel's presentation, which reflects a managerial decision to discuss Respon- dent's posted rules and policies during the morning hours of August 12, before work began, merits credence. With respect to further developments during manage- ment's August 12 confrontation with Respondent's em- ployees, the present record reflects a substantial testimonial consensus. Several witnesses presented on General Coun- sel's behalf recalled that while Respondent's work rules were being discussed their fellow employee, Richard Quevas, queried the firm's management representatives with respect to why Dave Rose's hours had been reduced. Respondent's vice president declared, so General Counsel's witnesses recalled, that their firm no longer had sufficient full-time work for two mechanics, but that Rose could nevertheless drive a trash collection route should he wish to make up for his reduced pay and lost hours. Dave Frank, while a witness, declared that when replying he had proffered a specific suggestion; namely, that Rose could work Saturdays on Respondent's various routes. However, Rose, so his testimony shows, catagorically rejected the suggestion. Employee Quevas thereupon complained, ac- cording to General Counsel's witnesses, that Respondent's management was merely retaliating against a striker. He contended that such "blackball" retaliation was unfair, since the firm's workers had been reassured previously that there would be no reprisals. Several of General Counsel's witnesses recalled that these conversational exchanges had been heated; that Respondent's general manager had finally declared he and his fellow management representa- tives had heard enough; that he had, with manifest anger, pounded the palm of one hand with a fist while making this statement; and that he had further declared his view that Respondent's management should "draw a line" right there. Employee McKellip recalled his own declaration at that time that if Respondent's workers were "going to get screwed around" with their jobs, they might as well "hit the street" promptly. However, Respondent's general manager and vice president, Frank, recalled that Quevas had charged Respondent's management with "trying to mess around" with Rose's hours. They declared that Quevas had suggested their prior work stoppage's renewal. For present purposes, these divergent testimonial recollections, in my view, need not be reconciled. Most of Respondent's workers thereupon again left the firm's premises; and all but 7 or 9 of Respondent's 40-plus drivers and loaders, together with Dave Rose, Respondent's mechanic, resumed their prior strike. In a short time, so the record shows, renewed picketing began. Respondent's management, how- ever, was able to dispatch some trash collection trucks. c. Unfair labor practice charges filed With their spontaneous work stoppage resumed employ- ees Quevas and Friedlund proceeded to Complainant Union's hall, where for the first time they sought union representation. They were given a supply of designation cards which Respondent's workers subsequently signed. Shortly thereafter, specifically on Thursday, August 14, some 24 workers signed letters which declared their unconditional desire to resume work. These were presented to Respondent's management personally by Complainant 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's president, Robert Menapace, with drivers Fried- lund and Quevas present. During his visit, Menapace identified himself as Complainant Union's representative and submitted the letters to Respondent's vice president. The record, in this connection, reflects some testimonial discrepancies. Employee Geller testified that Menapace delivered the signed offers "probably" during the morning of August 14; and employee Friedlund, who had visited Respondent's premises with Complainant Union's presi- dent, recalled their delivery "during that [August 11] week [probably on Thursday, August 14 or Friday, August 15] or the following week." Dave Frank recalled Friday, August 15 or Saturday, August 16 as the date of Menapace's visit. General Counsel's witness, Friedlund, testified further that Respondent's vice president had thrown their collective offers to resume work "back on the counter" while roughly directing his visitors to leave his office and Respondent's property. Dave Frank recalled merely that Menapace had declared his desire to talk; that he (Frank) had rejected Menapace's suggestion; that his visitors had then departed; and that he had found the striker's letter offers later, lying on Respondent's counter. For present purposes, these divergent testimonial recitals need not be resolved herein. Respondent's management, concededly, vouchsafed no response with respect to these promptly submitted offers to resume work. While a witness, Vice President Frank declared that Respondent had, within 2 days following the August 12 work stoppage, hired a full complement of replacements; the strikers, he contended, were no longer required. This purported justification for Respondent's failure to respond, however, was never, so far as the record shows, communicated directly either to Complainant Union, or concerned strikers. Rather, several weeks there- after Vice President Frank publicly declared, when queried during a local television news program, that so far as he was concerned Respondent's business was no longer being struck; that "new help" had been hired; and that the strikers had been terminated. Meanwhile, on August 14, 1975, Complainant Union had filed unfair labor practice charges, docketed as Case 27- CA-4626, claiming that Respondent's workers had been discharged in retaliation for their protected concerted activities. Thereafter, on December 22, General Counsel's complaint with respect to these particular charges issued. General Counsel further charged that employee Rose's hours had been discriminatorily reduced, and that several August 12 statements chargeable to Respondent's manage- ment had constituted 8(aX)(1) violations. d. The settlement agreement On January 20, 1976, the Board's Regional Director approved a settlement in Case 27-CA-4626 which Com- plainant Union, however, had not signed, whereby Re- spondent agreed to offer the firm's August 12, 1975, strikers, save for two specifically named workers, immedi- ate reinstatement, consistent with their presumptive status as unfair labor practice strikers. Further, Respondent agreed to make whole six named employees whose prior "right of recall" for available work had been disregarded, even if they could, arguably, have been considered eco- nomic strikers. The settlement, however, compassed no general backpay commitment. Shortly thereafter, on January 26, 1976, a Board-spon- sored representation vote for Respondent's workers was conducted (so General Counsel's representative stated, without objection, for the record) wherein Petitioner, the Complainant Union, won a majority of the valid votes initially cast. Some 12 challenged ballots, however, were found determinative. The Regional Director's resolution of these challenges, subsequently, produced rulings whereby five were sustained. The seven challenges overruled, how- ever, resulted in six additional votes for Petitioner, the Complainant Union herein, plus one vote more cast against representation. On May 4, 1976, Petitioner was certified as the representative of Respondent's truckdrivers and loaders. Meanwhile, on January 27, Respondent's management had proffered, or tried to proffer, their firm's August 12, 1975, strikers immediate reinstatement, pursuant to the firm's settlement commitment, previously noted. Most of the strikers, so far as the record shows, reported for work. 2. The discharges Among Respondent's drivers and loaders scheduled for reinstatement pursuant to Case 27-CA-4626's settlement were Bruce Geller, James Mazzocco, Robert McKellip, David Rose, Sr., and Johnnie Slaughter. General Counsel currently contends, however, that these five workers were all denied reinstatement or discharged within 10 days of their purported reinstatement date because of their union or protected concerted activities; namely, their participa- tion in both the August 11 and 12, 1975, work stoppages and their subsequently revealed desire for union represen- tation. The record with respect to Respondent's course of conduct so far as these five workers are concerned must therefore be considered. a. Bruce Geller Respondent had initially hired Geller for loader's work during May 1974. Directly following his hire he had worked full time during the summer months of calendar year 1974, save for the last weeks of August which he "took off" before his full school sessions started. (Geller is currently a full-time student at the University of Colorado, Colorado Springs campus. When this case was heard he was working part time in the university library.) Thereafter, while attending school, Geller continued to work part time, like several other workers, in Respondent's hire; he provided casual "day labor" services, when needed, be- tween September 1974 and the last week of May 1975, specifically. The record warrants a determination, which I make, that he worked on the average 2 days per week, putting in 10 to 20 hours. With his regular school year then completed, the loader resumed full-time work with Re- spondent herein. He worked full time regularly until August 11 and 12, 1975, when, together with the rest of Respondent's drivers and loaders, he participated in the spontaneous work stoppages previously noted. Geller's casual part-time work derived, so the record shows, from a consensual understanding pursuant to which 458 SUPERIOR SANITATION, INC. he simply reported for some possible work assignment early each morning. Should Respondent then require a loader's services, Geller would be given work; whenever no loader's services were required, he would go home. Some- times, however, Respondent's general manager might telephone him at home, close to 8 o'clock, whenever a regular full-time loader had failed to report to work. When summoned, Geller would usually reach Respondent's premises close to 8:30. He would then be transported to Respondent's truck, presumably servicing its regular route, in the firm's service pickup truck. On January 27, 1976, Geller reported, together with his fellow strikers, to resume work. The loader requested consideration for casual part-time work, consistent with his previously maintained September 1974 - May 1975 work pattern. Respondent's vice president, however, offered him full-time work, which Geller declared he could not accept because he was then attending school. Dave Frank told the loader that Respondent was not hiring casual part-time workers. When summoned as Respondent's witness, Dave Frank conceded that Geller had told him he could not resume the full-time position which he had been filling when the strike started. He testified, however, that Respon- dent's former loader had stated no reason. Nevertheless, Frank further conceded, when cross-examined later, that he had previously been "aware" of Geller's casual "day labor" service between autumn of 1974 and the spring months of 1975. Likewise, Frank conceded that Geller had finally been told Respondent had no part-time work opportunities. He declared, however, that Respondent's former loader had been told he (Dave Frank) wished the latter could resume full-time work. Frank's testimony, so far as it differs from Geller's, merits no credence in my view. In fact, Rod Frank, Dave Frank's son, was then working part time. And, during March 1976, Geller learned from a company employee that Respondent was then hiring casual "day labor" workers, and that should he report he could probably get work, since the firm needed people. The former loader visited Respondent's headquar- ters facility, consulted the firm's board on which regular drivers and loaders were listed, and, so he testified without contradiction, noticed a number of vacancies. He asked General Manager Kondrup whether he could get work and Kondrup replied, so Geller's credible, undenied testimony shows, that Respondent's board roster had nothing to do with how he ran his routes. The worker-student was requested to leave. When, however, Respondent's former loader paused while on his way to speak with his friend, Kondrup left the firm's office. He approached both men, directing Geller to "get out of his building" and "get off" Respondent's property. b. James Mazzocco James Mazzocco had been hired in May 1975 for loader's work. Some 3 weeks after his initial hire, however, he had been designated a driver trainee. Mazzocco worked in this capacity, so his testimony shows, until he joined the August 11 and 12, 1975, work stoppages, previously noted. On January 27, 1976, he was reinstated pursuant to Respondent's settlement commitment, previously discussed herein. The next day, January 28, however, Mazzocco was discharged, purportedly because he had been tardy. He had not "called in" beforehand. Respondent contends herein that he was terminated consistent with a company rule, posted prior to August 11, 1975, and routinely followed both before that date and thereafter, which provided that: "'f]ailure to call in prior to the regular starting time in the event that you are ill or for any other reason cannot work" would be considered cause for termination and/or suspension. In this connection, how- ever, Mazzocco testified that, following his January 27 reinstatement, he had been given loader's work, though nominally reemployed for service as a driver; that on Wednesday, January 28, he had reported for work some 5 minutes after Respondent's regular 8 o'clock starting time; that some of Respondent's route trucks nevertheless were just leaving, or were still standing in the firm's yard; that he had told General Manager Kondrup his former wife had reported "late" that day while calling for their child, then in Mazzocco's custody; that General Manager Kondrup had thereupon initially declared Mazzocco would be sent to qualify for his required "Class B" driver's license that day, but had then designated him once more for loader's work; but that Vice President Frank had directly thereafter conferred with him regarding his tardiness, declaring that Respondent would no longer "put up with" such conduct; and that he (Mazzocco) had then been handed his check. However, Respondent's defensive presentation with re- spect to Mazzocco's dismissal reflects some significantly divergent testimony. Dave Frank, for example, disclaimed any participation in connection with Mazzocco's discharge. Instead, Respondent's president, James Frank, testified that both he and General Manager Kondrup had noted Mazzocco's late arrival shortly after 8:15, following the departure of Respondent's trucks; that Mazzocco, when queried with respect to his reason for tardiness, had said he did not know, while comporting himself in a manner which revealed, so Frank testified, that he did not care; that Respondent's relevant rule had been mentioned; and that Mazzocco had then been told he was through. Respon- dent's general manager, while a witness, denied having had "anything to do" with Mazzocco's termination. Neither of Respondent's witnesses testified with regard to Mazzocco's prior record of regularity or tardiness, or with regard to any other significant features of his prior tenure while in Respondent's hire. While testifying herein, Mazzocco recalled that he had previously been tardy only twice before the August 11 work stoppage. His tardiness on both occasions had been likewise caused by his former wife's failure to call in timely fashion for their child. On both of these occasions, Mazzocco declared, he had been 5 or 10 minutes late. However, nothing had been said, so he recalled, save for a managerial inquiry with regard to his reason for tardiness. The dischargee's testimony with regard to his prior record, which stands herein without challenge or contradiction, warrants a determination, which I make, that he had never previously been warned, suspended, or otherwise disci- plined for tardiness. On both prior occasions when he was tardy Mazzocco had been given loader's work. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this record, Mazzocco's proffered testimonial recol- lections with regard to his discharge, in my view, comport with reasonable probabilities; and they have been partially corroborated. His witness chair recital, save for his possibly mistaken designation of Dave Frank as Respondent's management spokesman responsible for his discharge, rings true. The composite testimony provided by Respon- dent's president, Dave Frank, and Respondent's general manager, so far as their recollections may differ from Mazzocco's version herein summarized, merits no cre- dence. c. Robert McKellip Robert McKellip had worked in Respondent's service "off and on" since 1965, and continuously between 1971 and his January 29, 1976, discharge, with which we are herein concerned. Between 1971 and August II and 12, 1975, when he joined the two work stoppages previously discussed herein, McKellip had been employed as a driver. During this period he had held a state-granted chauffeur's license; this had then been the class of license required to drive Respondent's trash collection trucks. On July 1, 1974, however, a State of Colorado statute which revised certain driver licensing requirements had become effective. This statute had required the responsible state department to define "such qualifications as it deems reasonably necessary" for the safe operation of various types, sizes, and combinations of motor vehicles. Pursuant to this statutory delegation, the regular issuance of chauf- feurs' licenses, comparable with the license which McKel- lip had previously been granted, was discontinued. Instead, three new license classifications which would, inter alia, cover those drivers who had previously been granted chauffeurs' licenses were created. (The department pro- posed to grant "Class A" licenses for drivers considered qualified to drive truck trailer equipment; "Class B" licenses for drivers of three-axle-tandem axle trucks, similar to those which Respondent's drivers handled; and "Class C" licenses, which qualified their recipients to drive conventional passenger vehicles and single-axle trucks.) Outstanding chauffeur's licenses, however, were to be permitted to remain effective, pending their regular expira- tion date. When renewals became necessary, with respect to such previously granted chauffeurs' licenses, "Class A, B, or C" licenses would be granted as their replacements depending upon the particular driver's demonstrated quali- fications. Throughout the period with which we are presently concerned, the State's new licensing require- ments, particularly with respect to qualifying for "Class B" licenses needed to drive vehicles like those in Respondent's truck fleet, called for drivers to demonstrate through a driving test and the successful passage of a written test their capacity to operate the particular equipment for which licenses were being sought; however, alternatively, "Class B" licenses could be granted drivers who produced so-called certificates of driving experience or training signed by employers properly qualified. When McKellip's old chauffeur's license expired on his birthday, August 17, 1975, he was participating in the August 12 work stoppage previously noted. Since he could then produce neither a valid certification letter prepared by his employer nor a tandem-axle truck with which he could take a driving test, he had been granted a minimal "Class C" license on August 15 when he got his renewal. This license, when granted, did not qualify McKellip to drive Respondent's trash collection trucks. The present record warrants a determination, which I make, that he was then cognizant with respect to his license's limitation, but considered himself constrained to "settle" for a "Class C" document. On January 27, 1976, when McKellip reported for work pursuant to Respondent's reinstatement proffer, he was rehired, so he "guessed" while a witness, for a driver's position. According to his testimony, however, he was merely given loader's work on both January 27 and 28. While a witness, McKellip declared that, since he believed he would be given driver's work, he had voluntarily notified General Manager Kondrup following the comple- tion of his first day's work, that when he had procured his renewed driver's license during the work stoppage period he had been granted merely a lesser "Class C" license. He recalled that Kondrup had reassured him, however, that Respondent would get the matter "squared away" by giving him a certification letter. Kondrup, when questioned in this connection, claimed that he had not been notified with regard to McKellip's license problem before the periodic license check, discussed hereinafter, which he conducted on January 28 covering all of Respondent's trash collection men. Further, Kondrup denied that McKellip had ever requested a certification letter; he conceded, however, that no such letter would have been prepared, since McKellip might have "jeopardized" the firm by damaging property while driving trash collection trucks, so Respondent's general manager claimed, for 2 days without a proper license. For several reasons, which will be discussed further in this Decision, Kondrup's negative testimony, summarized herein, should be rejected. McKellip's proffered recollections, particularly those con- cerning his conversations with Kondrup, relative to his driver's license merit credence, in my view. On January 28, Respondent's general manager conduct- ed a license check; the firm's truck crewmembers were requested to produce their licenses, while their respective license classifications were noted. McKellip produced his "Class C" license; his credible testimony, however, war- rants a determination, which I make, that Kondrup made no responsive comment with respect thereto. When McKellip reported on Thursday, January 29, he was summoned, sometime between 8 and 8:15, to Respondent's office. There, so the record shows, he was terminated. The dischargee's testimony with regard to his dismissal differs sharply from the mutually corroborative witness chair recitals which Respondent's witnesses have herein provided. Specifically, McKellip recalled that both James and Dave Frank, together with General Manager Kondr- up, were present; that Kondrup told him Respondent was "letting him go" because he lacked a proper license; that he (McKellip) declared he could procure a proper license within 2 hours should Respondent provide him with a certification letter; that Respondent's general manager declared he did not "feel obligated" with respect to such a letter's preparation; that he (McKellip) then asked whether 460 SUPERIOR SANITATION, INC. he could borrow a company truck with which he could take a qualifying driver's test; but that Respondent's manage- ment representatives declared they were not "obligated" to provide him with such a vehicle. With matters in this posture, so the dischargee testified, his check was prepared and he thereupon left. With respect to McKellip's termination, Respondent's witnesses, however, painted a significantly different pic- ture. General Manager Kondrup testified that when Re- spondent's former strikers resumed work in January 1976 there had been considerable confusion. He conceded that drivers' licenses had not been promptly reviewed. When, however, Respondent's truck crew personnel were can- vassed, within 2 days after their return, Kondrup learned for the first time, so he testified, that McKellip lacked a required "Class B" license. McKellip was thereupon requested to confer with Respondent's president. Kondrup recalled that he did not accompany McKellip on this occasion. The testimony which Respondent's president proffered with respect to what happened within his sanc- tum stands, therefore, without corroboration. James Frank recalled: Well, I got Bob in my office and I says, "Bob I understand you have been driving without a license" and he says, "Yeah." I said, "Well, you know you can't do that." He says, "Well, I did." I says, "As far as I am concerned you were deceiving the company when you accepted this job. You came back to your old job and really you are not even qualified," and he says, "So." I says, "So, I am going to have to let you go, my friend," and he says, "Just because I don't have a license?" I says, "I hired you as a driver, that's what you were when you left, that's what you should be when you came back to your old job. You offered to come back to your old job." And I says, "You deceived this company, and I am not going to tolerate it. You are not going to drive my trucks without a license." Further, Respondent's president testified that he advised McKellip to seek a required "Class B" license, suggesting that when the latter had procured such a license, which would qualify him to drive Respondent's trucks, McKellip should "come back and see" him. The dischargee, so Frank recalled, merely said, "Okay," and left. Upon this record, considered in totality, McKellip's testimonial recital, so I find, merits credence. He testified with straightforward candor. General Manager Kondrup and Respondent's president, however, proffered purported recollections carefully tailored, in my view, which would presumptively provide their vindication. The dischargee's testimony that he reported his "Class C" license status directly following the completion of his first day's work carries the ring of truth. Since he could reasonably have concluded, because of his prior periods of service, that Respondent's general manager would shortly be checking his licensed status, his witness chair declaration that he had reported his situation promptly, before being required to drive, comports with logical probabilities. And President Frank's testimony contrariwise that no such report had been proffered and that he had charged McKellip with blatant "deceit" which could not be tolerated smacks of hyperbole. Further, McKellip's proffered recollection that, when confronted with Kondrup's license query, he had requested a certification letter or permission to borrow a company truck whereby he could qualify for the requisite license reflects two reasonably likely suggestions whereby his dilemma, together with Respondent's, could have been properly resolved. (The record warrants determinations, which I make, that at various times Respondent has given drivers with recently expired licenses certification letters which facilitated their "Class B" license renewals. Further, Respondent has, so I find, permitted some drivers to run trash collection trucks to the State's local driver's license bureau during their lunch hours or following their run's completion, so that such drivers might then present certification letters or take the State's required test.) Kondrup's contrary testimony that McKellip had never requested a certification letter or permission to borrow a company truck with which he could pass a driving test strains credulity. President Frank's witness chair failure to recall such requests further constrains disbelief. Consistent with these conclusions, McKellip's testimonial recapitula- tion regarding the particular circumstances which had generated and resulted in his discharge will be credited herein. d. David Rose, Sr., and Johnnie Slaughter David Rose, Respondent's service and maintenance mechanic, and driver Johnnie Slaughter were both reinstat- ed on January 27, 1975, pursuant to Respondent's informal settlement commitment, previously noted. On February 5, however, their employment ceased. General Counsel con- tends herein that both were pretextually discharged be- cause of their refusal to sign payroll deduction authoriza- tion forms pursuant to Respondent's request. The forms in question concern a fund which Respondent maintains, the Superior Sanitation Employees Fund, spe- cifically, colloquially designated as Respondent's SSEF fund. The firm's management had established that fund, so President Frank's credible testimony shows, some 8 years previously. Its generation, method of growth, purpose, and final disposition have been set forth substantially within the form with respect thereto, which Respondent's workers have been for some time past routinely requested to sign. That form reads as follows: The insurance policy which provides Superior Sani- tation Inc. with Liability Coverage, is carried through the Tolley-Weidman Insurance Agency, Colorado Springs, Colorado. This policy is a $250.00 deductible policy, that is to say, those accidents in which we are involved ... whose damage exceed S250.00, we, Superior Sanitation Inc., must pay the first $250.00, the remainder, if any, is covered by the insurance policy. I, . . (employee's name) ... , do hereby agree, that I am liable to participation in such damage claims, in an amount equal to the full damages, provided that I am at fault, through carelessness, negligence or willful misuse of company and/or customer equipment or property. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further agree that an amount equal to $3.00 per week, up to $250.00 total, will be withheld from my wages. If at any time during my employment at Superior Sanitation Inc. my account shows a deficit, I agree that the company may withhold an amount greater than $3.00 per week, to make up such deficit. The form further reflects Respondent's commitment that whenever a worker's employment terminates, whether through discharge or resignation, with a credit balance within his SSEF fund account, such fund moneys will be returned directly to the concerned worker within 14 days of his termination. The record herein warrants a determina- tion, which I make, that before January 27, 1976, Respon- dent's management representatives had requested their firm's drivers and loaders to sign SSEF payroll deduction forms, but had not considered their signatures mandatory. Further, the record warrants a determination that through- out the period with which the case is concerned Respon- dent's management representatives have, routinely deduct- ed $3 weekly from each company worker's paycheck, regardless of whether they had or had not previously signed a payroll deduction form. With due regard for these relevant background consider- ations, both Rose's and Slaughter's terminations, chal- lenged herein, must now be reviewed. Slaughter did not testify. Rose's proffered recollections with regard to Slaughter's departure, which provide the sole factual picture presented herein with regard to that driver's termination, reveal that, while standing in Respon- dent's shop shortly before 8 o'clock on the morning of February 5, specifically, the mechanic saw Dave Frank and Slaughter conversing nearby; that he saw Frank hand Respondent's driver a piece of paper which he requested the latter to sign; that Slaughter refused; that Respondent's vice president then notified him that he could not work for Respondent unless he signed; and that Slaughter again refused, noting Rose's prior failure or refusal to sign. Within 3 or 4 minutes thereafter, so Respondent's mechan- ic recalled, Slaughter left Respondent's premises. When queried regarding his own departure, somewhat later that morning, Rose testified that, close to 8:30, Vice President Frank approached him; that Rose was given a blank SSEF payroll deduction authorization form; that Frank requested him to read it and sign; that he refused to sign twice while soliciting Frank's reaction; and that Respondent's president then declared he "might as well go home" since he could not continue in Respondent's hire. The present record provides no clue, derived from Rose's testimony specifically, with respect to his reaction; presum- ably, however, the mechanic left. With regard to these challenged terminations, Respon- dent's witnesses have again provided conflicting testimony. Dave Frank categorically denied any conversation what- soever with Slaughter regarding the firm's SSEF payroll deduction form; Respondent's vice president testified, rather, that General Manager Kondrup had told him Slaughter had refused to sign the deduction form, and that the driver had resigned forthwith. While a witness, General Manager Kondrup corroboratively recalled that he had requested a number of workers for whom no previously signed SSEF payroll deduction forms could be found in Respondent's files to sign such forms; that Slaughter had read the form when presented with it; that the driver had then voiced several obscenities declaring that he would not sign the form; that Kondrup had thereupon pleaded with Slaughter, requesting him to think about Respondent's request; but that Respondent's driver had declared he would "not sign nothing [for] nobody" while storming off, and, presumably, leaving Respondent's premises. With respect to Rose's February 5 termination, Vice President Frank further testified that he had visited Respondent's shop to discuss the firm's SSEF payroll deduction form; that Rose and he had conversed casually for several minutes; that Frank had then declared he could not find Rose's payroll deduction authorization form, presumably signed previously; that he had, therefore, requested Rose to read the form again; and that Frank had declared his desire to have Rose sign. Respondent's vice president testified further that his firm's mechanic, follow- ing his reading of the form, had said he would not sign; that he had started to walk away; that he had been repeatedly requested to discuss Frank's request; but that he had refused while proclaiming his resignation. In their brief, General Counsel's representatives current- ly contend that Dave Frank's proffered recollections, particularly with reference to both Rose's and Slaughter's terminations, together with General Manager Kondrup's corroborative recital, merit rejection. On balance, however, Respondent's witnesses have, in my view, proffered testi- monial recapitulations with respect to relevant develop- ments which merit credence; more so, certainly, than Rose's sole, uncorroborated recitals. General Counsel's representatives suggest that Vice President Frank's purportedly "reasonable" request for Rose's signature would "surely not" have provoked a resignation response such as Respondent's vice president described. Further, General Counsel's representatives note that Respondent's mechanic had shortly prior thereto been reinstated following a lengthy strike. They would question the probability that a newly reinstated worker, presumably in straitened financial circumstances directly following a lengthy work stoppage, would summarily resign his posi- tion. With all respect I find these suggestions, bottomed merely upon General Counsel's view of the relevant probabilities, less than persuasive. In the present record Respondent's mechanic stands revealed as testy, somewhat headstrong, and disposed to touchiness when confronted with fancied slights or conceivably discriminatory treat- ment. Thus, Respondent's defensive presentation, calculat- ed to suggest, presumably, that Rose had resented manage- ment's form "signature" request, reflects a behavior pat- tern, chargeable to Respondent's mechanic particularly, which he would, in my view, most likely have displayed. I note in this connection that following his reinstatement Rose had been given limited duty; his regularly assigned tasks had been limited to mechanic's work consistent with Respondent's belief, which Rose's three superiors presum- ably shared, that he would protest make-work truck driving assignments. The mechanic claimed that during 8 working days between January 27 and February 4 he worked only 22 hours. Thus, Respondent's mechanic, presumably, would have found his earning capacity restricted. He might 462 SUPERIOR SANITATION, INC. very well have been predisposed to resent a managerial request which he would most likely have considered pushy, officious, unnecessary, or without legal justification. Fur- ther, I note Rose's demonstrated inability to recall, within reasonable limits, when certain relevant events herein took place. Previously in this Decision Respondent's various management representatives have not been considered particularly prepossessing, or persuasive, witnesses. Some- times, they vouchsafed evasive replies. Nevertheless, their composite testimony that Rose had resigned, when com- pared with the mechanic's contrary declaration, while a witness, that he had been discharged, carries somewhat greater persuasion, in my view. The likelihood that Rose's superiors who had for a number of years considered SSEF payroll deductions both necessary and proper, sometimes without signed payroll deduction forms in their possession, would have considered the mechanic's formal signature permitting such deductions their firm's nonwaivable re- quirement for his continued tenure logically seems remote. Further, with regard to Slaughter's separation, which General Counsel's representatives would likewise consider a discharge, the proffered recollections of Respondent's general manager, calculated to suggest a resignation, merit credence, in my view. In this connection, I note first that Kondrup's testimony, particularly with regard to Slaugh- ter's purported resentment when requested to sign Respon- dent's SSEF payroll deduction form, stands without a participant's contradiction, since Respondent's driver did not testify; and second, that Rose's testimony, with regard to Vice President Frank's purported confrontation with Slaughter, clearly reveals Rose's conceded departure from the scene before that confrontation had reached its climax. While a witness, Rose could not designate precisely which particular "piece of paper" his fellow worker had purport- edly been requested to sign. Further, Respondent's me- chanic reported Slaughter's defiant declaration that he would not sign the proffered document, inter alia, because "David Rose" had not signed it; however, the latter, while a witness herein, volunteered testimony with regard to Slaughter's purported comment despite his recollection, subsequently proffered, that Vice President Frank had initially solicited his signature some 40 minutes later. Finally, Respondent's mechanic, though he did testify that he saw Slaughter leave Respondent's premises, never suggested that he had himself heard whether Respondent's vice president had finally directed the driver's departure, or, contrariwise, whether Slaughter had countered Frank's signature request specifically with a resignation. Lastly, I note Rose's seemingly volatile temperament, previously discussed herein; mindful of the conceivable possibility, therefore, that his capacity for correct perception, complete recollection, and reliable witness chair narration may have been somewhat "affected" thereby, or, alternatively, that some post hoc rationalization grounded in partisan sympa- thies may have influenced, transmuted, or modified the mechanic's memory. I find no reliable, probative, or substantial record testimony herein sufficiently persuasive to warrant a determination that both Rose and Slaughter were discharged. 3. Subsequent developments On January 30, 1976, shortly following Respondent's conceded refusal to consider Bruce Geller for casual "day labor" work, Mazzocco's termination, and McKellip's discharge, Complainant Union filed the charge (Case 27- CA-4815) which initiated the present proceeding. Therein Complainant Union charged that Respondent had violated Section 8(aX)(1) and (3) of the statute; further, Complainant Union charged that Respondent had violated the January 20, 1976, settlement agreement negotiated with regard to Case 27-CA-4626, which I have previously noted herein. Thereafter, on March I 1, the Regional Director for Region 27 notified Complainant Union's counsel that: Investigation of the charges filed in Case No. 27-CA- 4815, and the alleged violations of the Settlement Agreement in Case No. 27-CA-4626 has been com- pleted, and the evidence carefully considered. As a result of the investigation, it appears that the Employer is not in violation of the Settlement Agreement ap- proved in Case No. 27-CA-4626. Further, there is no evidence to support the allegations in Case 27-CA- 4815. Consistent with these determinations, the Regional Direc- tor notified Complainant Union's counsel that Respon- dent's January 20 settlement would be considered reinstat- ed, and that no complaint would be issued thereafter bottomed upon the charges in Case 27-CA-4626 or Case 27-CA-4815. Confronted with these determinations, so General Coun- sel's representatives have herein stated for the record without contradiction, counsel for Complainant Union sought a review of Regional Director Sperandeo's dismissal notice. With respect thereto, the present record reveals a further statement, proffered by General Counsel's repre- sentatives without challenge, that "the appeal by the Union through their attorney, Mr. Criswell, was treated by the Regional Office in the nature of a motion for reconsider- ation, and they have subsequently reconsidered the deter- mination not to issue a complaint in [Case 27-CA-4815]." Meanwhile, however, Respondent's trash collection work- ers had, sometime during August or September 1976, commenced a new strike. With respect to certain develop- ments while that strike was in progress Harold Thompson, then a striking driver, filed a charge (Case 27-CA-5056-2) wherein certain 8(aX1) violations chargeable to Respon- dent's president, James Frank, were claimed. Two days later, pursuant to correspondence and some further discus- sion between Respondent's counsel and Regional Office representatives, Respondent's president signed a stipula- tion which, in relevant part, reads as follows: The parties hereby stipulate that for purposes of presenting evidence at any unfair labor practice hearing involving the charges in case number 27-CA-4815, Superior, the General Counsel, and any other party to the litigation, shall be permitted to submit any relevant and material evidence arising from the facts in case number 27-CA-4626, either as background or for any other permissible object. It is understood by Superior, 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the General Counsel, that because of this Stipula- tion both parties agree that there is no need to revoke the Settlement Agreement previously executed by Superior in case number 27-CA-4626 and to litigate the allegations settled in that Agreement assuming full compliance with terms of said Settlement Agreement by Superior. With matters in this posture, the Regional Director issued his October 27, 1976, order consolidating cases, consolidat- ed complaint, and notice of consolidated hearing with respect to both Case 27-CA-4815 and 27-CA-5056-2 herein. Shortly before these consolidated matters were heard before me Complainant Union's attorney notified Respon- dent's counsel in a February 2, 1977, letter that because of a representation vote which had been conducted pursuant to the State of Colorado Labor Peace Act shortly prior thereto, Complainant Union was disclaiming any further interest with respect to the representation of Respondent's employees for collective-bargaining purposes. 4. Respondent's purported threat Previously in this Decision Complainant Union's Au- gust-September 1976 strike directed against Respondent herein has been noted. During that strike, driver Harold Thompson had more or less regularly picketed. Specifical- ly, he had participated in picket lines at Respondent's Colorado Springs premises and had likewise done "roving" picket duty. Thompson's testimonial description with regard to his methods of conventional "ambulatory" picketing reflects lawful conduct in my view. Respondent's counsel, in their brief, suggest that Thompson, together with a companion picket, may have been conducting so- called "secondary boycott" picketing, which this Board could have proscribed because it was presumably calculat- ed to directly "enmesh" various persons employed by neutral firms serviced by Respondent's trash collection trucks. Nothing within the present record, however, would warrant such a determination. Once while Thompson and David Branton, his fellow "roving" picket, were following a trash collection truck, the truck's nonstriking driver, who had driven his vehicle into a used-car dealer's premises, made contact with an overhead string of lights suspended between poles, which defined the car lot's perimeter. Directly thereafter, Complainant Union's pickets, in their vehicle, followed Respondent's truck into the dealer's open property. Thompson parked and notified the car dealer that Respondent's truck had "run through" his lights. The dealer, greatly incensed, promptly telephoned Respondent's office. Further, having done so, he directed Respondent's truckdriver to remain, pending the arrival of some management representative. Then, however, he directed Complainant Union's pickets to remove their vehicle from his lot; this, so the record shows, they promptly did. When Respondent's trash collection truck finally left the dealer's lot, Complainant Union's pickets again trailed the firm's vehicle. They proceeded to its next stop, where the truck's driver halted for lunch. While Thompson remained seated in his motor car, parked "probably 150 to 200 feet" distant from Respon- dent's truck, Branton left momentarily. Shortly thereafter, Respondent's president, James Frank, drove up (the record herein suggests that he had just concluded a discussion and settlement with the car dealer whose suspended "light string" had shortly before been damaged). Seated in their respective vehicles, President Frank and Complainant Union's picket exchanged some heated remarks. With respect thereto, Thompson's testimony, recapitulated in relevant part, reads as follows: We just had a few words regarding a roving picket. Nothing serious at this time. At the time then when that [the witness designates his unfair labor practice charge was filed, everybody seemed to think it was pretty serious. Q. Can you recall what was said by Mr. Frank? A. That we should stop following his trucks, har- assing the drivers. Q. Do you recall what, if anything, Mr. Frank said would happen if you didn't stop following the trucks? A. The possibility that I would be arrested or the possibility that I would get hurt. Q. Do you recall if he said how you would get hurt? A. At this time, I would have to say no. Somebody would injure me, but I couldn't swear to who. Q. Can you recall whether anyone else besides yourself and Mr. Branton and Mr. Frank were involved in the discussion that you had? A. In that discussion, no. The police arrived later after the discussion ... Well, Mr. Frank wanted me, wanted to have me picked up for harassment and for interfering with his men, and the officer went in and he checked with the District Attorney or whoever, and he came back out and he stated that as far as they knew, we were legal and could carry on the way we were going except that we were getting under each other's collars. Well, they had split us up, and the officer that we were with, I just told him that, I said, "Well, nothing was really going on except we had a few threats going," and then they got it together and told us to split. Subsequently, when requested by General Counsel's repre- sentative to redescribe his initial verbal "altercation" with Respondent's president before Colorado Springs police reached the scene and during Branton's absence, Thomp- son recalled, further, that: [Me] and Dave [?] had a few words about the job, and he just told me that he was going to have me picked up ... He told [sic] me what was I doing, and I told him that I was working. He asked me, well, why didn't I have some good sense to go to work instead of being here harassing my [sic] men, and I told him I had nothing better to do. I asked something I shouldn't ask. I did, in fact, ask him what a good contract cost these days . . . Well, being smart about it, it is a hit man, somebody to have me injured. What I meant by that 464 SUPERIOR SANITATION, INC. was a contract to have somebody have me injured or a hit man. Q. Had a contract to have you injured been mentioned before? A. No, in fact, I brought it up, which was kind of a dumb thing to do. I was being sarcastic at the time. Q. What was it that caused you to bring this up, Mr. Thompson? A. Well, the fact that he said if I kept on messing around, I was liable to get hurt. Q. Can you recall whether or not anything was ever said about your working for Jim Frank again? A. Well, there was a mention made with Mr. Branton in the vehicle that we ought just to give it up and leave them alone because we weren't getting our jobs back, that they weren't, didn't see any settlement in sight. When queried further by Respondent's counsel, Thompson conceded that during his heated discussion with Respon- dent's president the latter had mentioned "fights [which] had occurred between Union or nonunion [men] in the past" declaring that he didn't want this to happen again. And President Frank, testifying subsequently on Respon- dent's behalf, recalled that his comment had been prompt- *d by his recollections regarding two prior violent confron- tations - which he mentioned while a witness but did not describe. The present record provides no warrant for a determination that Respondent's president had previously mentioned these confrontations specifically during his verbal "altercation" with Thompson summarized herein. Considered in totality, the record, in my view, persua- sively suggests that nothing further of significance tran- spired; I so find. When the Colorado Springs policemen whom President Frank had summoned finally departed, Respondent's management representative likewise left the scene. C. Discussion and Conclusions 1. The discharges a. General statement Whenever refusals to hire, refusals to reinstate, or discharges are challenged because of their claimed improp- er motivation, General Counsel's representatives must, consistent with well-defined decisional principles, demon- strate persuasively that such conduct, purportedly charge- able to some particular respondent firm, derived wholly or partially from statutorily proscribed rather than legitimate considerations. In other words, the question presented whenever 8(aX3) violations have been charged will require a determination, inter alia, regarding the designated firm's " 'true purpose' or 'real motive' " for discriminatory conduct. Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.LR.B., 365 U.S. 667, 675 (1961), quoting The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. [Bull Steamship Co.] v. N. LR.B., 347 U.S. 17, 43 (1954). And, when workers have been subjected to discrimination related to their hire, their employment tenure, or their working terms and conditions specifically calculated, wholly or in material part, to discour- age their union membership or their participation in concerted activity for mutual aid or protection, their concerned employer's concurrent reliance on some pre- sumptively lawful reason or legitimate justification for his challenged conduct will not provide his determinative vindication. Local 152, aff/w International Brotherhood of Teamsters, Chauffeurs and Helpers of America [American Compressed Steel] v. N. LR.B., 343 F.2d 307, 309 (C.A.D.C., 1965). Conversely, however, when possibly questionable conduct cannot reasonably be considered motivated, wholly or partially, by statutorily proscribed considerations, proof that the concerned employer may nevertheless have pursued a demonstrably "arbitrary, unfair or unreasonable" course cannot be considered sufficient to sustain critical judgments. The Board has frequently been reminded, judicially, that the National Labor Relations Act does not give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment . . . . [An] employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act. See N.LR.B. v. Ace Comb Company and Ace Bowling Company, Division of Amerace Corporation, 342 F.2d 841, 847 (C.A. 8, 1965); likewise, see N.LR.B. v. T. A. McGahey, Sr., et al., 233 F.2d 406, 413 (C.A. 5, 1956), together with the cases therein cited, in this connection. Further, the participation of workers in statutorily protected conduct cannot insulate them from normal plant discipline. American Ship Building Co. v. N.LR.B., 380 U.S. 300, 311 (1965). The Supreme Court noted therein that the proscriptions of Section 8(aX3) leave: unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership .... Such a construc- tion of § 8(aX3) is essential if due protection is to be accorded the employer's right to manage his enterprise. Compare Corriveau & Routhier Cement Block, Inc. v. N.LR.B., 410 F.2d 347, 350 (C.A. 1, 1969), citing N.LR.B. v. Ogle Protection Service, Inc., and James L Ogle, an Individual, 375 F.2d 497, 505 (C.A. 6, 1967), in this connection. Finally, the Board has been judicially admonished that a respondent employer's general hostility to unions, or to workers participating in union or concerted activity, without more, cannot supply unlawful motivations with relation to specific discharges. See Fort Smith Broadcasting Co. v. N.L.R.B., 341 F.2d 874, 873 (C.A. 8, 1965), in this connection. Over the years the Board has with variable phraseology and in a multiplicity of factual contexts repeatedly noted its concurrence with these decisional principles. See, e.g., P. G. Berland Paint City, Inc., 199 NLRB 927, 928 (1972), enfd. 478 F.2d 1405 (C.A. 7, 1973). In its decision in that case, the Board declared that: 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The mere fact that an employer may want to part company with an employee whose union activities have made him persona non grata does not per se establish that a subsequent discharge of that employee must be unlawfully discriminatory. If the employee himself obliges his employer by providing a valid independent reason for discharge - i.e., by engaging in conduct for which he would have been discharged anyway - his discharge cannot properly be labled a pretext and ruled unlawful. Save where the reason itself is unlawful, it is not for the Board to substitute its judgment for that of management as to what constitutes proper cause for discharge. Unless the ground advanced is inherently implausible, is unsupported by credible evidence, or is proved by the record to have been used disparately on the basis of unlawful considerations, its rejection by the Board is unwarranted. [Emphasis supplied.] Nevertheless, determinations with respect to whether chal- lenged refusals to hire, refusals to reinstate, or discharges should be considered improperly motivated may be de- rived, permissibly, from circumstantial as well as direct evidence. See N.LR.B. v. International Longshoremen's & Warehousemen's Union & Local 27, 514 F.2d 481, 483 (C.A. 9, 1975); Famet, Inc. v. N.L.R.B., 490 F.2d 293, 295 (C.A. 9, 1973), citing N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9, 1969), in this connection. Evidence directly probative regarding a respondent employer's statutorily proscribed motivation for challenged conduct will rarely be procurable; when unexpressed or masked, such a motive's presence must be deduced. Deductions with respect thereto, however, must be reason- able. N.LR.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965). They cannot be facilely reached. Mr. Justice Frankfurter, speaking for the Supreme Court in N. LR.B. v. Donnelly Garment Company, 330 U.S. 219, 229 (1947), has noted that, "According to an early English judge, 'The devil himself knoweth not the mind of man.' " The Board's triers of fact can hardly consider themselves better equipped when required to draw "inferences" with regard to motivation from circumstantial evidence, despite a concerned employer's failure or refusal to lay bare his relevant mental processes. When confronted with such situations, therefore, triers of fact must necessarily derive their conclusions regarding a respondent employer's possi- bly improper motivation for challenged conduct primarily from that conduct's relevant context. N.L.R.B. v. Riley Stoker Corp., 559 F.2d 1209 (C.A. 3, 1977). In short, with respect to so-called "circumstantial evidence" cases, deter- minations regarding a respondent firm's possibly unlawful motivation really call for inferences logically derivable from the given situation's complete picture. This means, normally, that General Counsel's representatives seek to have their given situation's superficially legitimate appear- ance disregarded, or minimized, so that some less-than- direct signs, proffered for the record as probative with respect to purpose or motivation, may reasonably be considered sufficiently substantial to outweigh statements or conduct which, standing alone, might suggest privileged behavior. Herein, we are confronted with several such cases. General Counsel's representatives contend, substantially, that Respondent's proffered congery of reasons, calculated to justify refusals to hire, refusals to reinstate, and dis- charges, should be considered, when dispassionately re- viewed, less than sufficient to warrant the firm's vindica- tion. From this, General Counsel's representatives would then argue that Respondent's reasons for challenged conduct herein must have been pretextual. A respondent employer's reliance upon pretexts when justifying challenged personnel actions may legitimately be considered substantial "evidence" with respect to his unlawful motivations whenever "the surrounding facts tend to reinforce" the trier's deductive inference that such motivations were operative. Shattuck Denn Mining Corp. (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (C.A. 9, 1966). Idaho Frozen Foods, Division of Consolidated Foods Corporation, 173 NLRB 1322 (1968); compare Central Casket Co., 225 NLRB 362 (1976) (Irma Lara's discharge), in this connection. Consistent with this principle, General Counsel's representatives herein seek a determination that Respondent's reiterated refusal to consider Geller's request for casual "day labor" service opportunities, Mazzocco's subsequent discharge, and McKellip's still later dismissal, coupled with Rose's and Slaughter's later questionable terminations, were really motivated, wholly or partially, by statutorily proscribed considerations. With matters in this posture, Respondent's course of conduct challenged herein, particularly with regard to these five terminations, must now be considered. b. Bruce Geller General Counsel's representatives contend herein that Respondent's refusal to provide Geller with genuinely "effective" reinstatement, when Vice President Frank declared that he could not be considered a candidate for current or future hire, limited to casual "day labor" service, should be considered discriminatory treatment statutorily proscribed. They have summarized their position thusly: [There] is a compelling inference that Geller would not have been denied reinstatement as a casual employee in January of 1976 but for his protected activity .... Respondent exhibited animus towards its employees' exercise of statutory rights, had knowledge of the exercise by Geller of these rights, and seized upon the first opportunity to discriminate against Geller, based on the exercise of these statutory rights, by refusing to rehire him. Upon the present record, considered in totality, I find General Counsel's suggestion persuasive. The consider- ations which have constrained me to reject Respondent's contrary contention that the firm's former loader was properly offered his "old [full-time] job" back, but specifi- cally refused Vice President Frank's proffer of full-time reemployment should, however, be detailed. We begin with a review of Respondent's reaction to both spontaneous work stoppages, previously noted herein, which the firm's drivers, loaders, and mechanic initiated on August 11, 1975, renewed the following day, and continued 466 SUPERIOR SANITATION, INC. for slightly better than 5 months thereafter. Management's reaction had been definitely hostile. President Frank had clearly responded with agitation, masked by anger; he had declared, inter alia, that Respondent's strikers couldn't "do this" to him. On August 12, despite a promise given the previous day that Respondent's workers would suffer no reprisals, the firm's vice president, sua sponte, had verbally recapitulated Respondent's posted rules. His presentation's substance and tone had impressed his listeners as manifest- ly retaliatory and coercive. Cf. Kenneth Jones, d/b/a Old Western Manufacturing Company, 231 NLRB 193 (1977). When questions were raised with regard to Rose's reduced hours, which had prompted Driver Quevas' charge that Respondent's management had seemingly commenced a program of retaliation, General Manager Kondrup had heatedly declared his belief that Respondent should "draw a line" forthwith, calculated to foreclose further discussion. Kondrup's proclaimed obduracy had clearly directly pre- cipitated the August 12 work stoppage. And when, shortly thereafter, some 24 strikers sought to resume work uncondi- tionally, their requests had been summarily rejected. Later, confronted with a continuing work stoppage, maintained with Complainant Union's support, Respondent's manage- ment representatives had selectively solicited individual strikers to resume work. Subsequently, however, Dave Frank had somewhat inconsistently declared, when ques- tioned by a local television news reporter, that, since striker replacements had been hired, Respondent considered the strikers terminated. With matters in this posture, Respon- dent's manifestly persistent "animus" toward its striking workers, responsive to their exercise of statutorily guaran- teed rights, cannot be doubted. In their brief, General Counsel's representatives have characterized Respondent's August I and 12, 1975, reactions as massive unfair labor practices. They would have the August 12 work stoppage further considered an unfair labor practice strike. They contend that Respon- dent's management, "by failing to accord any recognition to the rights of these strikers and by failing to acknowledge their unconditional requests to return to work," continued its pattern of flagrant violations with respect to their statutory rights. General Counsel's representatives, how- ever, have conceded that specific unfair labor practice findings with regard to these claimed "substantive" viola- tions must be considered precluded by the informal settlement agreement, previously noted herein, pursuant to which Respondent agreed that its striking workers would be given reinstatement rights consistent with their pre- sumptive status as unfair labor practice strikers, and that management's prior 8(aX)!) conduct would be remedied. Upon this record, no determinations can properly be considered either warranted or necessary with respect to whether Respondent's reinstated workers had been "unfair labor practice" strikers or conventional "economic" strik- ers. Whatever their status, Respondent's hostility toward their manifest exercise of statutorily guaranteed rights, however, cannot be questioned. And the firm's presettle- ment conduct clearly will provide relevant "background" which may persuasively suggest Respondent's motive or purpose for postsettlement conduct challenged herein. Local Union 613 of the International Brotherhood of Electri- cal Workers, AFL-CIO M. H. E. Contracting, Inc., 227 NLRB 1954, fn. I (1977). 1 have considered Respondent's presettlement conduct with its possible relevance as back- ground in mind. In most cases, some demonstrably proximate time relationship between a concerned respondent's manifesta- tion of statutorily proscribed "animus" and purportedly consequent discrimination must be shown before 8(a)(3) violations can be found. Cf. Howmet Turbine Components Corporation, 230 NLRB 912, 915, fn. 11, (1977); Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, 227 NLRB 1800 (1977). However, management's projected campaign of direct retribution herein, presumptively launched because Respondent's workers had initiated their August II work stoppage, had clearly been forestalled when that stoppage was shortly thereafter renewed. As General Counsel's representatives note cogently in their brief, the firm's "opportunity to follow through" with projected reprisals could not have matured, or been pursued, before the strikers were reinstated. Compare The Anthony Company d/b/a El Dorado Club, 220 NLRB 886, 888-889, 900-901 (1975) (Respondent's postreinstatement warning to Hogg), enfd. 557 F.2d 692 (C.A. 9, 1977), in this connection. With respect to Respondent's treatment of Geller in particular, I find a determination clearly warrant- ed that management's general purpose of reprisal was still "operative" despite a 4- or 5-month lapse since that purpose's most recent overt manifestation when Respon- dent's former loader reported for reinstatement. Geller's tenure in Respondent's hire had been somewhat varied because of his full-time student status during the winter months of 1974-75. Respondent's management had accommodated him with respect to those time limitations which his university schedule had mandated by providing him with casual "day labor" work during the school's regular term. Yet no such accommodation was suggested, proffered, or granted when Respondent's former loader reported on January 27, 1976, and so I find, specifically requested part-time work since he was again carrying a full college schedule. Dave Frank replied, so Geller's credible testimony shows, that Respondent was not then hiring part-time help; he rejected the former loader's request for less than full- time work. For various reasons, Vice President Frank's declaration, in my view, may properly be considered contrived. First: Determinations must be considered clearly war- ranted herein that both Respondent's vice president and General Manager Kondrup knew Geller had provided merely casual "day labor" service throughout his prior 1974-75 school term; consequently, in my view, Respon- dent's management representatives, when they offered their firm's former loader full-time work during his 1975-76 college term then in progress, must have believed, or had reason to believe, that their offer would be rejected. Second: Respondent's further contention that no casual "day labor" workers were currently being hired when Geller reported for his January 27, 1976, reinstatement strains credulity; credible testimony proffered for the record without challenge or contradiction warrants the argument's rejection. Dave Frank testified initially that 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has not hired "any" casual help, recently, since the August-September 1976, strike mentioned previ- ously herein. Consistently, he contended further that when Geller reported for January 1976 reinstatement, the firm's crew had already reached full size with everybody report- ing for work. However, Respondent's vice president con- ceded subsequently that he could not "honestly" say whether or not his firm had then been utilizing casual help; he declared that General Manager Kondrup had been responsible for hiring casual employees when required. The latter, when summoned as Respondent's witness, was not questioned, however, with regard to Respondent's January 1976 need for casual part-time workers. When cross-exam- ined, Respondent's general manager declared initially that he had not hired day laborers for some long period of time. Subsequently, however, he conceded that Respondent had sought casual help during the firm's August-September 1976 strike, but without success. Further, Respondent's general manager conceded, while a witness, that he would hire day laborers currently should their services be re- quired, thus, partially at least, contradicting Vice President Frank's testimony. With matters in this posture, Respon- dent's present contention that during January 1976 particu- larly wintertime casual help was never required carries no persuasion. In contrast, Geller testified credibly and with- out persuasive contradiction that he had been told Respon- dent needed day laborers during March 1976; that he had visited Respondent's premises; that his review of Respon- dent's posted route roster had revealed vacancies which casual workers could fill; but that General Manager Kondrup had brusquely rejected his request for a work assignment, declaring that Respondent's routes were being run without regard for possible roster vacancies. Finally, Harold Thompson, currently in Respondent's hire, while testifying pursuant to subpena, reported that Respondent had experienced "no show" problems during 1976's year- end holiday period, and that during February 1977 when this case was heard Respondent was frequently having comparable Monday morning "no show" problems when no more than "half enough drivers to do the routes" would report for work. The present record, considered in totality with due regard for logical probabilities, fully warrants a determination, in my view, that future casual "day labor" work for which Geller might have been permitted to apply could reasonably have been foreseen during January 1976 and thereafter, by Respondent's management. Third: Respondent's prompt rejection of Geller's part- time work request merits characterization as particularly arbitrary, capricious, and lacking in rational justification, since the firm's management clearly would not have been required to provide him with a definite position forthwith. Essentially, Respondent's former loader had merely re- quested a January 27 commitment that for the time being he would be fairly considered, consistent with the firm's past practice, for future "day labor" work assignments, when needed, during his school term. Such a commitment herein would have at the time cost Respondent nothing. Dave Frank's reluctance to provide it persuasively suggests discrimination. With Respondent's rejection of Geller's request then, clearly subject to characterization as pretextual, we con- front the question of management's motive. In this connec- tion, I note, inter alia, the former loader's credible testimo- ny that following the conclusion of his March 1976 visit to Respondent's premises he was harshly directed to "get out of [General Manager Kondrup's] building" and "get off' Respondent's property. The general manager's rough direc- tive, which clearly suggests a gratuitously blunt reaction sparked by Geller's innocently brief conversational pause while on his way out, before his projected departure, precisely reflects Kondrup's previously manifested hostili- ty's persistence, in my view. Thus, consistent with General Counsel's contention, I conclude that: [Given] the long association of Geller with the Compa- ny, and the past accommodation of his employment status to the requirements of his student status, making this accommodation the terms of Geller's employment, there is a compelling inference that Geller would not have been denied reinstatement as a casual employee in January of 1976 but for his [prior] protected activity. [Emphasis supplied.] Respondent's management representatives, together, had previously demonstrated hostility toward those of their workers who had chosen to exercise statutorily guaranteed rights; they knew that Geller had participated when those rights were being exercised; and they seized their first opportunity to discriminate against him, I find, because he had chosen to exercise statutory rights, by their refusal to promise him appropriate consideration for current or future casual employment. c. James Mazzocco With respect to Mazzocco's January 28 discharge, pur- portedly bottomed upon his tardiness when reporting for work, General Counsel's contention that Respondent's management representatives seized upon his late report pretextually, since it provided them with their "first opportunity" specifically to discriminate against him be- cause of his prior pursuit of statutorily protected rights, raises subtle questions significantly different from those discussed in connection with Respondent's refusal to consider Geller for casual service. The dischargee, together with his fellow workers, had concededly participated in Respondent's August 11 and 12, 1975, work stoppages. His August 14 written declaration with regard to his willingness to resume work had, inter alia, been categorically rejected. In short, Mazzocco had, together with his fellows, been a member of the group toward which Respondent's demonstrable hostility had contemporaneously been directed. That management's persistently nurtured animus, previously frustrated, could finally have been focused upon Mazzocco directly follow- ing his relatively minor January 28 misstep cannot be doubted. Whether the present record, however, will pre- ponderantly sustain General Counsel's present contention that it was thus focused must now be considered. Consistent with General Counsel's position, I conclude that Mazzocco would not have been discharged, purport- edly because of tardiness, within 1 day following his reinstatement but for Respondent's statutorily proscribed 468 SUPERIOR SANITATION, INC. purpose of reprisal bottomed upon the driver's prior participation in protected concerted activity. My conclu- sion that Respondent's proffered rationale for Mazzocco's termination was essentially pretextual derives from several considerations. First: I note that Respondent's posted rule, cited as relevant herein, reflects no definitive proscription, in so many words, with respect to tardiness; rather, Respon- dent's employees were notified that their failure to "call in" when sick, or when unable to work for any other reason, would be considered causes for termination "and/or" suspension. Thus, Respondent's relevant disciplinary poli- cies with respect to mere tardiness must be deduced from the firm's practice when dealing with tardy workers, rather than from its promulgated rule. Second: The present record, particularly with respect to Respondent's policy and practice when dealing with tardy workers, reveals, in my view, persistent managerial capri- ciousness, bottomed upon some notably flexible standards which varied with the firm's need for personnel and the ready availability or scarcity of job applicants. General Counsel's representatives and Respondent's counsel have herein stipulated that within some periods of time both "before and after August 11, 1975," never defined precisely for the record, nine employees were terminated for repeat- ed tardiness. Within the same, never-defined period, 16 workers were terminated directly following their first "failure to call in and/or report for work" without any indication whether they had been merely tardy or had failed to report completely. With respect to five more workers, counsel have stipulated that one, Johnson, was merely suspended for a first tardiness; that another, Slaugh- ter, was suspended for 3 days following a failure to call in and report; that two, Jobson and Yates, were terminated following their first tardiness; and that employee Southern was suspended for a first offense and terminated following a second. These various suspensions and discharges, in my view, hardly reflect consistency. General Counsel's several witnesses have testified credi- bly and without persuasive contradiction that, together with some of their designated fellow workers, they have frequently reported late for work, following Respondent's designated 8 a.m. clock-in time. Often, despite their late reports, they have neither been warned nor reprimanded. Sometimes they have been sent home for the day; clearly, they were then suspended. On other occasions, however, some of them have been, despite their late reports, transported to trash collection trucks in service, which had previously been dispatched without regular two-man crews. Employee Rose, whose testimony I credit in this connec- tion, recalled specifically that before August 11, 1975, the firm's policy with regard to both tardiness and failures to call in when unable to work involved warnings for first offenses, followed by suspensions, and finally discharges; the mechanic declared, however, that no such policy of progressive discipline had been routinely enforced. The record further warrants determinations, which I make, that Respondent's workers have sometimes "made jokes" re- garding chronic or frequent latecomers; that General Manager Kondrup has participated sometimes in such badinage; and that some workers, though chivvied when tardy, have never been formally warned regarding their possible suspension or discharge. In their brief, General Counsel's representatives suggest that: This testimony establishes without doubt that the Employer practice regarding tardiness prior to August 11, 1975, was not as Jim Frank allegedly described it to Mazzocco on January 27, 1975, that if the trucks were gone, that is it, you're fired. Rather, the Employer's practice was to completely forgive continued tardiness and to transport those who were on occasion too late to catch the trucks out to the job in the service pickup, unless by chance the Respondent was in a position to send an employee home for the day. These suggestions, in my view, derive from record testimo- ny worthy of credence; I find them persuasive. Thus, Respondent's policies and practice with regard to tardi- ness, particularly before August 11, 1975, would not, I find, have dictated Mazzocco's discharge. Had the driver-loader really reported for work 15 minutes late, after Respon- dent's trucks had gone, as President Frank testified, the firm's practice even then would not have dictated his termination, in my view. At most the record warrants a determination, which I make, that he would have been suspended by merely being sent home for the day. Third: Respondent's strict treatment of Mazzocco does comport with Vice President Frank's August 12, 1975, pronouncement, herein found motivated by statutorily proscribed considerations, that Respondent's rules would thenceforth be strictly enforced. However, the present record, considered in totality, will support a determination, which I make, that Respondent's management representa- tives have, particularly since January 27, 1976, generally continued their capriciously flexible disciplinary policy with respect to tardiness. On January 28, before Mazzocco was discharged, Kondrup had permitted another worker who had reported late moments before the discharge to "get right on" his designated truck. Employee Rose testified, without specific contradiction, that one morning, in the 9-day period which followed January 27, he noted two employees who had reported for work between 5 and 10 minutes late; both were permitted to punch in, and were ferried in Respondent's service truck to join a trash collection vehicle which had previously been dispatched. Consistent with Rose's testimony, Harold Thompson, currently in Respondent's hire, reported that following one occasion, when he reported slightly late because of bad weather without having called in previously, some compa- ny spokesman had "made [it] clear" that workers who continually reported late without calling in would be given about "two or three" chances; the driver, however, was neither discharged forthwith, nor threatened with termina- tion. While a witness, Thompson further designated two fellow workers who had told him, before they were terminated, that they had been merely warned or suspend- ed for several previous failures to report, or late reports. Since Thompson's testimony in this connection, however, merely recapitulated hearsay, no factual findings consistent therewith have been considered warranted herein. With matters in this posture, there can be no doubt that Respondent's management currently maintains a capri- 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciously flexible disciplinary policy, particularly with regard to tardiness. I so find. Fourth: Despite his firm's patently flexible policy throughout the period with which we are concerned Respondent's president reacted to Mazzocco's relatively slight January 27 tardiness with Draconian rigor. The driver-loader's late report, viewed in context, could hardly have been reasonably considered a serious dereliction. He had reported for work, so I have found, less than 5 minutes late. His tardiness had not yet generated difficulties for Respondent's management; some trash collection trucks scheduled for dispatch were still in Respondent's yard. Mazzocco's proffered "explanation" for his late report, namely, that his former wife had earlier that morning been late when calling for their child had, so I have found, satisfied Respondent's general manager; Kondrup had told him he could load that day. Respondent makes no contention herein that Mazzocco had, during his prior period of service before the August 11, 1975, work stoppage, been habitually tardy. He had previously report- ed late only twice; his reason for both prior late reports had been the same. He had neither been warned nor disci- plined. On both occasions he had been given regular work assignments. Kondrup's January 28 reaction, therefore, had matched his previously manifested forbearance. Nev- ertheless, Mazzocco was summarily discharged by Respon- dent's president directly thereafter, before he could punch his timecard. This, despite the fact that two other workers, Tim Baker and Burl Ridge, were permitted to "clock in" that day, at 4.8 minutes after 8 o'clock and 13.2 minutes after 9 o'clock, respectively. Upon this record, there can be no doubt that Respon- dent's president seized upon Mazzocco's very first cogniza- ble misstep, following his reinstatement, purportedly to justify his termination forthwith. Further, with due consid- eration for the driver-loader's relatively "clean" record in regard to tardiness, Respondent's prior tolerance demon- strated when Mazzocco had long before reported late for a clearly nonculpable reason; and the driver-loader's reli- ance upon the same justification for his most recent tardiness, determination seems clearly warranted that President Frank's professed rationale for Mazzocco's dis- charge was pretextual. Compare Master Slack and/or Master Trousers Corp., et al., 230 NLRB 1C54-55, fns. 6 and 7 (1977). Since Frank's proffered reason for the driver- loader's termination cannot withstand scrutiny, particular- ly in view of Respondent's patently capricious disciplinary policy with respect to tardy workers, his "true motive" may properly be deduced from his conduct's circumstantial context. Shattuck Denn Mining Corp. v. N.L.R.B., supra. The present record will fully support a determination, in my view, that President Frank's discharge decision derived, wholly or partially, from a purpose of reprisal, fortuitously realizable so far as Mazzocco was concerned, because of his prior participation in statutorily protected activity. d. Robert McKellip The record herein, in my view, preponderantly warrants a determination, which I make, that Respondent's manage- ment violated Section 8(a)(1) and (3) of the statute when employee McKellip was terminated. The firm's stated reason for the driver's release, namely, that he could not when reinstated produce a state-required "Class B" driver's license qualifying him to drive Respondent's trash collec- tion trucks, merits characterization as pretextual. Though McKellip, directly following his reinstatement, could not indeed produce the designated driver's license when re- quested, I am satisfied that but for Respondent's persistent- ly husbanded purpose of reprisal, generated by McKellip's prior participation in both of the August 1975 work stoppages previously noted, the latter would not have been dismissed forthwith. Respondent's purported reliance upon the driver's conceded failure to satisfy a state-mandated license requirement, I find, merely reflects the determina- tion of management representatives to cloak their statutori- ly proscribed motivation with some superficial plausibility. McKellip's several "off and on" periods of service with Respondent dated back to 1965. Prior to 1971, however, he had merely done loader's work. Between 1971 and August 11, 1975, he had served as Respondent's driver with regular tenure. In their brief, General Counsel's representatives note, with record support, that this service record had made McKellip a significantly "long-term" worker, so far as Respondent was concerned. And, so far as the record shows, McKellip's service as Respondent's driver between 1971 and August I1, 1975, particularly, during which period he had driven trash collection trucks with valid "chauffeur's" licenses which then qualified him to handle Respondent's vehicles, had been completely satisfactory. Respondent's management representatives herein have proffered no contrary contention. When reinstated, so I have found, McKellip had been given loader's work initially. Directly following his first day's service he had notified Respondent's general manag- er that he then held merely a current "Class C" driver's license. He had nevertheless been reassured that his situation would be "squared away" with a certification letter. Previously herein, General Manager Kondrup's contrary testimony has been rejected. While a witness, Kondrup had merely suggested, without making a clear-cut testimonial statement, that McKellip had been given driving assignments. The general manager's suggestion that he had done driver's work, when contrasted with McKel- lip's positive testimony that he had done loader's work, carries no persuasion. Further, Kondrup's present testimo- nial claim that Respondent's reinstated worker, though fully cognizant with regard to his "Class C" license's inadequacy, had said nothing before their January 28 license check confrontation strains credulity. McKellip's contrary testimony has been herein credited. And, having concluded that McKellip had voluntarily reported his license problem previously, I have found the reinstated worker's further testimony that Respondent's general manager had promised him a solution through "certifica- tion letter" procedures credible because of its consistency with logical probabilities. While a witness, Kondrup con- ceded that routinely drivers who desired certification letters merely had to request them. McKellip, I find, had done so; he knew that he would need one. Consistent with his previously proffered reassurances, Respondent's gener- al manager, when subsequently shown McKellip's relative- ly new but less than sufficient document during his January 470 SUPERIOR SANITATION, INC. 28 license check, would hardly have felt constrained to respond with critical comment. I have found that he volunteered none. Clearly, Kondrup at least did not then consider the reinstated driver's regular "Class C" license a sufficient justification for his out-of-hand dismissal. Nevertheless, when Respondent's president and Dave Frank became cognizant thereafter with respect to McKel- lip's situation, the firm's position hardened. Despite the reinstated driver's reiterated request during his final con- ference with Respondent's management representatives for a certification letter, or, alternatively, for permission to borrow a company truck with which he could take a qualifying driver's test, he was told brusquely that they did not feel "obligated" to provide either requested accommo- dation. He was discharged though other drivers without "Class B" licenses had been told by General Manager Kondrup that they would have "thirty days" in which to procure them. Kondrup's testimony that he would not have given McKellip a January 29 certification letter because the latter might conceivably have "jeopardized" the firm by damaging someone's property, during his prior 2-day period of service following reinstatement, reflects contriv- ance, in my view. McKellip, so I have found, had done no driving during this period. However, assuming, arguendo, that he might have then driven a trash collection truck, Kondrup's fanciful suggestion that he "might have" dam- aged someone's property while so engaged, unbeknownst to Respondent's management, merely reflects the general manager's post hoc speculation; such speculative consider- ations, in my view, could not have provided a persuasive rationale for the firm's discharge decision, particularly since Respondent's management representatives have prof- fered no testimonial demonstration that McKellip's Janu- ary 29 termination would have relieved them retrospective- ly from "possible" liabilities because of damage claims. Further, in their brief, General Counsel's representatives note cogently that Kondrup's refusal to provide McKellip with a certification letter, purportedly because he might have "jeopardized" the firm, rings hollowly herein, particu- larly in view of employee Mazzocco's credible, undenied testimony: (1) that - between late May or June 1, 1975, and the first August Ii work stoppage he had driven company "tandem-axle" trucks without a current "Class B" license with Kondrup's knowledge; and (2) that despite his unremedied license deficiency Kondrup had told him he would be given driving assignments following his January 27, 1976, reinstatement. In this connection, I note further that when this case was heard, McKellip was back working in Respondent's hire. The record shows that he had sought work with the firm, and that he had been hired as a strike replacement during the August-September 1976 work stoppage previously noted. When he was rehired, Respondent's management representatives had knowingly permitted him (McKellip) to drive "constantly" for nearly a month, still without a proper "Class B" license which he had never been able to procure, before he was, following persistent demands, given the certification letter which he had previously been promised when reemployed so that he could procure the required document. Clearly, Respondent's disposition with respect to hiring, retaining, and utilizing drivers without proper state-mandated license qualifications varied with circumstances. When they found McKellip's services nec- essary or helpful, the firm's management representatives were clearly prepared to disregard, for the moment, his less than sufficient documentation. And, when President Frank finally decided sometime later that McKellip should procure his "Class B" license, the fact that he (McKellip) might have previously "jeopardized" Respondent's finan- cial status while driving for "almost a month" without a proper license clearly did not preclude a managerial decision to provide him with a certification letter forthwith. President Frank's testimony that he finally requested General Manager Kondrup to certify McKellip, rather than discharge him for lack of a license following his September 1976 rehire, persuasively suggests that Respon- dent's management could have pursued a similar course following the driver's January 27, 1976, reinstatement. Frank's claim that he finally directed the driver's certifica- tion, rather than his discharge, merely because Respondent feared further unfair labor practice charges strains creduli- ty; such testimony, whether believed or disbelieved, reflects a tacit concession that McKellip could have been given a certification letter without compromising Respondent's management directly following his January 27 rehire. I so find. Since Respondent's management representatives, then, have provided no persuasive rationale which will withstand scrutiny for their conceded January 1976 refusal to certify McKellip's presumptive "Class B" license qualifi- cations, determination seems clearly warranted that man- agement's "true motive" for his January 29 discharge derived from a purpose of retaliation for his prior partici- pation in union and protected concerted activities. I so find. e. David Rose, Sr., and Johnnie Slaughter Previously in this Decision I have, despite General Counsel's contrary contention, found employee Rose's testimony insufficiently reliable, probative, and substantial to sustain determinations that he, together with driver Slaughter, had been discharged. Having found, however, that Geller, Mazzocco, and McKellip had previously, been discriminatorily denied reinstatement or terminated, I have reconsidered General Counsel's contentions with respect to Rose and Slaughter particularly. Upon such reconsider- ation, my conclusions stand. General Counsel's representa- tives, in my view, have not preponderantly demonstrated that Respondent's mechanic and driver were specifically or constructively discharged because of statutorily proscribed considerations. In their brief, General Counsel's representatives substan- tially contend that long before Rose's reinstatement Re- spondent's management representatives had demonstrated their "animus" toward him; that their hostility had been further manifested following the mechanic's reinstatement; that Dave Frank's testimony detailing the circumstances which precipitated Rose's departure should be considered "incredible" simply because of his testimony's failure to comport with reasonable probabilities; and that Rose's version, therefore, should be considered worthy of cre- dence. Consistent therewith, General Counsel's representa- 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives seek determinations herein that Vice President Frank demanded Rose's signature on Respondent's SSEF payroll deduction form; that Rose protested and withheld his compliance; and that Respondent's vice president there- upon seized on the mechanic's refusal, pretextually, to justify his discharge. With respect to Slaughter's discharge, General Counsel's representatives likewise contend that testimonial proffers by General Manager Kondrup should be considered "improbable" in their record context; and further that: Given the fact that both were discharged and did not quit, it is equally clear that there was no known company rule regarding signing [SSEF forms], at least prior to August 11, 1975. It is admitted there were no prior discharges for refusal to sign SSEF authoriza- tions. And, the record clearly establishes that SSEF deductions were made whether or not the forms were signed by employees. Respondent's requirement that Rose and Slaughter sign authorizations was clearly in retaliation for their exercise of their protected concert- ed rights and was clearly an unprivileged basis for discharge. For several reasons, some of which have been noted previously in this decision, I find General Counsel's contentions thus presented less than persuasive. Without determining necessarily that Respondent's several wit- nesses merit full faith and credit, I conclude that General Counsel's representatives herein particularly with regard to Rose's and Slaughter's terminations, have failed to sustain their burden. My doubts with regard to Rose's testimony, bottomed upon his witness chair demeanor plus cited record testimo- ny which, in my view, persuasively suggests his disposition to react testily in stress situations, have been noted. Thus, particularly since the mechanic's proffered recollections with respect to his and Slaughter's terminations stand herein without corroboration, I cannot conclude with confident finality that Respondent's vice president really demanded his signature or Slaughter's for a payroll deduc- tion authorization upon pain of discharge for a refusal. As General Counsel's representatives note, Respondent had no "known" company rule which required such form signatures. And neither General Counsel's representatives nor Respondent's counsel have suggested that "written" and "signed" payroll deduction authorizations were, dur- ing the period with which this case is concerned, required by state law. I note officially that Colorado's Revised Statutes, particularly with respect to wage assignments (specifically secs. 8-9-101 to 8-9-107 inclusive), provide, in relevant part, that no wage assignment "by any employee to any person for the benefit of such employee" shall be valid or enforceable. Wage assignments "for any purpose" cannot be recognized or honored save in written form. They provide further, however, that nothing contained in the statutory provisions noted "shall be construed to affect deductions authorized by an employee to be made by an employer for ... insurance ... or other similar purposes' when such authorizations are revocable. Respondent's management representatives, therefore, were subject to no self-imposed or state-imposed compulsion to require work- ers' signatures. So far as the record shows, they had never previously done so. Several workers testified that when they did sign forms pursuant to request, they had not considered Respondent's requests mandatory. And, as General Counsel's representatives have noted, the present record shows that before January 27, 1976, particularly, and likewise since that date, deductions for SSEF fund purposes have been made whether or not the workers affected had previously signed proffered forms. Nothing in the present record, therefore, would warrant a determina- tion that Vice President Frank felt constrained to demand Rose's or Slaughter's signatures. If General Counsel's representatives contend, despite their failure to articulate such a contention clearly, that Vice President Frank did present Respondent's mechanic and driver with unnecessary categorical demands, deliber- ately and misleadingly calculated to generate some pretex- tual justification for discharges should Slaughter and Rose respond negatively, such a contention would merit rejec- tion. Factual conclusions consistent therewith would neces- sarily have to rest merely upon speculation. Nothing in the present record suggests persuasively that Respondent's management could have confidently foreseen negative responses; thus, Vice President Frank's two ploys, if they were ploys, could have failed. I consider it less than likely that company representatives, if they were seeking to generate a pretext for discharge, would have pursued a course with respect to which success could not have been reliably predicted. Further, had Respondent's management representatives really been planning to generate a pretext calculated to justify discharges, their pretext could more plausibly have been generated either directlyfollowing the firm's January 27 reinstatements, or concurrently with its first payday thereafter. Vice President Frank, however, waited 9 days before Rose's and Slaughter's signatures were requested. His delay, in my view, significantly undercuts General Counsel's contention herein that Rose and Slaugh- ter were pretextually and unnecessarily required to sign SSEF forms pursuant to a stratagem contrived "clearly in retaliation for their exercise of their protected concerted rights" with consequentially unprivileged discharges fol- lowing their refusal. f. Threats to Thompson With respect to President Frank's confrontation with Respondent's striking driver, Thompson, while he (Thomp- son) was performing "roving" picket duty, little need be said. In his complaint, General Counsel charges that Respon- dent's president threatened his firm's striking worker with severe bodily harm. The record, however, provides no persuasive support for such a determination. According to Thompson, Respondent's president merely mentioned a speculative "possibility" that he might get hurt while following the firm's trucks. In its context, I find, Frank's remark could not reasonably have been considered a threat. During cross-examination, Thompson conceded that while they were conversing Respondent's president had mentioned "fights" which had previously taken place between union supporters and Respondent's nonunion workers, while declaring that he did not want such fights 472 SUPERIOR SANITATION, INC. generated again. Thus, considered in totality, Frank's comments, in my view, were merely calculated to convey his conviction that strike-related physical confrontations, though possible, would be regrettable, and that Respon- dent's representatives would not, so far as he was con- cerned, provoke them. Thompson, so his testimony shows, did react nevertheless with a sarcastic comment calculated to suggest his personal fear that Respondent might deliber- ately seek to harm him. Concededly, however, the striking driver's suggested fear, assuming, arguendo, that he may really have been fearful, derived merely from some specu- lative extrapolation. Reasonably construed, Frank's com- ment, in my view, possessed no critical "tendency" calcu- lated to generate apprehension. General Counsel contends further that Respondent's president threatened his firm's striking worker with dis- charge because of his union activities. This contention likewise merits rejection for lack of adequate record support. According to Thompson, Frank merely suggested that he, together with his fellow "ambulatory" picket, should "give it up and leave [Respondent] alone" since no strike settlement likely to permit their resumption of work could be expected shortly. This, in my view, constituted no threat of discharge. Respondent's president did not declare that Thompson and Branton would be denied reinstate- ment following a possible future strike settlement; he merely noted his belief that Complainant Union's strike had thus far failed, and that no settlement pursuant to which work might be resumed could, as of the date of their conversation, be foreseen. Thompson's testimony, however, will support a determi- nation that during their confrontation Respondent's presi- dent threatened him with arrest. Further, the record will support a determination, which I make, that when a Colorado Springs policeman or policemen finally reached the scene of their confrontation pursuant to Frank's call, the latter specifically requested Thompson's detention "for harassment and for interfering" with Respondent's non- striking driver. Though not specifically charged as violative of the statute, President Frank's threat, together with his consequent course of conduct directed toward that threat's consummation, were fully litigated. Within their context, I find, they constituted statutorily impermissible "interfer- ence, restraint and coercion" which should call for Board proscription. Compare Scott Hudgens, 230 NLRB 414, 415, 417 (1977), in this connection. The fact, if it is a fact, that President Frank may conceivably have been motivated by some "good faith" belief that Thompson and Branton had been participating in statutorily proscribed "secondary boycott" picketing provides Respondent with no defense, since the record herein fails to reflect misconduct properly chargeable to them. Consequently, N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964), would mandate such a defense's rejection. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above, occurring in connection with Respondent's business operations set forth in section I, above, have a close, intimate, and substantial relationship 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. In view of these findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Superior Sanitation, Inc., is an employ- er within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Local No. 146, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which has admitted certain employees of Superior Sanitation, Inc., to membership. 3. Respondent's management representatives, when they terminated James Mazzocco and Robert McKellip because of their prior participation in union activity or other concerted activity for mutual aid and protection, and when they rejected Bruce Geller's request that he be considered a qualified candidate for casual part-time work thereafter, discriminated against them with respect to their hire and tenure of employment and, further, interfered with, restrained, and coerced Respondent's employees generally with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent engaged, and continues to engage, in unfair labor practices affecting commerce within the meaning of Section 8(aXl) and (3) and Section 2(6) and (7) of the Act, as amended. 4. Respondent's president, when he threatened Harold Thompson with possible arrest and proceeded to call the police because of Thompson's participation in union activities, or certain other lawful concerted activity for mutual aid and protection, further interfered with, re- strained, and coerced Respondent's employees with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent engaged, and continues to engage, in unfair labor practices affecting commerce within the meaning of Section 8(aX1) and Section 2(6) and (7) of the Act, as amended. 5. General Counsel has not produced herein reliable, probative, or substantial evidence sufficient to justify a determination that David Rose, Sr., and Johnnie Slaughter were terminated under circumstances which constituted unfair labor practices affecting commerce within the meaning of Section 8(aX)( 1) and (3) of the Act, as amended. REMEDY Since I have found that Respondent has committed, and has thus far failed to remedy, certain specific unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action, including the posting of appro- priate notices, designed to effectuate the policies of the Act, as amended. Specifically, since I have found that Section 8(aXl) and (3) of the statute were violated when Respondent's man- agement representatives discriminatorily terminated James 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mazzocco and Robert McKellip, and refused to consider Bruce Geller available for future part-time work, for statutorily proscribed reasons, I shall recommend that Respondent be required to offer these employees immedi- ate and full reinstatement to their former positions unless they have already been rehired or reinstated. Should their former positions no longer exist, they should be reinstated to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. In Geller's case, reinstatement will require his immediate restoration to Respondent's employee roster subject to those terms and conditions which governed his employment prior to Re- spondent's August 11 and 12, 1975, work stoppages. This will require Respondent to provide him with full-time work during summer months, and regular, nondiscriminatory consideration for casual part-time work during his fall, winter, and spring school terms. Respondent should further be required to make these designated workers whole for any pay losses which they may have suffered by reason of the discrimination practiced against them, by paying each of them sums of money equal to the amounts which they normally would have earned as wages, from the dates on which they were terminated or denied reinstatement to the date or dates when Respondent offered or hereafter offers them reinstatement, respectively, less their net earnings during the period designated. Backpay due for each of them should be computed by calendar quarters, pursuant to the formula which the Board now uses. F. W. Woolworth Company, 90 NLRB 289 (1950). Interest thereon should likewise be paid, computed at 7 percent per year. See Florida Steel Corporation, 231 NLRB 651 (1977), in this connection. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent, Superior Sanitation, Inc., Colorado Springs, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, and refusing to reemploy workmen, or discriminating in any other manner with regard to their hire or tenure of employment or the terms and conditions of their employment, because they may have designated Local No. 146, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, as their represen- tative for collective-bargaining purposes, or because of their participation in concerted activity for the purpose of collective bargaining or other mutual aid or protection. (b) Threatening employees with possible arrest, or seeking to have them arrested, because of their participa- t In the event no exceptions are filed as provided by Sect. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sect. 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. tion in statutorily protected union activities or concerted activity for the purpose of collective bargaining or other mutual aid or protection. (c) Interfering with, restraining, or coercing employees in any other manner with respect to their exercise of rights which Section 7 of the statute guarantees. 2. Take the following affirmative action which will effectuate the policies of the Act, as amended: (a) Offer James Mazzocco and Robert McKellip immedi- ate and full reinstatement to their former positions, if they have not already been reinstated, dismissing, if necessary, any employees hired to replace them, or, if their former positions no longer exist, offer them immediate and full reinstatement to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. (b) Notify Bruce Geller, whenever he applies for casual part-time work, that he will be considered eligible, and will be rehired, without discrimination, for whatever available casual part-time work he may be qualified to perform; and further, whenever Geller applies for full-time work, offer him immediate reinstatement to his former full-time posi- tion, dismissing, if necessary, any employee hired to replace him, or, should his former position no longer exist, offer him reinstatement to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (c) Make whole Bruce Geller, James Mazzocco, and Robert McKellip, for any loss of pay which they may have suffered because of the discrimination practiced against them, in the manner set forth in the "Remedy" section of this Decision. (d) 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 determine the amounts of backpay due under the terms of this Order; (e) Post at its place of business in Colorado Springs, Colorado, copies of the attached notice marked "Appen- dix." 2 Copies of the notice, on forms provided by the Regional Director for Region 27, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 27, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 474