Mid-City Wholesale Meat Co., Inc.

MID-CITY WHOLESALE MEAT CO. 627 Mid-City Wholesale Meat Co., Inc. and Fred J. Scoleri. Case 4-CA-6001 March 21, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 21, 1972, Administrative Law Judge Samuel M . Singer issued the attached Decision in this proceeding . Thereafter , the Respondent filed exceptions. 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 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, Mid-City Whole- sale Meat Co., Inc., Philadelphia, Pennsylvania, 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 the Administrative Law Judge's notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection If you wish, not to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT coercively question you concern- ing your union sympathies and activities or those of fellow employees, nor threaten you with plant closure or other reprisals for membership or activity in any union, nor promise or grant you benefits to discourage membership and activity in any union, nor induce you to withdraw member- ship from any union. WE WILL NOT discourage membership in, or activities on behalf of, Teamsters Local 500 by discriminating against you in regard to your jobs. WE WILL offer Fred J. Scoleri immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, with full seniority and all other rights and privileges, since he was found to have been discharged for supporting Teamsters Local 500. WE WILL make up all pay Fred J. Scoleri lost, plus interest. MID-CITY WHOLESALE MEAT CO., INC. (Employer) ' We correct the following inadvertent errors in the Administrative Law Judge's Decision (1) His statement that "Also according to Silverman, all his drivers, except Sturgeon Brown, were under suspension " should be corrected to read "Also according to Silverman, all his dnvers, except Spurgeon Brown , were under suspicion" (2) His statement that "In response to the drivers' requests, Solomon also offered to give them overtime benefits and a 38-hour guaranteed workweek, if they remained with Local 196", should be corrected to read "In response to the dnvers' requests, Silverman also offered to give them overtime benefits and a 38- hour guaranteed workweek, if they remained with Local 196 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge, at which all sides had the chance to give evidence, it has been decided that we, Mid-City Wholesale Meat Co., Inc., have violated the National Labor Relations Act, and we have been ordered to post this Notice. 202 NLRB No. 101 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, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania 19197, Telephone 215-597-7601. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION SAMUEL M. SINGER, Administrative Law Judge: This proceeding was tried before me in Philadelphia, Pennsylva- nia, on August 17-18 and September 6, pursuant to a charge filed on May 12 and complaint issued on August 10, 1972.1 The complaint alleges in substance that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act: (a) through interference, restraint, and coercion (including interrogation of employees concerning their union activities, promises of benefits if they refrained from such activities, and threats of reprisals if they assisted or supported a union); and (b) through discriminatory discharge of an employee for joining and assisting a union (Teamsters Local 500). All parties appeared and were afforded opportunity to be heard and to examine and cross-examine witnesses. Briefs were received from the parties on October 24. Upon the entire record 2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT; LABOR ORGANIZATIONS INVOLVED Respondent, a Pennsylvania corporation, with principal place of business in Philadelphia, Pennsylvania, is engaged in the wholesale distribution of meats. It annually sells to purchasers in other States, and purchases from sellers in other States, goods and products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and operations affecting commerce within the meaning of the Act. Amalgamated Food Employees Union Local 196 (Local 196-with which Respondent has had contractual rela- tions) and Teamsters Local 500 (Local 500-of which Charging Party was a member) are each labor organiza- tions within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts 1. The drivers' dissatisfaction with Local 196 representation and attempts to join Local 500; Respondent's interrogation and threats to discourage Local 500 organizational activity During the period here involved, Respondent's officials and agents included Louis Feldman (president), Alvin Silverman (secretary -treasurer), Nate Klevansky (manag- er), and Irving Zalut (shipper). Its 10 employees-3 or 4 ' Unless otherwise indicated all dates herein are in 1972 2 Transcript as corrected by my order on notice dated October 24, 1972 3 As indicated, the above findings are based on the credited testimony of Brown who, although not a highly articulate witness, testified with conviction and sincerity Respondent's secretary-treasurer, Silverman, who had close business and personal contacts with Brown, an old-time (7 1/2- year) employee, himself described Brown as completely trustworthy and honest, indicating that he had great confidence in him 4 It is to be noted that the above credited testimony of Scoleri (the Charging Party and alleged discriminatee) parallels that of Brown in several truckdrivers and the rest "utility" men-were represented by Local 196, with which Respondent has had contractual relations. Utility men are primarily engaged in packing and preparing customer orders while truckdrivers deliver the orders to customers; the utility men may, however, be called upon to drive the trucks. In February, Local 196 served notice on Respondent of its intent "to negotiate changes" in the existing collective agreement expiring on May 4., Around the same time, several employees-including Spurgeon Brown, a long- time truckdriver-decided to seek representation by Local 500 since they were dissatisfied with Local 196's service to the men. Brown and other employees later signed Local 500 authorization cards. Brown testified credibly that, shortly after he signed his card, Company Manager Klevansky called him to his office, told him that he had heard the men "contacted" Local 500, and asked if this were "true." Brown admitted that it was, indicating that they had attempted to bring in Local 500 as far back as a year before, "because we wanted 500 to be our representa- tives when the [Local 1961 contract ran out." Klevansky said he "would not bother with 500" and that "before he would have it he would sell out and go to Florida or somewhere."3 Around the same time (February 22), Scoleri, hired as a utility man but later assigned to truckdriving, testified credibly that he, too, had been summoned to Klevansky's office. Klevansky asked him if he knew "anything about Local 500," indicating he was aware that Brown and another driver (Williams) had signed cards. Scoleri disavowed knowledge about Local 500, denied joining it, and promised he would not sign a card if given certain sick and hospitalization benefits. Klevansky said that Brown and Williams would be fired for joining Local 500, that he "would take care" of Scoleri, and that Scoleri would be assigned the "easy" driving routes. Scolen reported this conversation to Supervisor Zalut, the Company's shipper, who assured Scoleri that he "would get the easy ones from now on," i.e., the "Atlantic City and South Jersey" routes rather than the more difficult city (Philadelphia) jobs.4 On, March 3, while having his truck filled with gas near the plant, Local 500 Shop Steward Thomas (who worked for a company across the street from Respondent's plant) urged Scoleri to sign an authorization card. After explain- ing the benefits Local 500 offered, Scolen agreed to join. Thomas told him he would bring "the papers" to sign the next week. Several days later (Tuesday, March 7), after completing his deliveries and returning with his truck, Secretary- Treasurer Silverman asked Scoleri whether he had joined Local 500. When Scoleri said, "No," Silverman cautioned him to "stay away from it" and not to "join it." Silverman then asked if he knew "who signed" up; Scoleri said that particulars, including Klevansky's questioning concerning Local 500 organizational activity and threats of reprisals for engaging in such activity Moreover, Zalut, a company witness, did not specifically deny the statements ascribed to him by Scoleri Furthermore , although Silverman sought to convey the impression that Scolen was a utility man throughout his employment and drove only occasionally , Zalut admitted that Scolen had regularly worked as a truckdnver prior to his March 10 discharge Nor did any company witness contradict Scolen's testimony that "my truck was the Jersey one" prior to the time of his dismissal MID-CITY WHOLESALE MEAT CO. 629 "outside of Willie [Williams] and Brownie [Sturgeon Brown], I don't know." 5 2. Employee Scoleri signs a Local 500 card on March 8 and is accused of failing to turn in merchandise on March 9 The next morning (Wednesday, March 8), as Scoleri drove his truck out of one of the bays (with employee Yancey sitting beside him in the cab), Scoleri was forced to come to a halt at the office door leading to the plant because of the heavy street traffic. At this point, Local 500 Representatives Thomas and Itallo came over and asked Scoleri to sign an authorization card. As he began signing one, Scoleri observed Silverman standing at the office door or nearby platform watching him.6 When Scoleri reported to work at 9 a.m. on the next day (Thursday, March 9), Supervisor Zalut (Respondent's shipper) told him not "to punch in" since his regular truck (the one he usually drove to New Jersey) was not yet loaded and ready. Zalut asked, "You joined 500 yesterday, didn't your" Scoleri said, "Yes." Driver Willie Williams, whose truck was already loaded and locked and was present, also said that he had joined Local 500. When Scoleri asked how Zalut knew about his joining Local 500, the latter stated that Local 500 President Amoroso "was in [the plant] the day before, and they seen the tickets, that's how [Zalut] knew [Scoleri] signed."7 Scoleri then went out to get coffee while his truck was being readied. When he returned, Zalut directed him to drive Williams' loaded truck rather than his own. He refused to permit Scoleri to open the truck to exchange his handtruck for that of Williams inside the locked truck.8 Before moving the truck, Williams, who had helped Zalut load it,9 told Scoleri that two extra turkey rolls were placed on the truck as part of a customer's (Ted Alexander's) order although they did not belong in that order. Wise (the utility man who collects merchandise listed on customer orders and hauls it by dolly to the platform and truck) similarly informed Scoleri about the two extra turkey rolls in the Alexander order, as also did Coftin, the Local 196 steward. Scolen said that he would "definitely bring them back" if they were "extra" and did not belong in any customer's order. Scoleri made the deliveries in Williams' truck in Philadelphia (not his normal "Jersey" route) as directed. When he arrived at TeL' Alexander he found, as he had been told by three fellow workers, that two turkey rolls did 5 Based on Scoleri's credited testimony, Silverman did not deny the incident 6 Based on the credited testimony of Scoleri, corroborated by Thomas and Yancey While much of the testimony of Yancey, a Local 500 card signer, is confusing and unreliable , his testimony on the above incident conforms to that of Scoleri and Thomas and is credited According to Thomas, when Scoleri saw Silverman looking at him, Scoleri instinctively exclaimed , "Al [Silverman ] seen me from the platform I know I'm fired now", but Thomas tried to reassure him not to "worry about it " Although Silverman denied knowing that Scolen had joined Local 500, he did not deny the incident His testimony as to knowledge of Local 500 adherents is evasive and equivocal While at first definitively asserting that he did not know the identity of any signatories prior to Scolen's March 10 discharge, he then admitted knowing that Brown had signed a card, stated he "didn't know for sure " whether Williams had signed one also, and asserted that he was sure that Melvin Jones "did not want to be in Local 500 " I Respondent's answer admits the complaint allegation that Zalut had not belong in that order and he thereupon put them aside to bring back to the plant along with rejected merchandise. When he made his delivery at the next stop (Savage store), the customer rejected some items which he also placed aside. However, when he stopped at Quaker Markets, the next store on his route sheet, he discovered that Quaker's package was short two turkey rolls, part of that customer's order. After checking the two extra rolls he previously found in the Alexander order, he discovered that they weighed precisely the same 10 and he accordingly delivered them to Quaker. When he drove back to the plant at the end of the day (around 4:30 p.m.) he turned in the moneys he had collected and the rejected merchandise to Secretary- Treasurer Silverman. ii When the latter asked "is that it," Scoleri said "yes" and left. Silverman admittedly said nothing about any missing turkey rolls. The above findings are based primarily on the credited testimony of Scolen, in part corroborated by Respondent's witness Williams. Scoleri impressed me as an essentially honest witness, appeared sincere and forthright, and withstood close cross-examination. I do not credit Supervi- sor Zalut's testimony that Williams' truck, driven by Scoleri on March 9, contained four turkey rolls. Zalut testified that he and driver Williams had loaded the truck from "start to finish"; that he personally placed the two turkey rolls in the Quaker package as called by the Quaker order; that when he reached the Alexander package (two orders away) he found two turkey rolls which did not belong there; that he immediately matched the weights of these against those written on Quaker's bill and found them to be different; that when he reported to Silverman about the two "extra" rolls in the Alexander order, the latter told him "to leave them ride," i.e., to leave them as part of the Alexander order; that, at the last moment, Silverman switched drivers, directing that Scolen, not Williams, drive Williams' truck; and that he then opened the truck to permit Williams to remove his handtruck and Scoleri to substitute his. Zalut's testimony is in sharp conflict in material respects with that of Williams, another company witness. To begin with, Williams on cross- examination admitted that several orders already had been placed on the truck before he arrived at work,12 recalling that the Alexander (the second after Quaker) order was the first one he personally handled that morning. Although he testified that Zalut did say that the Alexander package contained two turkey rolls not belonging there, Williams left them in the Alexander package as directed. Significant- "interrogated" employees concerning their union membership and activities on March 9 Local 500 Steward Thomas testified credibly that just prior to signing up Scoleri on March 8, Amoroso and other Local 500 officials told him that they already had four signed cards and needed Scolen's (fifth) authorization card for "going to the Company this [March 8 ] morning with the cards " 8 Each driver was assigned a handtruck (used for hauling packages from the truck to the customer's store) for which he was personally responsible 9 During the period in question, it was customary procedure for the truckdriver to load the items on the truck as Zalut (the shipper) checked off the items on the order and noted their weights 10 One roll was 6 pounds, 5 ounces, and the other 6 pounds, 9 ounces The selling price for both rolls was $15 80 Supervisor Zalut (the shipper) had already left for the day iz Zalut testified that he reported to work at 5 30 a in , Williams was asked to report between 7 30 and 8 a in 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, however, Williams was certain that the weights he left in the Alexander order was "six five and six nine," recalling these weights to be Zalut's "favorite number." These were precisely the same weights Zalut admits writing on the Quaker order.13 Finally, contrary to Zalut's testimony, Williams indicated that the locked truck was not opened to exchange his handtruck for that of Scoleri. As between Zalut and Williams, I prefer to credit the latter. Zalut impressed me as an individual who, as a loyal member of the managerial hierarchy, felt impelled to conform his testimony to what he regarded to be in the best interest of his employer On the other hand, Williams, who is still employed by Respondent, testified under the watchful eye of his employer and at its behest (he was a company witness), but at the risk of incurring its displeasure.14 3. The discharge of Scoleri on March 10 When Scoleri reported to work the next morning (March 10), Supervisor Zalut directed him to see Company Manager Klevansky. When the latter asked, "What happened to the two turkey rolls that were on the truck," Scoleri explained that he had transferred the two pieces from the Alexander order, which did not call for turkey rolls, to the Quaker order which did. Klevansky insisted that there were two additional turkey rolls, that Scoleri failed to account for them, and said, "I'm going to have to let you go because you stole these two turkey rolls." Scoleri protested, stating that there were only two turkey rolls on the truck and said that "the only reason you're firing me is because I joined [Local] 500." When Scoleri asked why he was not being allowed to pay for the claimed missing rolls ($15.80) as other employees had previously been permitted to do when they could not account for merchandise, Klevansky "wouldn't even hear of it." The above findings are based on Scoleri's credited testimony Secretary-Treasurer Silverman, who testified that he was "within earshot" of the conversation between Klevansky and Scoleri, did not state what he heard. He only emphasized that Scoleri was dismissed because he "wasn't able to protect our merchandise on our truck," explaining that Scoleri could not account for two of the claimed four turkey rolls. Although he stressed that "we have never accused hum of stealing," in his initial sworn "answer" to the unfair, labor practice charges, Silverman averred that Scoleri was discharged because he "removed merchandise . . . without any authority"-acknowledging that this "seems to be a different" reason than that he assigned at the hearing.15 According to Silverman, he told Scoleri that he would forget the incident if Scolen retraced his route and recovered the missing turkey rolls, but Scoleri declined his offer. Silverman admitted, however, that this 13 Although first testifying that the turkey rolls found in the Alexander order were 7 1 and 7 2 pounds, Zalut later admitted that he could not recall the actual weights 14 This undoubtedly accounts for Williams' hesitant and cautious answer to a critical question at the end of company counsel 's direct examination Asked "How many turkey rolls did you see go onto the truck," Williams responded , " I think there were four I'm not sure " Williams' testimony on cross-examination shows that he could not have seen four rolls "go onto the truck", the Alexander order (which contained the two unordered turkey rolls) was the first he loaded that morning and he had nothing to do with the could easily have been achieved by Scoleri's buying anywhere and bringing back two turkey rolls. The record shows that the disappearance of merchandise and pilferage was a chronic problem at the plant. According to Silverman, this was by no means "unique" at Respondent as this was "a constant problem in the meat industry." Also according to Silverman, all his drivers, except Sturgeon Brown, were under suspension. Admitted- ly, however, prior to March 10 no employee had been discharged or otherwise penalized for shortages or theft. Instead, Respondent uniformly followed the practice of requiring truckdrivers to pay for unaccounted merchan- dise. According to Silverman, the discharge penalty was imposed on Scoleri because it was the first time Respon- dent definitely knew that there was "something extra" on the truck which Scoleri could not account for. 4. Further company interference, restraint, and coercion; Silverman's April 28 threats, promises of benefits, and solicitation of employees to withdraw from Local 500 Subsequent to Scoleri's discharge, employee Sturgeon Brown (Respondent's long-time and trusted employee, supra, In. 3) had several conversations with Secretary- Treasurer Silverman regarding Brown's continued adher- ence to Local 500. Silverman asked whether Brown wanted to "go 500 or 196." On one occasion, Brown indicated that he "couldn't give his decision," suggesting a meeting of all drivers "to see how they felt." On April 26, 8 days before expiration of Respondent's collective agreement with Local 196, company counsel wrote Local 196 requesting a bargaining meeting, pointing out that Respondent's drivers "have been approached by Local 500 to represent them," and stating that "[u]nder no circumstances will [Respondent] recognize Local 500 nor will it bargain with it." The letter concluded' "it is the desire of my client to continue its relationship with your union, and accordingly, we are ready to negotiate as soon as possible. My client intends to take whatever legal action is necessary to maintain the status quo as to representation by your union and to oppose any action taken by Local 5001116 Two days later (April 28), Silverman called his then three drivers (Brown, Williams, and Jones) into his office and told them that he wanted to know whether they were going to "stay with 196 or 500." After Silverman stated he "couldn't go along with 500," Brown asked why represent- atives of Locals 500 and 196 were not present to tell the men "what to do." Silverman indicated that both Unions had given him authority to ascertain the dnvers' wishes. After some discussion, the men asked "what benefits" they would get "if we would stay with 196 for another year," Quaker order (which according to Zalut also contained two turkey rolls) that was loaded by Zalut before Williams' arrival 15 In the same document, and also at the hearing, Silverman asserted that Respondent had consulted Local 196 (the employees' then bargaining representative and the rival of Local 500 which employees-including Scoleri-had joined) concerning the discharge and that Local 196 suggested or "instructed" Respondent to dismiss Scoleri 16 Silverman testified that the letter was sent to Local 196 because "we hadn't heard from them" about renewal of the last contract MID-CITY WHOLESALE MEAT CO. explaining that Local 500 had proposed to secure for them certain wage increases . Silverman said Local 500's wage demands were too high and would put him "out of business" but that he was willing to give them a 50-cent hourly wage raise the next year and an additional 25 cents the second . In response to the drivers' requests , Solomon also offered to give them overtime benefits and a 38-hour guaranteed workweek, if they remained with Local 196. He stressed that he "would not stay in business" if Local 500 came in, warning that he was "going to close up or get other truckers to do the hauling" rather than deal with Local 500. After telling them that "it was up to [the drivers] to take it or leave it," Silverman asked them to sign the following typewritten document which he had prepared: The Undersigned having signed representative cards with Local 500 under duress, do hereby retract our desires for their representation. We request that we remain in Local 196 and they remain our representatives in negotiations with Mid- City Wholesale Meat Co. Ultimately all three drivers signed the document. Explain- ing why he signed it, Brown testified: Well, the paper was laid on the table in front of us, three quarters of an hour before it was signed on account of delay, mostly of me . ' . . I didn't want to sign it . . . At this particular time, I wanted 500 and I didn't know whether to sign it . . . I was debating on whether, in my mind, to sign it and forget about 500 .. .. But Mr. Silverman said that he wouldn 't let it come in-he would have to close up because of the way they would operate, and I didn't want to be out of work The meeting with Silverman and the employees' delibera- tions lasted over an hour, for which time they were paid by Respondent.17 B. Conclusions 1. Interference, Restraint, and Coercion I find and conclude that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by the following acts and conduct: (a) Company Manager Klevansky's February question- ing of employee Brown as to the employees' Local 500 activities and his threat to sell or close the plant rather than deal with Local 500. (b) Klevansky's similar questioning of employee Scoleri in February, his threat to fire Local 500 adherents, and his promise to give Scoleri choice truck routes for refraining from Local 500 membership and activity. (c) Secretary-Treasurer Silverman's March 7 interroga- tion of Scoleri as to whether he had joined Local 500, his warning to "stay away from it," and his inquiry as to the identity of others "who signed" with Local 500. 17 The above findings concerning the April 28 meeting, based on the credited testimony of Brown, are further supported in part by the testimony of employees Williams and Jones and of Silverman-all of whom testified more briefly on this incident Silverman stated that before his meeting with the drivers, Local 196 "didn't come to negotiate so I felt that it was any duty 631 (d) Supervisor's Zalut's March 9 questioning of Scolen as to whether he had joined Local 500. (e) Silverman's April 28 promises of benefits (including increased wages, better overtime terms, and a guaranteed hourly workweek) to induce drivers to adhere to Local 196, his threats to close the plant or hire independent haulers rather than deal with Local 500, and his solicitation of drivers to withdraw from Local 500. 2. The discharge of Scoleri The question whether Respondent discriminatorily discharged Scoleri presents, of course, a question of fact. The Board and courts have repeatedly observed that motive for an employer's action in cases of this type is usually determinable only by circumstantial evidence since direct evidence of a purpose to discriminate is rarely obtainable. Corrte Corp. of Charleston v. N. L. R.B., 375 F.2d 149, 152-153 (C.A. 4) and cases cited. "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). Moreover, "the rule is well established that although ample valid grounds may exist for the discharge of an employee, that discharge will violate Section 8(a)(3) if it was in fact motivated, even partially, by the employee's union activity [citing cases]. Thus, where these are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext to justify an impermissible discharge.' " N.L.R.B v. Pembeck Oil Corp., 404 F.2d 105, 109-110 (C.A. 2). See also, N.L R.B v. Symons Mfg. Co, 328 F.2d 835, 837 (C.A. 7). The "Board could well determine on the whole record that `but for' their union activities . . employees would not have been discharged." Self-Reliance Ukranian American Cooperative Assn., Inc. v. N.L R.B., 461 F.2d 33 (C.A. 7); see also Sweeney & Company, 437 F.2d 1127, 1133 (C.A. 5). Applying the foregoing principles, I conclude that the record amply supports a finding that the March 10 discharge of Scoleri was motivated in substantial control- ling part by Respondent's opposition to his Local 500 membership and sympathies. In reaching this conclusion, I rely particularly on the following factors: Respondent's strong Local 500 animus evidenced, among other things, by its threats (uttered both before and after the discharge) to close the plant rather than deal with Local 500; its knowledge that Scoleri had signed a Local 500 authoriza- tion card evidenced by Secretary-Treasurer Silverman's observation of this event (2 days before the discharge) and Scoleri's admission to Supervisor Zalut (on the day before the discharge) that he had signed one; 18 the apparent resentment of Silverman and Plant Manager Klevansky because of Scoleri's decision to join Local 500 after Scoleri had assured them he would heed their admonition to "stay away from it" and after Klevansky had awarded him the to negotiate [with the drivers]" According to Silverman, he reported the results of the meeting to Local 196, which then executed a new 2-year collective agreement based on the terms he and the drivers had agreed on is Cf Melrose Processing Co, 351 F 2d 693, 698 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more desirable (New Jersey) truck routes for abstaining from Local 500; the timing and coincidence of the discharge within less than 2 days after Scolen had joined Local 500; and the inadequacy of Respondent's explana- tions for the discharge. Although Respondent claims that Scolen was dismissed because he had failed to account for two of the four turkey rolls on the truck (both valued at $15.80), the credited evidence shows that there were only two turkey rolls on the truck and that these were delivered to the customer (Quaker) for whom they were destined. To be sure, Scolen knew (as he was told by three employees) that there were two "extra" pieces on the truck, but these were placed in the Alexander order (where they did not belong) instead of the Quaker order where they did. Scolen did nothing more than any conscientious driver would do, i.e., place the two "extra" Alexander pieces in the Quaker package which was short two turkey rolls-each precisely the same weight as called for in the Quaker order. In any event, it is conceded that shortages and pilferage were a chronic problem and that no driver previously was disciplined, let alone discharged, for failing to account for merchandise Admittedly, also, Respondent here departed from its uniform and customary practice of permitting truckdrivers to pay for unaccounted merchandise, assum- ing (as Respondent claims) that there was a shortage. Moreover, there appears to be a discrepancy in the type of misconduct attributed to Scoleri. While Klevansky on March 10 told him he was discharged because he "stole" two turkey rolls and Silverman in his initial answer to the unfair labor practice charges averred that he had "removed merchandise . . without authority," at the hearing Respondent took the position that "we have never accused him of stealing" and that he was dismissed simply because he "wasn't able to protect our merchandise on our truck"-an obviously less serious offense. It is true that here, as in other discharge cases, there is some evidence tending to negate discriminatory motive. Thus, the record shows that Respondent retained other Local 500 adherents such as Brown and Williams. However, it is well settled that the "fact that respondent retained some union employees does not excuplate him from the charge of discrimination as to those discharged " N.L R.B. v. Nabors, 196 F.2d 272, 276 (C.A. 5). Respon- dent may well have attained its objective of discouraging Local 500 activity by making "an example" of even only one Local 500 adherent. See N.L.R B v. Shedd-Brown Mfg. Co., 213 F.2d 163, 174-175 (C.A. 7). In any event, sound business reasons may explain why Respondent retained other Local 500 sympathizers such as Brown and Jones. The latter were senior and experienced drivers; indeed, Brown was regarded as the most trustworthy of all and Silverman (who had longstanding personal relations with him) may have hoped to influence him to abandon Local 500-which he later (on April 28) did. On the other hand Scoleri, who had been with Respondent only 7 months, was most dispensable. Furthermore, as already indicated, Scoleri, who joined Local 500 after reassuring Respondent that he would not and after being rewarded for his abstention, undoubtedly aroused Respondent's ire. Finally, it was Scoleri's authorization card, the fifth (and last) obtained by Local 500, that triggered the latter's visit to Respondent to demand recognition. Contrary to Respondent's contention (br. pp. 9-10), the fact that the Company discharged Scoleri only after consultation with and at the direction of Local 196, is of no moment. It is well settled that an unfair labor practice cannot be excused because of pressure against the employer, whether such pressure is exerted by a union or employees. See N.L R.B. v. Pappas and Co., 203 F.2d 569, 570 (C.A. 9); N.L.R.B. v. Oertel Brewing Co., 197 F.2d 59, 62 (C.A 6). Cf. Porto Mills, Inc., 149 NLRB 1454, 1464. Nor do I see any significance in the fact, stressed by Respondent (br. pp. 9-10), that Local 196 was the bargaining representative of the employees at the time of the March 10 discharge, that it had a viable collective agreement with it at the time, and that it was under no legal obligation to recognize and deal with Local 500 for which Scoleri signed a card. The statutory guarantee of self-organization assures employees the right to seek a change in bargaining representatives. The record shows that it was the drivers' dissatisfaction with Local 196 that prompted them to seek representation by Local 500 at the expiration of the Respondent's current collective agree- ment with Local 196. Respondent here is not charged with a refusal to recognize and deal with Local 500, but with unlawful attempts to thwart its employees' attempts to affiliate with Local 500 through interference, restraint, and coercion and through the discriminatory discharge of one of its drivers. I find and conclude that the reasons advanced by Respondent for Scoleri's March 10 discharge are pretextu- ous. I conclude that the discharge was, in at least substantial and controlling part, motivated by Respon- dent's opposition to Local 500, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their Local 500 sympathies and activities, by threatening them with reprisals (including plant shutdown) if Local 500 came in, by promising and granting them benefits to discourage Local 500 affiliation and activity, and by soliciting employees' withdrawals from Local 500, Respon- dent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discharging Fred J. Scoleri on March 10, 1972, and thereafter failing or refusing to reinstate him, in order to discourage affiliation with and activity on behalf of Local 500, Respondent has discriminated in regard to hire and tenure of his employment, in violation of Section 8(a)(3) and (1) of the Act. 3 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The recommended order will contain the conventional remedial provisions in cases involving findings of interfer- ence, restraint, and coercion, and discriminatory discharge, in violation of Section 8(a)(1) and (3) of the Act. These will MID-CITY WHOLESALE MEAT CO require Respondent to cease and desist from the unfair labor practices found, and to offer reinstatement with backpay to the employee discriminated against. In accord- ance with usual requirements, reinstatement shall be to the discriminatee's formerjob or, if thatjob no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges. The discriminatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge (March 10, 1972) to the date of a valid offer of reinstatement, less net earnings during such period, to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of, the nature of the unfair labor practices Respondent has engaged in, I shall recommend that it be required to cease and desist from infringing in any manner upon rights guaranteed employees by Section 7 of the Act. 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: 19 ORDER Respondent, Mid-City Wholesale Meat Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning their or other employees' sympathies and activities for any labor organization; threatening employees with plant closure or other reprisals for membership or activity in any labor organization; promising or granting them benefits to discourage membership in or activity for any labor organization; inducing employees to withdraw member- ship from any labor organization of their choice; and in any other manner interfering with, restraining, or coercing 19 In the event that no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order, herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 633 employees in the exercise of their nghts under Section 7 of the Act. (b) Discouraging membership in and activities for Teamsters Local 500, by discriminating in regard to the hire and tenure of employment of Respondent's employees or by discriminating in any other manner in regard to any term or condition of their employment, in order to discourage such membership or activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer Fred J. Scoleri immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his senionty or other nghts and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discharge, in the manner set forth in "The Remedy" section herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of backpay that may be due Fred J. Scoleri, including payroll records, timecards, social secunty records, and other records. (c) Post at its plant in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix," 20 Copies of said notice, on forms provided by the Regional Director for Region 4, shall, after being duly signed by Respon- dent's representatives, be posted by it 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 customanly posted. Reasonable steps shall be taken by Respondent to insure that said Notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "