White's Gas & Appliance, Inc.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White's Gas & Appliance, Inc. and Teamsters Local No. 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 7-CA-9565 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 1, 1972, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions to the Administrative Law Judge's Decision and opposition to Respon- dent's exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in lig.1L of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge to the extent consistent herewith. 1. The Administrative Law Judge found that Respondent discriminatorily discharged Robert Car- penter because of its employees' union activity in violation of Section 8(a)(3) and (1) of the Act. In reaching this conclusion, the Administrative Law Judge found that it was Respondent's receipt on April 29, 1972, of the Union's demand for recogni- tion and its conclusion that Carpenter was responsi- ble for the Union's presence which triggered the decision to discharge him. We agree with the Administrative Law Judge's ultimate conclusion that Carpenter was unlawfully discharged, but, in doing so, we find, for the reasons stated below, that the conduct of Respondent's employees with respect to their overtime pay claims, as well as their union activity, playea a direct role in the decision to discharge Carpenter. The facts, as more fully described in the Decision of the Administrative Law Judge, show that Carpen- ter, who was a full-time employee at Fisher Body Company, was first hired by Respondent in Septem- ber or October 1967, as a part-time employee at $2.75 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3) We have carefully examined the record and find no basis for reversing her findings. 2 The record reveals, however, that there was still work for Carpenter to do at the time his employment was terminated, that Saxton and Fitzpatrick, an hour, and that until 1971 he usually worked from the fall of one year until the spring of the next. When Carpenter resumed his employment in the fall of 1971, however, he was told by Theron White, the corporate director of Respondent, that he could work through the summer because "he was fine help." The record shows that early in November 1971, employees Charles Carpenter, who is Robert's father, Larry Chick, and Marion Andrew reported Respon- dent to the Wage and Hour Division of the Labor Department for failing to pay the proper rate for overtime work. Respondent settled the overtime claims of these and other of its employees in March 1972. However, late in April 1972 it learned that one employee, Lloyd Kinney, was dissatisfied with the overtime settlement. At the same time, White observed that the employees were meeting in "little groups and huddles" which he interpreted as an effort on their part to "undermine" him. On April 21, 1972, Robert Carpenter signed an authorization card for the Charging Party and mailed it to the Union. On Friday, April 28, Carpenter did not work because of car trouble. He called White and offered to make up the work on Saturday, but White told him that there was no work to be done on Saturday that he could not do on Monday, May 1. On Saturday, April 29, Respondent received the Union's written request for recognition. On Sunday, April 30, Theron White and his wife Alice drove to Carpenter's home and informed him that he was no longer needed, as work was getting slack and they had decided to keep on one of the employees who did not have two jobs.2 When Carpenter offered to pick up his paycheck on Monday, Alice White told him she would deliver it to his home, a distance of 11 miles from the plant. On May 8, the Union filed a petition for a Board election. At the hearing on May 22 and 23, Theron White testified, when asked for the reason he laid Carpenter off, "I think everything that developed over this overtime deal. There was just that undercur- rent going around. I figured that no more work than we had, the other older help might just as well start doing it." When asked at the hearing herein whether that was his testimony, White responded, "That is correct because Lloyd [Kinney] made the remark that he would not sign that thing [the overtime settlement] and they were getting in little groups and apparently part-timers who also held jobs elsewhere and were junior to Carpenter in employment with Respondent, were hired in April 1972 and continued working through August, that Carpenter's father, a full-time employee of Respondent, took sick leave from April 23 to August 1 or 2, that Roslund, another seasonal employee, had quit earlier that month, that, after Carpenter's father went into the hospital on April 23, one of the Whites told Carpenter that employee Lawrence Smith would give him some help with the truck runs, and that Carpenter was doing his father's work when he was discharged. 202 NLRB No. 60 WHITE'S GAS & APPLIANCE, INC. 495 huddles and you'd have to go out and break it up." He said, "Well, I knew then about what the whole situation was where they were trying to undermine me in a way. . . . I didn't know what was going on around with the help because nobody would mention anything of the nature of the activities, but there was an undercurrent where you knew something was being formulated." Based on the above facts and White's admissions in his testimony, it is clear that at this point White decided that he had to forestall "the whole situation . .. to undermine me" from deteriorating further by discharging someone, and that that someone turned out to be Robert Carpenter. White's own testimony establishes that one of the reasons he decided to discharge Robert Carpenter was because he learned that the "undercurrent" was in fact related to the employees' concerted activities in pursuing their overtime pay claims. Accordingly, we find that, in discharging Robert Carpenter, Respondent was motivated, at least in part, by its employees' protected concerted activities in pursuing their overtime pay claims, and that Respondent thereby violated Section 8(a)(1) of the Act.3 We further find that Carpenter's discharge violated Section 8(a)(3). Like the Administrative Law Judge, we find that White considered the Union's demand for recognition as the last straw: In reaching this conclusion, however, we do not rely on the fact or find it necessary to determine, as she did, that White considered Carpenter primarily responsible for the union activity of its employees. While White may not have been aware that Carpenter had signed a union card on April 21, the precipitate timing and circum- stances of his discharge clearly show that, upon receipt of the Union demand for recognition on Saturday, April 29, White then knew that the "undercurrent" and "something that was being formulated" related to his employees' union activi- ties, as well as their concerted activities concerning their overtime pay claims. Therefore, we find that, in discharging Carpenter on Sunday, April 30, White was also motivated by the employees' union activity.4 Accordingly, we shall order Respondent not to discriminate against its employees for engaging in union or concerted activity, and to refrain from interfering with their exercise of any Section 7 rights. 3 See Thurston Motor Lines, Inc., 159 NLRB 1265, 1306-07, in which the Board enunciated the principle that it would be contrary to public policy to hold that the making of complaints to public authorities in the course of concerted activity removes the protection of the Act from the concerted activity. G. V.R., Inc., 201 NLRB No. 2. (Chairman Miller dissented on the ground that , in his view, there was insufficient evidence to show that the employees were acting in concert . He finds, however, that the instant case is distinguishable on its facts and that the evidence shows that the employees, in reporting their overtime pay claims to the Wage and Hour Division, were 2. The General Counsel excepts to the Adminis- trative Law Judge's recommendation that Robert Carpenter be paid no backpay from the date his father returned to work from sick leave until the date he would have returned to work in the fall of 1972. General Counsel contends that the extent of the backpay period for Carpenter should have been deferred to the compliance stage of these proceed- ings. We find merit in this contention. This issue and other possible issues bearing on the backpay period were not litigated at the hearing. In these circum- stances, and as there appears to be no reason why the backpay computation should not be handled in the usual manner, we shall leave this aspect of the case to the compliance stage of this proceeding. Accordingly, to remedy the unlawful discharge of Robert Carpenter, we shall order Respondent to make him whole for any loss of earnings he may have suffered by reason of the unlawful conduct directed against him by paying him a sum of money equal to the amount he would have earned as wages from April 30, 1972, the date of his discharge, to the date of a bona fide unconditional offer of reinstatement by Respondent, less his net earnings , F. W. Wool- worth Company, 90 NLRB 289, plus interest at the rate of 6 percent to be computed as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 3. The Administrative Law Judge recommended a narrow cease-and-desist order. We find, for the reasons stated below, that a broad order is warrant- ed. The discharge of Robert Carpenter, for the reasons and in the circumstances found herein, strikes at the heart of rights guaranteed to employees by the Act. There is reasonable ground to anticipate that Respondent will infringe upon other rights guaranteed employees by the Act, unless appropri- ately restrained by a broad order that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Accordingly, we shall order Respondent to cease and desist from in any other manner interfering with, restraining, or coercing any employee in the exercise of his right to engage in or refrain from engaging in any employee activities protected by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor acting on behalf of all employees. Indeed, when it settled the claim in March 1972, Respondent paid overtime to all those employees in the bargaining unit who were entitled to such pay (G.C. Exh. 4).) 4 In light of all the facts set out above , especially in those summarized in In. 2 hereof and the instruction to Carpenter only 2 days before his discharge that he should report to work as usual the following Monday, we agree with the Administrative Law Judge that Carpenter was not discharged for economic reasons. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, White's Gas & Appliance, Inc., Perrinton, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee to discourage employee activity in favor of Teamsters Local No. 486, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other union. (b) Discharging or otherwise discriminating against any employee because employees, in the course of concerted activity, complain to governmental agen- cies, or have interviews with any of such agencies' representatives, or take other concerted action in furtherance of their mutual aid and protection, where the subject matter of such complaints or other action involves the hours of employment, wages, or other working conditions of the employees. (c) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of his right to engage in or refrain from engaging in any employee activities protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Robert Carpenter reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in paragraph numbered 2 of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Perrinton, Michigan, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's authorized 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 said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any of you to discourage activity in favor of Teamsters Local No. 486, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other union. WE WILL NOT discharge or otherwise discrimi- nate against any of you for complaining, in the course of concerted activity, to governmental agencies, or having interviews with any of such agencies' representatives, or taking other concert- ed action for your mutual aid and protection, concerning hours of employment, wages, or other working conditions of employees. WE WILL offer full reinstatement to Robert Carpenter and make him whole for any loss of pay he may, have suffered as a result of his unlawful discharge, plus interest at the rate of 6 percent per year. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WHITE'S GAS & APPLIANCE, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. WHITE'S GAS & APPLIANCE, INC. 497 DECISION STATEMENT OF THE CASE AUs IRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at St. Johns, Michigan, on September 12, 1972. The charge was filed by the Union and served on the Respondent, June 1, 1972, and the complaint issued July 11, 1972. The only issue is whether or not the Respondent discharged Robert Carpenter on April 30, 1972, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. For the reasons given below, I find that Carpenter was discharged in violation of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by the Respondent,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a Michigan corporation engaged at Perrinton, Michigan, in the sale of propane gas and furnaces to retail and nonretail customers and in the installation and servicing of said furnaces. During the calendar year ending December 31, 1971, the Respondent received gross revenue in an amount over $349,000, and received propane gas valued in excess of $50,000 from Cities Service Company, located in the State of Michigan, which propane gas had been received by Cities Service Company directly from sources outside the State of Michigan. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent also admits and I find that Teamsters Local No. 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE A. The Evidence Presented The complaint alleges that the Respondent discharged Robert Carpenter April 30, 1972, because its employees were seeking to` be represented by the Charging Party and because they had engaged in other union and concerted activities. The Respondent contends that Carpenter is a part-time winter season employee, and that it laid him off for lack of work and will reemploy him at the advent of the next winter season. The Respondent's operations are run by its owners, Theron White, corporate director, and his wife, Alice White, president. Carpenter obtained a job as a regular full-time water test inspector at Fisher Body Company in September 1967. He was assigned to the 4:30 p.m. shift, which he still works at $4.60 an hour. Shortly after he obtained that job, in September or October 1967 Carpenter began his employ- ment at the Respondent's premises. He worked 6 hours a day for the Respondent, leaving at 2 p.m., 5 days a week. The Respondent paid Carpenter $2.75 an hour. His duties were to fill 100-pound propane gas cylinders, or bottles, deliver them by truck, and service furnaces and hot water heaters; he also painted cylinders and brought in new accounts. Carpenter has always worked for the Respondent from fall until spring, when he would inform White that he would "call it a season" because the overtime was becoming too heavy at Fisher Body. In 1971, Carpenter called it a season the first of January when he found himself working 10-13 hours at Fisher Body. In 1970, and the years before that, Carpenter called it a season in February or March. Carpenter testified without dispute that when he report- ed for duty at White's in the fall of 1971, Theron White asked him how long he could work that season, and Carpenter replied that he would work as long as White needed him, even through the summer; and White "smiled and said okay." Carpenter testified he made that statement because the Fisher plant would not have much overtime that winter season because it was approaching the end of a model run as it did every 3 or 4 years and would not be producing as many of the old bodies. On April 21, 1972, Carpenter signed an authorization card for the Charging Party and mailed it directly to the Union. On April 29, Theron White received a letter from the Charging Party demanding recognition as the bargain- ing representative of the Respondent's drivers, installers, helpers, and service mechanics. Carpenter was laid off, or terminated, on April 30. The Charging Party filed a petition on May 8, 1972, for a Board election (Case 7-RC-11198), and a hearing was held on the petition May 22 and 23, 1972, at which Theron White testified, as discussed below. Subsequently, the Charging Party won the election and was certified. Carpenters' father, Charles, did the same work for the Respondent as Carpenter, on a full-time year-round basis. On April 23, 1972, Charles Carpenter entered the hospital for an operation which his doctor had advised would require his being away from work until August. Carpenter testified that he and his father decided that Carpenter would take over the father's work and when the Whites were advised they told Carpenter that Lawrence Smith, a bulk-tank truckdriver, would help him with the runs. For this reason, Carpenter testified, he expected to work for the Respondent until his father returned. Theron White testified that the Whites suggested that Charles Carpenter have the operation then, as it was the best time of the year to have it done. He explained that bulk deliveries were "all caught up," and the Respondent's need for bulk drivers dropped from four to one or two in the spring of the year. Theron White could not recall that Carpenter mentioned taking over part of his father's route. Regarding his separation, Carpenter testified as follows: He worked for the Respondent the week of April 24, 1 No brief has been received from the General Counsel or the Charging Party. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picking up part of his father's route while Smith picked up the rest, until Friday, April 28, when he did not go to work because of car trouble. He telephoned White to this effect about 10 or 11 a.m. on Friday, and told Theron White he would come in Saturday to make up the work missed. But White replied it would not be necessary as there was no work to be done on Saturday that he could not do on Monday. Carpenter said then he would see Theron White on Monday and White replied, "Okay, thank you." Carpenter's car was fixed by 11:30 a.m. and he went home. He spent the afternoon at home until he went to work at Fisher Body. His wife spent the evening at home. The following Sunday evening, April 30, Theron and Alice White drove to Carpenter's home, and told him he need not come in on Monday, work was getting slack, and it was better to lay off Carpenter than one of the men who did not have two fobs. 'Carpenter asked who would take his place, and they said Marion Andrew, a full-time employee, would do so. Carpenter indicated he would pick up his check on Monday, but Alice White said she would bring his check to his home (a distance of 11 miles from the plant). Carpenter did not tell the Whites he had wanted to quit or be laid off. Although he did tell them he was expecting the layoff because of the arrival of warmer weather, he actually was surprised because he expected to work until his father's return in August. Carpenter told the Whites to call him whenever they needed him, and they said they would do that. At the hearing in this proceeding, Theron White testified as follows: When Carpenter came back to work in the fall of 1971, White did not plan to work him through the summer of 1972, although White would have done so if he had needed Carpenter. On April 30, 1972, White had no knowledge of any union activity by Carpenter. All during the week of April 24, he and Alice White had discussed whether to keep Carpenter any longer. They decided to lay him off because it was the time of the year when there was not enough work to go around, and if they did not lay him off, they would have had to lay off one of their older bulk drivers, one of whom they asked to take over cylinder deliveries. They tried to approach Carpenter three different times on the matter, but he did not come to work Thursday, April 27, or Friday, April 28. White remem- bered no phone call from Carpenter on Friday that his car had broken down. The Whites went to his home on Friday evening at about 7 p.m., and again on Saturday. They finally found him at home Sunday evening, April 30. They then informed Carpenter they would not need him any longer because work was scarce. Carpenter was pleased that he did not have to work any longer and said that he had been wanting to quit, and his wife said she had also been wanting him to quit, but he had stayed longer than he had planned only because his father was in the hospital. Theron White was then questioned intensively about his testimony on this matter at the representation case hearing. The Regional Director's Decision and Direction of 2 Because of the pendency of the instant proceeding , the Regional Director did not decide the issue but permitted Carpenter to vote subject to challenge Election in that proceeding states that the Employer maintained that Carpenter was discharged April 30, 1972, and would not be reinstated, and was therefore ineligible to vote.2 White admitted he testified in that proceeding that although Carpenter was a good employee, as good as any White had, White did not plan to recall Carpenter when he let him go April 30. He laid Carpenter off because there was an "undercurrent" among the employees and he knew "something was being formulated." He explained that the "undercurrent" had started when employee Larry Chick negligently burned down the Respondent's office in the summer of 1971 and the insurance company forbade continuing him on the payroll. Chick, Charles Carpenter, and employee Marion Andrew had thereafter gone to Lansing "one at a time" and reported White to the wage and hour division of the Labor Department for failing to pay the proper rate for overtime work, although none of the employees had come to White with this problem. White settled with the wage and hour division in March. Later, about the time of Carpenter's layoff, White heard that employee Lloyd Kinney had said to someone, back in January, before White ever knew what the settlement proposal would be, that he would not sign the settlement. White's secretary had also informed him, about a week before this, that one of his oldest employees , unnamed, had remarked to someone else, with respect to White's having rehired one Carl.Verstaen the preceding November, that if White had the kind of money to waste on rehiring such a man, the employee was going to start coming to work earlier every morning and waste an hour a day to get some of that money. White knew then that the employees were "trying to undermine me." White affirmed that when asked again, at the representa- tion case hearing, for the reason he laid Carpenter off, he had responded, "I think everything that developed over this overtime deal. There was just that undercurrent going around, I figured that no more work than we had the older help might just as well start doing it." He also testified that the employees "were getting in little groups and huddles and talking," and White "would have to go out and break it up." When he had been asked whether the "undercur- rent" had something to do with the Union, and whether White knew or suspected that Carpenter was playing a part in it, he had replied that he "had no way of knowing what was going on," and did not necessarily feel that getting rid of Carpenter would result in less discord; although he "knew it was somebody," he did not know "where to put his finger." He knew that there was something going on and "the work was little slack, and it could be carried on sufficiently with the older employees . It was more logical to keep them to work than it was to have Robert [Carpenter] when he had only been there a short time." Carpenter testified that when he was terminated, April 30, there was still work for him to do, delivering cylinders to customers, and bringing back surplus cylinders, and checking, repairing, and storing them for the summer. At the time of Carpenter's separation, there were six drivers on the payroll including Carpenter. As indicated, Carpenter's father had left for the hospital April 23. Carpenter testified that K. F. Roslund, another seasonal WHITE'S GAS & APPLIANCE, INC. 499 driver who had taken over Carpenter's work when he had quit in January of the previous year, had quit in early April. Two other employees, Saxton and Fitzpatrick, who, Carpenter testified, delivered propane gas to the Respon- dent's premises for another company and helped White's drivers fill and load cylinders while the tanks filled, had been added to the payroll that month, apparently on a part-time basis. After Carpenter's termination, driver R.W. Andrew left in June. The Respondent's payroll records show the following gross earnings of its production employees for the months of April through July 1972: B. Findings and Conclusions The Respondent admitted in its answer to the complaint that Carpenter was discharged. The Respondent's counsel conceded at the hearing herein and in its brief, as Theron White admitted on the stand, that White testified at the representation case hearing that Carpenter was permanent- ly discharged April 30. In these circumstances, and as I find Theron White an incredible witness based on his demeanor and on his admitted tailoring of his testimony to suit his different objectives in two different Board proceedings, I discredit him generally, and find without merit the contention of the Respondent's counsel in his 4/30 5/31 6/30 7/31 R. W. Andrew 401.25 543.38 278.25 0 M. A. Andrew 491.62 643.51 474.76 609.39 R. Carpenter 292.88 46.75 0 0 C. Carpenter 453.75 0 0 0 L. W. Kinney 573.22 671.94 531.79 678.48 K. F. Roslund 160.88 0 0 0 L. D. Smith 414.00 443.25 327.75 534.76 C. A. Verstaen 438.38 294.75 256.50 186.75 R. E. Saxton 60.00 228.75 159.75 72.00 J. J. Fitzpatrick 36.00 230.25 147.00 63.00 Total 3321.98 3102.58 2175.80 2142.38 Average 332.19 387.82 310.83 357.05 brief that I should believe White's assertions on the stand that he merely laid Carpenter off April 30. I therefore conclude that Carpenter was discharged. As to the reason for the discharge, I discredit Theron White's statements to the effect that there was not enough work and he felt that employees with more seniority or those without two jobs, instead of Carpenter, should do it, for the same reasons given above and because, as discussed below, there was enough work and yet White fired Carpenter and retained Saxton and Fitzpatrick who had less seniority and two jobs. It is apparent from Theron White's testimony at the representation case hearing, as explained and expounded on the stand here, that he had deeply resented the conduct of his employees in connection with their reimbursement for overtime worked, and that he somehow focused his resentment on Robert Carpenter, even though the record shows that Carpenter was not reimbursed for overtime. In my opinion, however, this played only an indirect role in the decision to fire Carpenter. Thus, White had known about the overtime claims since November 1971, when the wage and hour division first contacted him, and had paid out the overtime owed his employees in March 1972, and yet he thereafter permitted Carpenter to work longer in the spring than he ever had before. According to Carpenter, whom I credit on the basis of demeanor, consistency, and the inherent probabilities as to the events which occurred, White thereafter told Carpenter he could work through the summer in his father's place and Smith would take the runs Carpenter could not take. Moreover, White put this plan into effect on April 24. Although White was upset by the gossip he heard during the week of Carpenter's discharge about employee remarks in connection with the overtime pay, and blamed Carpenter, White nevertheless indicated to Carpenter, on Friday, April 28, over the telephone, that he was expecting Carpenter to come to work Monday, May 1, as usual. It therefore was something which occurred between Friday and Sunday which precipitated the decision to fire Carpenter. The occurrence was, I find, White's receipt on Saturday, April 29, of the Union's 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demand for recognition. Although Carpenter' s union activity was minimal and there is no direct evidence that the Respondent was aware of it, it is plain that White, having admittedly attributed his overtime pay troubles to Carpenter, similarly attributed the advent of the Union to him. Why else would Theron and Alice White speed to Carpenter's home on Sunday to discharge him instead of waiting for him to show up at the plant early Monday morning? Indeed, they were suddenly so anxious for Carpenter not to appear at the plant and associate with the other employees again that they instructed him not to even pick up his check, as Alice White would drive the distance of 11 miles to deliver the check to his home. In these circumstances, and in view of White's admitted view that employees' complaining, congregating, and "formulating" created an "undercurrent" which "undermined" him, and his evasive testimony regarding the Union, I find that the Whites considered the advent of the Union as the last straw and determined to nd themselves of the man they thought was behind it. Accordingly, I find that it was the Whites' receipt on April 29 of the Union demand for recognition and their conclusion that Carpenter was responsible which triggered their decision to discharge him. I therefore conclude, based on the above considerations and the-entire record, that the Respondent discriminatorily discharged Robert Carpenter on April 30 because of its employees' union activity, in violation of Section 8(a)(3) and (1) of the Act. REMEDY The Respondent contends that Carpenter is only a winter season employee, there ww., no work for him to do during the summer months, he has now been reemployed for the 1972-73 winter season, and therefore no reinstate- ment or backpay order is appropriate. I find no merit in these contentions. I have found above that the Respondent would have employed Robert Carpenter until his father returned to work, which the record shows he did on August 1 or 2. As Charles Carpenter was a full-time year-round employee, it is clear that the Respondent would have so employed him during the months of May through July 1972 had he been able to work. I find therefore that the Respondent would have employed Robert Carpenter in Charles Carpenter's place during that period, for the 30 hours a week Robert Carpenter usually worked. Moreover, the gross earnings of the employees who were on the payroll during that period, set forth above, support this conclusion. Thus, in both May and June, the two new employees Saxton and Fitzpatrick together earned more than Robert Carpenter had earned in April; and in July, the excess earnings of the employees on the payroll over what they had earned in April totaled more than Robert Carpenter's April earnings. I therefore recommend that Robert Carpenter be reimbursed for the earnings he would have received from the date of his discharge until the date his father returned to work, plus 6 percent interest. F. W. Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co., 138 NLRB 716. I further find that as Robert Carpenter was discharged, and not laid off, he was entitled to be fully reinstated as a winter season employee in the fall of 1972 at the same time and to the same status he would have been had he not been discriminatonly discharged. In the absence of record evidence that he has received reinstatement to the extent he was entitled, I find that an order so providing is necessary to effectuate the policies of the Act. Pantlind Hotel Company, 175 NLRB 815, footnote 6. No backpay will be due between the date Carpenter's father returned to work and the date Robert Carpenter normally would have returned in the fall of 1972. See Roadhome Construction Corp., 170 NLRB 668, footnote 1. I also find necessary the customary cease-and-desist and affirmative action provi- sions. [Recommended Order omitted from publication.]