Gerken & Sons Wholesale Foods

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George L. Gerken and John T. Gerken, Partners, d/b/a Gerken & Sons Wholesale Foods and Dennis G. Allen. Case 14-CA-7401 January 14, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 31, 1973, Administrative Law Judge Morton D . Friedman issued the attached Decision in this proceeding . Thereafter, Respondent filed excep- tions 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 light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 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 Respondent, George L. Gerken and John T. Gerken, Partners, d/b/a Gerken & Sons Wholesale Foods, Belleville, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i 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 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: Upon a charge filed on May 10, 1973, by Dennis G. Allen, an individual, herein called the Charging Party or Allen, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on June 12, 1973, on behalf of the General Counsel of the Board against George L. Gerken and John T. Gerken, Partners, d/b/a Gerken & Sons Wholesale Foods, herein called the Respondent, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, herein called the Act. In its duly filed answer, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at St. Louis, Missouri, on August 21, 1973. All parties were represented and were afforded full opportunity to be heard. Upon consideration of the entire record herein , including the briefs of the parties, and upon my observation of each witness appearing before me at the hearing herein, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a partnership of George L. Gerken and John T. Gerken, with its office and principal place of business at the city of Belleville, Illinois, is engaged in the nonretail sale and distribution of canned goods, fresh vegetables, and related products. Dunng the year ending December 31, 1972, a representative period, the Respon- dent purchased and caused to be transported and delivered to its place of business in Belleville, Illinois, fresh vegetables, canned goods, and other goods and materials of a value in excess of $50,000 which were transported and delivered to its place of business directly from points located outside the State of Illinois. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Chauffeurs & Helpers Local Union No. 50, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Issues' The principal issue in this case is whether the Respon- dent first laid off and then discharged employee Dennis Allen because Allen filed a grievance and engaged in other protected activities on behalf of the Union, or whether the Respondent discharged Allen for cause. The other issues are whether the Respondent threatened Allen with more arduous working conditions in order to discourage his union activity and threatened Allen with discharge because he had filed a grievance with and sought assistance of the Union. B. The Facts The Respondent has had a bargaining relationship with the Union since 1946, the year that Respondent started business. During that period of time, the Respondent has entered into successive bargaining agreements with the Union, including the bargaining agreement which expired on April 1, 1972, covering a unit of Respondent's drivers. The drivers' duties are principally to deliver Respondent's 208 NLRB No. 71 GERKEN & SONS WHOLESALE FOODS 385 merchandise to its various customers. During that period of time, also, the relationship between the Union and the Respondent has been, with the exception of the case of Dennis Allen, the Charging Party herein, relatively uneventful. In January 1972, the Respondent received a 60-day notice of request to negotiate a new contract to replace the then current contract which was due to expire April 1, 1972. Evidently, thereafter, both the Respondent and the Union either completely forgot about this request for renegotiation or purposely ignored it. In any event, nothing further was done about the renegotiation until sometime in February 1973. In the interim, on Apnl 1, 1972, the date of the expiration of the contract as noted above, the Respondent gave to its drivers a 25-cents-per-hour wage increase without consultation with the Union. Among the drivers who received such increase was Dennis Allen. Allen, one of the Respondent's five drivers i and a member of the Union, was hired by the Respondent in September of 1970. He started at the rate of $2.70 an hour and received a 15-cent increase as the result of a union negotiated contractual raise in 1971. Upon the expiration of the contract on April 1, 1972, Allen along with the four other drivers received a 25-cent raise so that at the time of his discharge on May 4, 1973, he was making $3.10 an hour. As noted above, the April 1973 raise was voluntary and was given to the employees without consultation or negotiation with the Union. In addition to the raises, Allen at each Christmastime during his employment was given a bonus by the Respondent, also in addition to any contractual arrangement, the last such bonus being at Christmas 1972, at which time Allen was given $100. In addition, Allen was also permitted to borrow the Respon- dent's truck for his own personal use upon several occasions during his period of employment. On Friday, February 2, 1973, Allen engaged managing partner John T. Gerken, familiarly known as Tom Gerken, in a conversation in the Respondent's office. Allen informed Tom Gerken that Allen's wife was going to have a baby and that he was concerned with hospitalization and other medical costs. Tom Gerken told Allen that the latter should go to the union office to see what kind of coverage Allen might have through the Union. In connection with this, it should be noted that the Respondent, despite the fact that its contract with the Union had expired on April 1, 1972, continued to make health and welfare payments to the Union as required by the expired contract. As a result of this conversation with Tom Gerken, Allen visited the union office and spoke to Arthur Luekemeyer, secretary-treasurer and business agent of the Union. Luekemeyer told Allen that the latter had full coverage for the maternity expenses. However, at that time, in looking over the file with regard to the Respondent, Luekemeyer noted and informed Allen that the contract had expired. This was the first time that Allen became aware of such fact. Luekemeyer then instructed Allen to inform the other men about this fact and to get them together to come to the union office to discuss possible demands and requirements for a new contract which the Union would negotiate with the Respondent. Allen consented to do this. At 12 noon, on the following Monday, February 6, 1973, in the office of the Respondent, Allen was informing the other drivers of this meeting and the fact that the contract had expired when Tom Gerken entered the room. Allen thereupon informed Tom Gerken of the matter of the expired contract and the proposed meeting to be held to draft new contract demands. Gerken replied, "That was some union" that did not even inform its members that their contract with the Respondent had expired. At this time he informed Allen that the latter was entitled to the maternity benefits because the Respondent had been paying the health and welfare benefit payments to the Union up to that date.2 Three days later, on Friday, February 9, at approximate- ly 1:45 p.m., Allen came into the Respondent's office to check out his collections at the end of the day. There Tom Gerken engaged Allen in a conversation. Gerken asked Allen about the Union and especially whether or not they had a contract. Allen answered that he presumed they had a contract because the employees were going to draw up proposals for a new contract the following week. Then Tom Gerken said to Allen "Well, I'm going to give you Monday off." When Allen asked the reason for this Gerken answered "Well, I'm going to let you go out and look for a better job. If you think you're better, you can go out and find a better job." Then Allen asked Gerken whether he was not the one who told Allen to go to the Union to find out about the maternity benefits. Gerken answered that he was just going to lay Allen off for that Monday. When Allen asked about the following Tuesday Gerken answered "Well, it's up to you whether you come back or not." Gerken then told Allen "If you're going to show me a hard time, I'm going to show you that I can show you a hard time." Allen answered that that was a hard way to find out about a union and the conversation ended. Following this conversation, on Monday, February 12, Allen was off for the day but returned to work on Tuesday, February 13.3 On Tuesday, February 13, the drivers met with Lueke- meyer, union business agent, to draft their proposals to the Respondent for a new contract. When the meeting ended, Allen told Luekemeyer that he had been laid off on February 12 for that day. According to Luekemeyer, whom I credit, Allen told him he had been laid off while men with less seniority were working. Luekemeyer told Allen that if that was so, Allen was entitled to be paid for the day and that he would take care of it. Thereafter, on February 14, February 20, and again on March 30, at negotiation meetings held with Tom Gerken, Luekemeyer told the latter the Respondent would have to pay Allen for the day Allen was laid off. Each time Tom Gerken refused to pay Allen for that day telling Luekemeyer that he did not believe "in paying anyone for not working." I Allen drove a truck Monday, Tuesday, Thursday, and Friday of each Tom Gerken, and Luekemeyer week On Wednesday he covered a set route for the Respondent as a 3 The foregoing from the credited testimony of Allen. I do not credit salesman John T Gerken's version of the conversation preceding the layoff for 2 All of the foregoing from credited portions of the testimony of Allen , reasons hereinafter set forth in this Decision 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, on February 16, 1973, prior to Luekemeyer's meeting with Gerken, Luekemeyer sent to the Respondent the employees' proposals for the new contract. This letter was received by Tom Gerken some days thereafter. After reading the proposals, Tom Gerken on the Monday morning following the receipt of the letter containing the proposals, called all the employees together and spoke to them. He told them that they had demanded a $73 per week raise and that the Respondent would not pay this and that "they should quit their job and go get a different job or go see Mr. Luekemeyer and see if he couldn't get them on a concrete truck, because they paid big money, or go to St. Louis and see if they could get on a tractor trailer because they paid more money."4 Nevertheless, despite Gerken's initial reaction to the employees' proposals, as noted above, negotiation sessions were held on a number of days and finally on March 30, 1973, a new collective-bargaining agreement was signed by all parties .5 Although Luekemeyer had spoken to Tom Gerken at the bargaining meetings with regard to paying Dennis Allen for February 12, as noted above, the Respondent refused to pay Allen for that day. Accordingly, on April 23, Allen not having received any satisfaction through Luekemeyer's efforts, filed a formal written grievance through the Union and through Luekemeyer with the Respondent. Luekemey- er mailed this grievance to the Respondent on April 27 and the Respondent received it within a day or two thereafter. When Allen filed the grievance, Luekemeyer told Allen that this was the first formal grievance that had ever been filed against the Respondent in all the years of the bargaining' relationship with the Respondent. Allen testi- fied, without contradiction, that the reason he delayed so long in filing a grievance was that he thought Luekemeyer could straighten out the matter without a formal grievance. Thus matters stood until Wednesday, May 7, 1973. On that day Allen was preparing to leave for his usual sales route when he was told that Tom Gerken, Jr., would accompany him on the route. This was the first time anyone had accompanied him on this route since the date that he took it over in December 1971. So far as the record shows, no explanation was given to Allen by anyone at the management level of the Respondent as to why Tom Gerken, Jr., accompanied him on that day. On the following day, Thursday, May 3, Tom Gerken, Jr., and another driver were sent on Allen's route while Allen was sent on the other driver's route. According to Allen, whose testimony in this respect I accept, only on one other occasion, when Allen was ill, did anyone ever cover his delivery route. On that same afternoon, May 3, at about 1:45 p.m., Tom Gerken asked Allen to come into Gerken's warehouse office. Present beside Allen and Tom Gerken was George Gerken, senior partner and founder of Respondent. Tom Gerken, referring to the formal written grievance which Allen had filed with the Union and which the Union had forwarded to Tom Gerken, told Allen, in substance, that 4 This quotation from the uncontroverted testimony of Tom Gerken 5 From credited testimony of Luekemeyer This testimony was uncontro- verted and, from my observation of Luekemeyer , I found him to be a very reliable witness 6 All of the foregoing from credited testimony of Allen and of since Allen had filed a grievance in which he complained about being refused a day's pay for February 12, and since Tom Gerken had given Allen a 25-cents-an-hour raise approximately a year before, the extra money that Allen had received since then totalled $500. Tom Gerken then told Allen that since they owed Allen a day's pay, according to Allen's grievance, Allen owed the Respondent the sum of $500. At that point, George Gerken entered into the conversation and asked Allen what the latter was trying to do. George Gerken then continued by reminding Allen of the favors Respondent had given Allen in the past such as the bonuses and permitting Allen to use the Respon- dent's truck for personal use whenever Allen asked. Allen answered that he had thanked Tom Gerken for these favors but that he did not think that Gerken should have laid him off for the day of February 12. George Gerken then replied to the effect that Tom could do anything that he wanted to do, and "He can lay you off or fire you any time he wants to." George Gerken added "We laid you off Monday, hoping you wouldn't come back." When Allen replied that he knew that, Tom Gerken reentered the conversation and stated "Well, Dad, there's no use talking to him. That's his nature. If that's the way he wants it, that's the way it's going to be." At that point Allen walked out of the office. Later that afternoon, at approximately 4:30 p.m., Luekemeyer visited the Respondent's establishment and discussed with Tom Gerken the merits of Allen's written grievance. He explained to Tom Gerken that although at the time of the I-day layoff, the 1971-1972 contract had expired, nevertheless, the terms and conditions of employ- ment contained therein continued by reason of a continua- tion clause in the contract and that, therefore, the Respondent had no legal right to lay off Allen or any other employee at a time when junior employees were working. In other words, layoffs had to be made in the order of seniority. At the end of that discussion, Tom Gerken indicated to Luekemeyer that he would pay Allen the day's pay. It is significant, that at that time, although according to Tom Gerken's testimony, as set forth below, he had made up his mind to discharge Allen the following day for Allen's mistakes, he did not mention these mistakes to Luekemeyer or to Allen during the earlier conversation with Allen on that day. At least, Luekemeyer did not testify to this effect and Respondent's counsel did not inquire of Luekemeyer with regard to any knowledge Luekemeyer might have had of Allen's impending dis- charge.6 The following day, May 4, Tom Gerken instructed Allen to check out his money early upon Allen's return from his delivery route. Tom Gerken then handed Allen three checks and explained that one check was for his week's pay, the second check was for Allen's 2-week vacation pay which Allen had coming to him, and the third check was for the day's pay of February 12. Then Tom Gerken told Allen'that Gerken wanted to square things up with Allen. He followed this with the statement "I'm laying you off Luekemeyer Although George Gerken gave a slightly different version of the conversation which occurred in the office of the Respondent between Allen and the two Gerkens on Thursday afternoon, May 3, for reasons hereinafter stated and because his version did not differ very materially from Allen's version, I credit the version as contained in Allen's testimony GERKEN & SONS WHOLESALE FOODS 387 permanently because you made a mistake on one of my biggest customers, Mascoutah, last week, and you've been coming in late." 7 With that remark, and upon receiving the three checks as stated, Allen left the Respondent's premises.8 Several days thereafter, by letter dated May 8, 1973, which letter was sent to both Allen and the Union, Tom Gerken further sought to support the discharge by stating that Allen had been discharged only after repeated warnings concerning careless deliveries necessitating sec- ond trips to correct the mistake and that the discharge resulted because of Allen's disregard of work rules and sloppy, careless work habits, resulting in antagonizing the Respondent's largest customer. C. The Respondent's Defense Aside from giving slightly different versions of the various conversations between Allen and Tom Gerken and George Gerken, the Respondent contends, as indicated by the recital of its letter of May 8, 1973, that Allen was discharged solely for his inability to follow the Respon- dent's work rules, for sloppy work, careless deliveries, and generally bad working habits. According to the testimony of Tom Gerken, during the last week of Allen's employ- ment, the latter made six very serious mistakes and this was after Allen had been warned on many occasions concern- ing mistakes and sloppy work habits. In fact, according to Tom Gerken, the reason for the layoff of February 12, as above set forth, was that Allen's work habits had become so bad by that time and the mistakes he made so numerous, that the purpose of the February 12 layoff was to give Allen an opportunity to obtain another position, evidently because the Respondent was reluctant to take the final step of discharging Allen. Then, according to Tom Gerken, when Allen made the six mistakes in the week ending May 4, 1973, the situation had become absolutely intolerable and he had no alterna- tive but to fire Allen. The mistakes which brought about the decision to discharge Allen were outlined by Tom Gerken in his testimony. According to that testimony, two times during that last week Allen had delivered the wrong merchandise to the Mascoutah schools. The correct merchandise, chili beans, was marked on the delivery tickets and Allen asked the caretaker or cooks at the Mascoutah schools to sign for the wrong merchandise, pork and beans. Thereafter the customer (school district) called up very angry and demanded that they put somebody on the truck who could read the delivery tickets and not have the cooks sign for things that were not delivered. Then the person in charge of the school said that she needed the chili beans, not pork and beans, for dinner inasmuch as they were on her menu. Accordingly, the Respondent had to send out a truck to pick up the two mistakes and deliver the correct merchandise. That was mistake number one. Also Allen delivered barbecue to the wrong customer and someone else had to correct the mistake. Then, the same week, on Thursday, when Allen was returning to the Respondent s warehouse, he picked up a gallon jug of barbecue, which admittedly was delivered mistakenly by another employee, and put it on his truck. On the way back the gallon jug rolled over because of careless placement on the truck bed and the jug broke. Finally, on Friday, the day that Allen was discharged, he delivered to a restaurant a case of tomato juice instead of tomato sauce and had some individual sign the ticket for the delivery. Then, when it was discovered that the wrong merchandise was shipped, the customer called Respondent and they had to correct that mistake the Monday after Allen was discharged. Upon learning of these mistakes, according to Tom Gerken, he discharged Allen saying that he did not have to keep a man that makes that many mistakes and angers customers by delivering merchandise not on the delivery ticket. As noted above, if deliveries to the Mascoutah schools of the pork and beans instead of chili beans was done twice that could be counted as two mistakes. Then, as noted, Tom Gerken specified only two other mistakes that Allen had made, although he claimed that Allen had made six altogether. At the most, he detailed only four. Additionally, Tom Gerken testified that three other employees had been fired not long before Allen was discharged because they, too, had made too many mistakes. However, no details of these discharges were recited and the names of the employees who were allegedly discharged and the dates of their discharges were not given. On the other hand, Allen testified that he had never been reprimanded for his work performance before February 9, 1973. Allen admitted to making one mistake in delivering chili beans to the Mascoutah school district instead of pork and beans. However, he denied that he made that mistake twice to two different schools. Further, Allen testified, with regard to the broken glass container of barbecue, the breakage was on Friday afternoon, the last day he worked and not on Thursday; and that he was discharged within 15 minutes after he informed the Respondent of the breakage upon his return to the Respondent's premises. Allen also stated that he was unaware that during that last week he delivered, as testified by Tom Gerken, tomato juice instead of tomato sauce to a restaurant. Thus, Allen admitted to only two mistakes made during that week. However, Allen did admit, that in filing for unemployment compensation, he stated that he was discharged "for mistakes." However, Allen did testify without contradiction by the Respondent, that other employees who had made far greater mistakes than breaking an $8 jug of barbecue had not been discharged. These other incidents involved $800 damage to a truck by one of the drivers; a total wreckage of a $3,000 automobile belonging to the Respondent by one of the salesmen. Furthermore, Allen recited a number of instances specifically naming dates and times at which other delivery drivers such as Allen made a number of mistakes and that nothing resulted by way of layoff or discharge to these drivers. It should be noted, in connection with all of the foregoing, that at no time did the Respondent either at the r Mascoutah is a school district in Illinois to which the Respondent x From credited testimony of Allen which was not substantially evidently delivered a large quantity of merchandise each week controverted by the testimony of Tom Gerken. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time of Allen's layoff or at final discharge, inform Allen that the latter's union activity was the reason for the Respondent's decisions. D. Discussion and Concluding Findings Respondent contends, as noted above, that it never at any time either by Tom Gerken or by George Gerken interfered with or threatened Allen in violation of his Section 7 rights. Additionally, Respondent, also as noted above, contends that Allen was first laid off and then discharged because of his poor performance as an employee and not for any discriminatory reasons. While I do not fully credit Allen with regard to his testimony to the effect that he had never before been corrected or reprimanded in any manner with regard to his work performance prior to February 9, 1973, the day on which he was informed by Tom Gerken that he would be laid off for the day of February 12, I do credit, in the main, Allen's other testimony. Where Allen's testimony is in conflict with the testimony of either Tom or George Gerken , I credit Allen's version. In addition to the observation of these witnesses and their demeanor on the witness stand , which forms part of the basis for my crediting Allen over the others, I note that Luekemeyer's testimony supports, to a substantial degree, the testimony of Allen with regard to the transactions between Allen and Luekemeyer. Additionally, in many respects, the testimony of both George Gerken and Tom Gerken do not materially differ from Allen's testimony except with regard to the import of such testimony . Moreover, although Tom Gerken recited that he laid off and discharged Allen for poor performance and for making mistakes , he recited only, at the most, four mistakes and not six. Furthermore, with regard to the delivery of the tomato juice instead of the tomato sauce, there is grave doubt that if Allen actually made this mistake , it was called to the attention of the Respondent before Allen's discharge . This is so because Respondent's employees work on Saturday. Yet, Tom Gerken testified that Allen's mistake was corrected on the following Monday . If the mistake was as critical as Tom Gerken testified, certainly the mistake would have been corrected on Saturday when the Respondent 's drivers were available to make such correction. Accordingly, for these and other flaws in the testimony of Tom Gerken , I credit Allen's versions of what occurred over those of Gerken. We come now to the merits of the various allegations of the complaint. The first allegation is that on February 9, Tom Gerken, after asking Allen about the union contract and after telling Allen that the latter was to be laid off for a day, said "If you're going to show me a hard time, I'm going to show you that I can show you a hard time." Although this statement does not, in and of itself , contain a threat to interfere with Allen 's legitimate union activities, in the context of the entire conversation and in the context of the announcement of the layoff only a few days after Allen told Tom Gerken that the employees were going to hold a meeting to discuss the provisions of a new contract, leads to the conclusion that this otherwise rather ambigu- ous statement constituted a threat to Allen that Respon- dent would in some manner retaliate against Allen if the latter persisted in pursuing the matter of the new contract on behalf of the Union . This is clearly a threat interfering with Allen's right to engage in union activity and, accordingly, is violative of Section 8(a)(1) of the Act. With regard to the layoff of February 12, 1 would have under different circumstances perhaps come to the conclusion that Allen was , indeed, laid off because of poor work performance and in order to give him an opportunity to obtain a different job. However , the timing of this layoff is extremely critical . At noted, Gerken told Allen that the latter would be laid off a few days after Allen told him that the employees were going to draw up proposals for a new contract the following week . As above recited , the Union had requested negotiations toward a new contract almost a year prior to February 9, 1973. The Respondent had ignored this request and had, indeed , given the employees raises without the consent of or negotiations with the Union. Then, suddenly, due to Allen's visit with Lueke- meyer, the Union was back in the picture and Respondent had to face the possibility of demands which it would not have had to face had the Union not been brought back into the picture . Thus, it is quite evident that Tom Gerken was substantially irritated upon learning of the Union meeting, and probable new demands . The layoff announcement, which came only a few days later , I find, was in retaliation for Allen's admitted activity in bringing the otherwise moribund union situation back to life . I conclude, therefore, that the layoff was in retaliation for Allen's union activity and was, therefore, discriminatory and in violation of Section 8(a)(3) of the Act. In arriving at this conclusion, I note that despite the Respondent's contention that Allen was laid off for poor work performance, Allen was given a $100 Christmas bonus only a little more than a month before the layoff. Moreover, the Respondent must have considered Allen a desirable employee up to the date of February 9 because it had permitted Allen to use the Respondent's truck for personal purposes whenever Allen asked for the same. However, with regard to George Gerken's remark to Allen on the afternoon of May 3 , 1973, I draw a conclusion that there was no impropriety . As noted above, it is true that prefacing this remark George Gerken reminded Allen of the many good things that the Respondent had done for him and that this followed the question, rhetorical in nature, regarding what Allen was trying to do to the Respondent. Nevertheless , the mere statement by George Gerken that Tom Gerken could lay off or fire Allen any time the latter wished, was not a threat, but rather, a mistaken explanation by George Gerken of what he considered to be the merits of the layoff of Allen on February 12. Gerken testified that he was not present at the time that Allen was laid off and knew only that his son had told him that it was done as a disciplinary measure because of Allen's poor work performance. In this context, I do not find that the remark to the effect that Tom Gerken could lay Allen off or discharge Allen at will interfered with or threatened Allen with discharge in any manner violative of Section 8(a)(1) of the Act. There remains for disposition the allegation that Allen was discharged on May 3 , 1973, because he filed a grievance against the Respondent with the Union and for other protected concerted activity. I have heretofore set GERKEN & SONS WHOLESALE FOODS 389 forth the reasons why I do not credit Tom Gerken. Among those reasons is the fact that Gerken was not specific when he testified that other employees had been discharged for like reason, and that although he contended Allen made six mistakes, he could give details of only four alleged mistakes that Allen made during Allen's final week of employment . Besides being the basis for refusing to credit Tom Gerken, I also conclude that these very factors tend to show that the Respondent's purported reasons for discharging Allen are pretextual. In support of the foregoing conclusion , I have relied upon the fact that the day before Allen 's discharge, at a meeting with Union Business Agent Luekemeyer, Tom Gerken had been persuaded by Luekemeyer that Allen must be paid the day's pay for February 12, which payment Gerken had refused consistently up to the time that a formal grievance was filed. Furthermore, I note that this was the first formal grievance filed against the Respondent. This could have had a very irritating effect upon Tom Gerken . Additionally, I note the Gerkens' annoyance with Allen during the conversation of Thurs- day, May 3, which evidenced their attitude toward Allen for filing the grievance . Other factors taken into considera- tion in coming to the conclusion that the reasons given for Allen's discharge were pretextual , are the fact that the timing of the discharge so soon after Respondent had been forced by the Umon to acquiesce in the Union 's demand that Allen be paid for the day's work of the day of February 12 ; the fact that the Respondent in its testimony did not deny the mistakes made by other employees which were far more costly to the Respondent than the mistakes made by Allen ; the fact that the Respondent gave Allen three checks within a very few minutes after Allen informed Tom Gerken of the broken jar of barbecue which leads to the strong suspicion that the checks were written before Allen informed Tom Gerken of the breakage; and the fact that although the Respondent alleges that Allen made mistakes during the week ending May 4, in the conversation of Thursday afternoon preceding the dis- charge, nothing was said to Allen with regard to the mistakes, especially the mistakes allegedly made concern- ing the Mascoutah school distnct, which Respondent claimed was its biggest customer . Yet, this mistake would have to have been known to the Respondent prior to that Thursday conversation. Since the alleged reason for the earlier layoff was for discipline , certainly the Respondent would have mentioned the later mistakes to Allen in discussing with him the grievance over the layoff. Thus I find and conclude that Respondent 's contention that Allen was discharged solely because of poor work performance is without merit. I find and conclude that Respondent's announced reasons for Allen's discharge were pretextual and that Allen was discharged because he successfully prosecuted the written grievance against the Respondent through the Union on the day before he was discharged. In coming to the foregoing conclusion , I have not ignored the testimony of Luekemeyer to the effect that this was the first grievance that had been filed against the Respondent in the years during which the Respondent and the Union had a bargaining relationship. Moreover, I have taken into consideration the fact that the Union and the Respondent came to a satisfactory conclusion with regard to the negotiations for a new contract and signed such bargaining agreement on March 30, 1973, without any appreciable amount of difficulty . However, it is readily perceivable that even an employer with a good labor relations history would be even more piqued at an employee who filed a formal grievance and successfully prosecuted the same than would be an employer who had had numerous grievances filed against it. I therefore conclude that the discharge of Allen was discriminatory for all of the foregoing reasons and that, accordingly, such discharge was in violation of Section 8(a)(3) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above , have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent , by threaten- ing reprisals against an employee for the latter's engaging in union or otherwise protected concerted activity, has restrained and coerced employees in violation of Section 8(a)(1) of the Act , I shall recommend that the Respondent cease and desist therefrom. Having found that the Respondent discriminatorily discharged Dennis G . Allen, I shall recommend that Respondent offer Allen immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges. In addition, I shall recommend that the Respondent make Allen whole for any loss 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 would normally have earned from the date of his discharge , less net earnings during said period . Backpay shall be computed with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295 ; Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact and upon the entire record in the case , I make the following: i CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By threatening its employee with reprisal for engag- ing in union or other protected concerted activity, the Respondent has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed said employees in Section 7 of the Act and thereby Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging its employee Dennis G. Allen, the Respondent has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: ORDERS Respondent, Gerken & Sons Wholesale Foods, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisals because of the employees' union or otherwise protected concerted activities. (b) Discouraging membership in Chauffeurs & Helpers Local Union No. 50, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging any employee for engaging in union or protected concerted activity, or by discriminating against employees in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (c) In any like or similar manner interfering with, restraining or coercing its employees in the exercise of their rights to form, join, assist, or be represented by Chauffeurs & Helpers Local Union No. 50, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activity except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) and as guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Dennis G. Allen immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve, and upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records and reports and all other reports necessary to analyze the amount of backpay due under this order. (c) Post at its office in Belleville, Illinois, at places whersr notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not found herein. B In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 10 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten with reprisals any of our employees because said employees engage in union or other protected concerted activities. WE WILL NOT discharge any of our employees for filing grievances under our contract with Chauffeurs & Helpers Local Union No. 50, or for engaging in any other union or protected concerted activities. WE WILL offer Dennis G. Allen full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any losses he may have suffered as a result of our discrimination against him. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by Local 50 of the Teamsters, or any other labor organization, to bargain collectively through represent- atives of their own choosing or engage in other concerted activity for the purpose of collective bargain- ing or other mutual aid or protection or to refrain from any or all such activity. GERKEN & SONS WHOLESALE FOODS (Employer) GERKEN & SONS WHOLESALE FOODS 391 Dated By or covered by any other material. Any questions concern- (Representative) (Title) ing this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, This is an official notice and must not be defaced by Room 448, St. Louis, Missouri 63101, Telephone anyone. 314-622-4167. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced,