Ben Hur Produce

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ben Hur Produce and General Teamsters, Sales Drivers, Food Processors, Warehousemen & Help- ers Local 871, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 31-CA-4070 May 31, 1974 DECISION AND ORDER BY CHAIRMAN ' MILLER AND MEMBERS KENNEDY AND PENELLO On March 27, 1974, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed 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 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, Ben Hur Produce, Upland, California, its agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The General Counsel 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 MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed October 25, 1973, and duly served, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing , dated November 28, to be issued and served on Ben Hur Produce, designated as Respondent within this Decision. Therein, Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Respondent's answer, duly filed, failed to plead with respect to certain factual matters set forth within General Counsel's complaint; thereby, the correctness of these allegations was, effectively, conceded. Respondent did, however, deny the commission of unfair labor practices. Pursuant to notice, a hearing with respect to the issues was held on January 8, 1974, at San Bernardino, Califor- nia, before me. The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. When their respective testimonial presentations were concluded, counsel waived their right to file briefs. FINDINGS OF FACT Upon the entire testimonial record, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent has raised no question, herein, with respect to General Counsel's jurisdictional claim. Upon the complaint's relevant factual declarations-more particular- ly, those set forth in detail within the second paragraph thereof-which have not been traversed within Respon- dent's answer, and on which I rely, I have concluded that Respondent herein was, throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. If. COMPLAINANT UNION General Teamsters, Sales Drivers, Food Processors, Warehousemen & Helpers Local 871, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, which admits certain employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Issues This case presents a limited number of substantive questions. Primarily, General Counsel seeks a determina- tion that Everett Schmidt and Ronald Gold, two truckdri- vers in Respondent's hire, were terminated because Arthur Rudy, Respondent's proprietor, had learned that they were, presumptively, seeking union representation. Res- pondent contends, contrariwise, that both men were terminated for valid reasons-not subject to statutory proscription-related solely to their job performance. General Counsel counters, reflexively, with a contention that Respondent's several proclaimed reasons for discharg- ing Schmidt and Gold should be considered pretextual. 211 NLRB No. 13 BEN HUR PRODUCE 71 B. Facts 1. Background Respondent, a California proprietorship, with its princi- pal office and warehouse located in Upland , within that State, conducts a wholesale produce business . Currently, Arthur Rudy and Melba Rudy, his wife , concededly "own" the firm ; there are no other proprietors. (The record warrants a determination, which I make,- that Arthur Rudy and his wife became Respondent's owners something more than 19 months ago , when the firm, then known as Roadhous Produce, went bankrupt. Rudy had worked for Bud Roadhous , who was then the firm's proprietor . Following the latter's bankruptcy, their positions were reversed ; Roadhous became Respondent's - office manager . He held that position , so the record shows, throughout the period with which this case is concerned.) During September and October 1973, when the situation with which this case is concerned developed , Respondent employed six truckdrivers for produce deliveries. Two of these-designated merely as Luke and Ramie within the present record-were considered "Jack-In-The-Box" driv- ers; presumably, their deliveries were, primarily, made to various so-called fast-food restaurants , within the vicinity, doing business under that name. Four drivers-with Schmidt and Gold compassed within their number-deliv- ered produce to schools , twice weekly ; concurrently, they provided daily delivery service for a diversified group of local commercial establishments wherein food was sold. Ronald Gold , known previously to Arthur Rudy since they had both worked for Roadhous Produce before that firm's bankruptcy, had been hired by Respondent some- time during November 1972; before his discharge, pur- suant to certain developments which will be detailed further herein , Gold was Respondent's second most senior driver, with respect to his length of service. Everett Schmidt had been hired during April 1973; when dis- charged, he had the third longest seniority record of Respondent's four general delivery drivers. During Octo- ber 1973, both men were being paid $ 175 weekly salaries. The record is silent regarding Respondent's compensation arrangements with its four other drivers or Robert Quillan, the firm's warehouse manager. 2. Complainant Union's organizational campaign Sometime during late September 1973, Robert Musser, Complainant Union's business representative , telephoned Respondent ; he spoke with Respondent's office manager. Musser and Roadhous had, so Musser testified , shared "good rapport" previously, before the latter's firm, Road- hous Produce, failed. The business representative believed that most of Roadhous Produce's former drivers, who had been members of Complainant Union before the firm's failure, were currently in Respondent's hire. He asked whether Respondent's management would "like to get together and work out a contract" which would save pension credits for Respondent's drivers, or whether he should pursue a normal organizing routine. Respondent's office manager suggested the latter course. (Roadhous, who may no longer be Respondent's office manager, did not testify. While a witness, Arthur Rudy declared, however, that Roadhous had reported his conversation with Complainant Union's business representative in somewhat different terms. Rudy was told, so he presently claims, that Musser wanted to confer with him and would "call back" for the purpose of setting a meeting date. Mrs. Ethel Galbraith, Respondent's former bookkeeper, sum- moned as General Counsel's witness, recalled a verbal report by Roadhous regarding his conversation with Complainant Umon's business representative, consistent with Musser's testimony herein. She recalled further, however, that Roadhous had reported telling Musser he would find it "worthwhile" to speak with Respondent's proprietor, and that Rudy would get in touch with him. According to Galbraith , Rudy had declared he would talk to Musser, and that, when Complainant Union's business representative could show signed contracts with Respon- dent's two competitive wholesale produce distributors, he would "consider" the Union's proposals . The divergent testimonial recitals proffered , with respect to what Road- hous told Rudy regarding the substance of his conversation with Complainant Union's business representative, need not be reviewed or reconciled . A determination now, with respect to whether Rudy was or was not told Musser would make a second telephone call to set a meeting date, would serve no presently useful purpose. Concededly, Musser and Rudy had no subsequent contact.) On October 3, consistently with Roadhous' suggestion, Complainant Union's business representative sent letters, with designation cards enclosed, to four of Respondent's workers-Schmidt, Gold, Frank Chaffee, and Robert Quillan-who had previously held union membership and currently held withdrawal cards. Two of those solicited, Schmidt and Gold, subsequently returned their designation cards, signed. Twice, however, during a period of several days thereafter, Gold, Schmidt, and Chaffee had brief conversa- tions while at work with respect to whether they should visit Complainant Union's hall and discuss Respondent's possible unionization with Complainant Union's business representative . A consensus was reached ; pursuant thereto, two of Respondent's drivers did, subsequently, confer with Business Representative Musser at Complainant Union's hall. (The record herein , which reflects a variety of divergent recollections in this connection, permits no definitive conclusion with respect to which drivers visited the hall. For present purposes , however, no determination with respect thereto seems required.) According to Musser, nothing more than a general discussion developed; Complainant Union's program with respect to Respon- dent's possible unionization, thereafter, remained purely conjectural. 3. Respondent's reaction At this point, we reach the more significant disputed matters with which this Decision will hereinafter deal. General Counsel contends , substantially, that Respon- dent's proprietor was-throughout the period with which this case is concerned, beginning sometime before Com- plainant Union's October 3 card solicitation previously noted-definitely "opposed" with respect to his firm's 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possible unionization. He argues, further, that Gold and Schmidt, the two drivers who had signed and returned Complainant Union's designation cards, were discharged when Respondent's proprietor learned of their favorable disposition with respect to Complainant Union's possible organizational campaign . Respondent contends, contrari- wise, that Rudy's comments, whenever the possible desirability of unionization became a subject of discussion, were substantially limited to regretful declarations that, since his newly purchased business could not yet be considered financially secure, he could not "afford" higher fringe benefit program costs which unionization of the firm's drivers might generate. Further, Respondent con- tends that Gold and Schmidt were both terminated for poor work performance and generally questionable behavi- our. These contradictory contentions will be separately considered. a. General Counsel's case (1) Rudy's purported declarations of distaste regarding the prospect of Respondent's unionization General Counsel's testimonial presentation herein sug- gest a contention that Arthur Rudy had manifested his distaste, when confronted with the possibility that Respon- dent's drivers might seek union representation, sometime before Business Representative Musser's telephone can, previously noted. Mrs. Galbraith, for example, testified that about 2 months before she resigned, during the early part of September presumably, Respondent's warehouse manager, Robert Quillan, had, during a discussion with Respondent's proprietor, declared his "disappointment" and "disgust" with Respondent's limited health insurance policy coverage. According to Mrs. Galbraith's recollec- tion: When he left the office I told Arthur [Rudy] do you know that Bob was a union man and is use [d] to the coverage that the union offered and that is what he really wants [,] and he said I will close the doors before I will join the union. On cross-examination, Mrs. Galbraith reiterated her testimony. She specifically denied that Rudy had merely said he would "have to close" should he be required to "join" the Complainant Union herein. During this same period "several weeks" before Business Representative Musser's October 3 designation card solicitations , Everett Schmidt had likewise proffered a comment, so he testified, which suggested his dissatisfaction regarding the coverage which Respondent's current health insurance program provided. Schmidt had told Respondent's proprietor, so he recalled, that "it would be nice if we had a union here so we would have a good insurance." The driver's testimony, however, reflects no Rudy reply; Schmidt declared, categorically, that Respondent's proprietor had said nothing about checking the possibility of procuring better insurance coverage for Respondent's workers. Ronald Gold, while testifying with regard to his October 17 discharge, recalled a conversation with Rudy which had taken place on Respondent's loading dock, some "few days" before his termination. His testimony, with respect thereto, reads as follows: I was taking boxes in a hand truck off my truck and he came out and he says I want to talk to you a minute and I said okay. He said I want to know what your feelings is tdwards the union . I said I am all for it. Mr. Rudy then replied that you realize it is going to cost the company approximately $90 a month for each employ- ee. . . . I replied that no I didn't really feel that we needed all the benefits involved in the approximately $90. Mr. Rudy then replied that the company just couldn't afford that ... that it would be a tragedy to the company at the time . I once again replied that I really didn't feel we were going to ask for the moon ... we just needed a little coverage . . . . He said at the time he had another insurance company cover- age.... to give us some good medical insurance, health insurance ... and that is about really the conversation. Consistent with Gold's testimony, the record warrants a determination, which I make, that this reported conversa- tional exchange reflects his sole discussion, with any company supervisor, during which the possible conse- quences of Respondent's unionization were considered. (2) Ronald Gold's discharge During the early afternoon of Wednesday, October 17, Rudy spoke with Gold in Respondent's dock area; no other persons were present. The driver's testimony, with regard to their conversation, reads as follows: He says I want to speak to you a moment and I said okay. Then we went into the dock foreman's office-it was private. And Mr. Rudy just said that I am going to have to let you go. I asked him why. He said, well, he says you are causing too much confusion on the dock and the company simply can't afford you at this time; we are in financial difficulty. I asked Mr. Rudy what did he mean by causing too much confusion on the dock. He replied that I was late for work and I refused to take out deliveries [,] which at the time I admitted that I was late for work a few times . I can recall one time that I refused to take out an order. Then we simply ended the conversation and went into the main office and he handed me my check. He said if the company got on their feet in a couple weeks he would like to hire me back. That was about it and I left. When subsequently queried, during cross-examination, with regard to Rudy's charge of persistent tardiness, Gold conceded that, during the 3- or 4-month period which had directly preceded his termination, he had occasionally reported late for work; however, he denied, categorically, the suggestion proffered by Respondent 's counsel that persistent, repetitive tardiness had characterized his work performance. Further, he denied receiving any prior reprimands or threats of discharge because of his purport- edly persistent tardiness. With regard to Rudy's contention that he had frequently refused to make late deliveries, BEN HUR PRODUCE 73 following the conclusion of his regular delivery runs, Gold conceded two such refusals within the 3-month period which had directly preceded his discharge . While a witness herein, he contended, however, that these refusals could not legitimately be considered serious derelictions of duty, since ( 1) he had, already, completed a long, full day's work ; (2) he had, when requested to make these deliveries, pleaded fatigue, plus his desire to spend some time with his family; and (3) some of Respondent's other drivers, who had previously returned from their regular runs or were' due back shortly, could have handled the particular late delivery more conveniently. Respondent's specific contentions that , inter aka, Gold's persistent tardiness, plus his personal decisions to withhold cooperation when requested to make late deliveries, contributed to Respondent's decision regarding his dis- charge will be considered further within this Decision. General Counsel's reflexive contention , previously noted, that Respondent's congery of proffered justifications for Gold's dismissal should be considered pretextual will, likewise, be reviewed hereinafter. (3) Everett Schmidt's discharge Everett Schmidt , like Ronald Gold, was terminated during the afternoon of October 17, following the conclu- sion of his day's work. He received his notice of termination and final check, however, from Pete Smith, Respondent's produce buyer. Schmidt's testimony with regard to their conversation, which stands in the record without contradiction, reads as follows: He [Smith] came up to my truck as I was unloading my empties and he handed me an envelope and he said we've got to let you go. I said why, did I do something wrong? He said, no, just that the company is in bad with the market-the L.A. market. He said that they were running short on money and I better get down and get this check cashed real quick because he knew there was money in [there] right now to pay the payroll and they were going to keep Frank Chaffee-I asked first if he had let anybody else go and he said, yes, they let Ron Gold go earlier. He said they were going to keep Frank Chaffee on because he was senior man. He said it would only be a short time. He didn't know how long they would keep going bad. Despite Respondent's purportedly straitened financial circumstances, so Schmidt testified, the firm had hired a new delivery driver earlier that very day. The present record does indeed reflect such a new driver's hire; Respondent's proprietor testified, however, that he had been hired the day before Schmidt's termination. The new driver, Ron Hernandez, had, so Rudy and Quillan claimed, been "introduced" when he reported, around 5 o'clock; Schmidt had been requested to provide Hernandez with a warehouse tour and , likewise, to take him along when he made his regular delivery run. The driver testified categorically that he had complied with these directives. Respondent contends contrariwise that Schmidt had not taken Hernandez with him, when he made his first morning delivery run, but that he (Schmidt) had left Hernandez standing on the dock. Further, Respondent contends that Hernandez had been distressed by Schmidt's presumptive neglect; he had considered Schmidt's conduct a racial slight ; he had complained to Respondent's proprietor ; and his complaint had, partially at least, contributed to Rudy's determination that Schmidt should be discharged. Respondent's contention, in this connection, will be considered further, hereinafter. When queried, by Respondent's counsel, with respect to whether he had been hired for "temporary" service, Schmidt proffered a categorical denial . He conceded, however, that, both before and during his period of service in Respondent's hire, he had filed job applications with various other possible employers ; Rudy had been notified with respect to his previously filed applications when he was hired ; and Respondent's proprietor had concurrently been told he might be "leaving [at] any time" should he receive another job offer with a desirable pay scale. Respondent's present contention-that Rudy's lack of certainty regarding Schmidt's willingness to consider his position "permanent" had, likewise, been a contributory factor when the latter's termination was being considered- -will be reviewed, together with the firm's presumptively proffered further contentions , hereinafter. b. Respondent's defensive presentation (1) Rudy's purported declarations regarding Respondent's possible unionization Respondent's proprietor, so the record shows, has in the past been a Teamsters Union member; currently, however, he considers his membership lapsed. While a witness, he declared that, throughout the 17-month period between the date when he became Respondents proprietor and the date when this case was heard, unionism was a subject which "we have always and still do" discuss openly. According to Rudy's testimony, which his warehouse manager corrobo- rated, Respondent's drivers have never been "discouraged" from participating in such discussions . Respondent's proprietor declared, candidly, that: Ultimately it always came about talking about union- ism because of the fringe benefits. The insurance plan in particular. In this connection, Rudy conceded that he had, several times, told various employees he would "close the doors" before going union . When requested to describe the circumstances under which he made such statements, Respondent's proprietor declared that they had been made within a conversational context calculated to convey his belief that Respondent's financial condition would "force" such a closure, should the firm become unionized. He testified, further, that he had made such statements while "under strain" generated by his business problems, and that he was "normally upset" because of his financial difficulties. Respondent's proprietor conceded, further, that, follow- ing Roadhous' report with respect to Business Representa- tive Musser's telephone call, he had queried various employees with regard to their union sympathies. However, 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when requested to report whether some of his drivers had, then, committed themselves "for" or "against" unioniza- tion, Rudy declared: I really don't care for the word "for" or "against" personally. These people that we are talking about have always been good union employees. . . . Anyway they are good union employees . I have always been a good union man. We all believe in unionism as a whole. Now when one of the fellows [makes] a statement I don't like the Union, I don't think they are really meaning I don't like the Union, it is something they can do with or do without. It's the fringe benefits that they need and that they want. More particularly, in this connection, Rudy was queried with respect to Gold's testimony regarding their conversa- tion about unions shortly before the driver's October 17 discharge. He conceded that Gold had , then, been questioned with respect to what he thought about unions. Further, he declared his readiness to concur "generally" with Gold's testimony regarding the substance of their conversation. Respondent's proprietor declared, further, that: The whole story was basically brought up, it was generally concerning the union . . . benefits which are very important to all family men [,] and I don 't believe you can beat their fringe benefits. Throughout his testimony, however, Rudy proffered repeated declarations of concern-which he had conceded- ly sought to convey during his prior discussions with various company drivers-that Respondent could not "afford" unionization, because his firm could not finance presumptively high-cost Teamsters Union benefit pro- grams. (2) Ronald Gold's discharge With respect to Ronald Gold, Respondent's proprietor cited four factors which had, so he contended, contributed -A-a- his determination that the driver's discharge was warranted. First: He declared that Gold, throughout a number of months which preceded his termination, had frequently been significantly tardy when reporting for work; and that his persistent habit of late reporting had created both business and employee morale problems . The present record reflects a contention , bottomed upon Warehouse Manager Quillan's testimony, that Gold had frequently reported between 45 minutes and 2-1/2 hours late. (In this connection, Respondent's proprietor testified, with Quil- lan's corroboration, that, when Gold reported late, the firm's warehouse manager, or Gold's fellow drivers, had to gather from stock, segregate, and make ready his prospec- tive delivery loads on Respondent's warehouse dock, so that he could quickly load his truck and make a timely departure ; but that their involvement with respect to such tasks prevented their timely departures and generated disaffection. Further, Respondent's proprietor declared that sometimes Gold's tardiness had delayed his departures sufficiently to prevent him from servicing the firm's Cucamonga, California, customers, who were supposed to be serviced on his route.) Respondent's witnesses testified further that Gold had been sometimes chivvied, sometimes reproached, and sometimes reprimanded with respect to his tardiness on numerous occasions ; Respondent's proprietor had several times volunteered to provide him with "wake-up call" service, should he (Gold) consider such a service necessary or helpful ; he had sometimes been called ; he had further been warned, on two occasions at least , regarding his possible discharge ; but he had maintained his pattern of frequent late reports, nevertheless. (Some testimony prof- fered in Respondent's behalf, which Gold was not recalled to dispute, warrants a determination , which I make, that, when reproached or reprimanded, he had, sometimes, said he was sorry, but had, sometimes, replied defiantly, "If you don't like it, you can fire me." While a witness, Gold conceded that he had "probably" replied in these terms, once, when reproached for tardiness by Respondent's proprietor. Rudy, for his part, conceded that, before October 17 specifically, for various business reasons, he had been reluctant to satisfy Gold's challenge.) The company's regular work schedule, so Rudy and Quillan testified, required Respondent's four "general delivery" drivers to report by 3 o'clock on Monday mornings for the purpose of preparing various school deliveries ; by 5 o'clock on Tuesdays , Wednesdays, and Fridays; between 3 and 4 o'clock on Thursdays , depending upon the volume of school deliveries required; and by 7 o'clock on Saturday mornings . However, no formal "check in" procedures, whether by timeclock or signup sheets, were followed ; Respondent's warehouse manager merely noted, personally, whether the firm's drivers were reporting as required. According to Respondent's proprietor, Gold rarely reached the firm's warehouse when required, with particular reference to Respondent 's early Monday and Thursday schedule. Second: While a witness, Rudy claimed, with Warehouse Manager Quillan's corroboration, that Gold sometimes refused to make belated deliveries, following the conclu- sion of his regular daily delivery runs . With respect to one such refusal, which had allegedly taken place within a month or two before Gold's termination , Respondent's proprietor testified as follows: There was an emergency delivery called in. There were no other drivers at the dock and none other expected back and he was the only man there . The delivery had to be [made ]. Mr. Quillan went to [Gold] and asked him to make the delivery and he refused . Now that was one of the mornings when he was late on the job. If I am not mistaken, that was-he was in about 6:00 o'clock that morning. And it was about 11:15 or 11:20 when this occurred . Mr. Quillan came in to me all upset about it and he said I don't know what to do, we have to get the delivery made. So I went out personally and I said Ronnie, would you please take this delivery out, it has to go. The guy called in and he is out of merchandise. I then turned around and walked back into the office and I was in the office approximately 20 minutes and I came back out and the order . . . was sitting right directly outside the office door . . . And BEN HUR PRODUCE 75 when I walked out there I said, Bob, how come this stuff is still sitting here and he said Ronnie wouldn't take it and he went home. The company's testimonial presentation, considered in totality, reflects a contention that Gold, throughout his period of service, had refused to make such late deliveries several times ; two such refusals, so Rudy declared, had been reported by Respondent's warehouse manager within the 3-month period which preceded the driver's discharge. Third: Rudy's testimony further reflects a contention that Gold frequently displayed a moody, grouchy "atti- tude" while at work, which got progressively worse. While a witness, Respondent's proprietor first described Gold's behavioral reactions as surly and reflective of self-hostility or guilt feelings ; he conceded, however, that he lacked the vocabulary to characterize Gold's reactions precisely. When requested to particularize with respect to Gold's behavior, however, Rudy testified as follows: Well, like when he was late for work. One example is he would-the excellent driver that he is-he would get in too much of a hurry. He would throw a lug of tomatoes down on the ground and I don't know if you know what that does to a lug of tomatoes if you throw it down. We keep coffee on the premises for the people that are working there. He would come in and he would grab the cabinet open and he would throw it open and he would go in there. . . . He would slam the closet shut and he would walk outside and then he would start throwing the merchandise around again. In this connection, Respondent's proprietor further re- called, Gold would sometimes repeat his challenging statement, previously noted, that, should Respondent's management find his conduct unlikeable, they could discharge him. Fourth: Rudy's testimony reflects some personal knowl- edge with respect to Gold's marital difficulties which, so Respondent's proprietor feared, might modify his on-the- job behavior prejudicially, impair his generally congenial relationship with company customers, and thereby damage Respondent's business . Rudy, so he testified, was con- cerned about Gold's marital problems, discussed them with the driver, and volunteered to help, should his help be desired. His testimony, with respect to further develop- ments, reads as follows: ... it was a matter of weeks, I think, prior to when he was no longer with the company [,] he had a problem with his Mrs. We discussed it . . . and I asked him if there was anything I could do to help him... . On Friday, Ronnie came to me and said I hate to ask you, he says, but I've got a chance to reconcile with my wife and he said I would like to get off early and I said sure . He was using the company truck at that time and I asked, I said, one favor that I want to ask you, [a customer ] Lord Charley's [load] is sitting here on the dock. Would you deliver that on your way home and he said sure. . . . And he ran it on his way home... . If I am not mistaken it was the Monday following .. . I approached him that morning and I said, Ronnie, how did it work out; did everything work all right? He said hell no, he says, it is this G.D. job. He says I've got to agree with my wife. Igo home grouchy. I said, G.D., Ronnie, it isn't that you go home that way, you come to work that way, And I turned around and walked off. While a witness, Respondent's proprietor declared that this conversation, capping Gold's previously demonstrated on- the-job deficiences, constituted "the straw that broke the camel's back." He testified that it generated the final "decision in [his] mind," which, however, he was not yet prepared to effectuate, that Gold should be discharged. More particularly, he became persuaded, so he claims, that Gold was actually blaming Respondent for his marital problems; his sour "attitude" would be "bound to . . . rub off" on the firm's customers ; and Respondent's business would suffer. Substantially, Respondent concedes herein that Gold's various work performance deficiencies and general behav- ior patterns, considered separately, might not have generat- ed a discharge decision. Indeed, with these several considerations disregarded, Rudy's testimony reflects repeated concessions that, otherwise, he considered Gold a generally "excellent" worker. Taken in conjunction, however, the driver's four-fold demonstration of poor performance and questionable behavior, so Respondent's proprietor presently contends, he finally overcame his reluctance, generating a so-called mental readiness, to consider Gold's termination. (3) Everett Schmidt's discharge With respect to Everett Schmidt, Respondent's proprie- tor likewise cites a congery of three motivational factors which, so he presently contends, contributed to his determination that this driver's dismissal, concurrently with Gold's, would be warranted. First: Schmidt had been hired by Roadhous, Respon- dent's office manager; the latter, so Rudy testified, had reported that Schmidt had previously filed several job applications with other prospective employers, and would merely remain with Respondent temporarily. Warehouse Manager Quillan, whose recitals corroborate those prof- fered by his superior, testimonially reported statements by Schmidt that he was, indeed, looking for other work; that he was currently filing applications with other prospective employers; and that he would leave, should he procure another position. (Quillan further testified that during his period of service Schmidt sometimes stopped for the purpose of filing applications with other employers while making his regular route deliveries. Respondent's witnesses, however, have proffered no factual basis for Quillan's charge; nor have they buttressed the charge with circumstantial details. While a witness, Schmidt categorically denied stopping, during his delivery runs, to file job applications; he did, however, concede that he had borrowed a company truck once, with permission, for transportation when going to a job interview with another prospective employer. Upon this record, Respondent's charge, that Schmidt filed job applications with other employers on company time, cannot be considered substantiated.) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Previously, within this Decision , Schmidt's testimonial concession, substantially, that he did not consider his produce delivery work with Respondent herein a truly "regular" or "steady" position has been noted. Respon- dent's proprietor contends, now, that his business could not be maintained "properly" with a driver's threat of possible resignation, upon little or no notice, perpetually present. Second: While a witness, Rudy contended, with his Warehouse Manager's general corroboration, that Schmidt had, like his fellow dischargee, sometimes refused to make late deliveries. In this connection, however, few circum- stantial details have been provided ; Rudy testified, merely, that: ... all I know is when I went out there [to Respondent's dock] the orders was sitting on the table and I asked why they hadn't gone out on delivery and the man [Quillan ] said somebody wouldn't take them.... Anyway that's what happened on several occasions-there was more than several occasions. Bob Quillan would-come into the office and he would be all upset. That Everett Schmidt would not take deliveries out that he was told to take out [,] and the statement that Everett would generally make was I have already been down that way; I am not going again. Further, Rudy testified that Office Manager Roadhous once told him Schmidt might resign, should he (Rudy) get too "upset" about refusals to make deliveries. Third: Previously, within this Decision, reference has been made to Schmidt's purported refusal to take a newly hired driver, Ron Hernandez, for a morning trip, so that Hernandez could become familiar with his (Schmidt's) delivery route . Schmidt's testimony reflects his present belief that Hernandez had initially reported for work on the very day of his (Schmidt's) discharge ; Rudy testified, however, that Hernandez had reported 1 day before Schmidt's termination, and that the driver's so-called refusal had taken place then . While a witness, Quillan reported that Schmidt, who had several times previously taken new drivers on route tours , complained when requested to show Hernandez his route ; thereafter, so Quillan reported, Schmidt had left Respondent's dock at 7 o'clock, leaving Hernandez behind. (Schmidt's denial that Hernandez was, thus, slighted, has been noted, previously, within this Decision. The driver contended, without qualification, that Hernandez had been taken for a route tour.) Schmidt, concededly , had returned for a second delivery load between 10 and 10 : 30 that morning ; Quillan subsequently heard from Respondent's proprietor, so the warehouse manager's testimony shows, that Schmidt had taken Hernandez for a route tour during his second, or some subsequent, delivery run. With matters in this posture , Respondent's proprietor, when requested to summarize his motivation for Schmidt's discharge, contended that his lack of certainty regarding the driver's willingness to remain in Respondent's employ had been "partially" determinative . He further testified: Then, in our particular business it's awfully hard and very expensive to break someone in to the produce business . . . how to lift up a carton of lettuce and how to handle a lug of tomatoes or lug of peaches or whatever, so it is in good condition by the time the customer[s] themselves receive it . Both Everett and Ronnie-both of them-actually are excellent delivery men. They are excellent delivery men but as our business grew and expanded and with things going on like the threat-in other words a threat hanging over your head that the driver may be here today and gone tomorrow. I mean as good as a driver may possibly be, its awfully hard to try to operate . . . rationally having this over your head. So that plus the fact that-which had been building up in me as far as Everett not taking deliveries out when they came in and what actually brought it to a head , was that morning when hejust flat refused to break in another driver .who we wanted to teach the produce business and left him there. Rudy, however, did not discharge Schmidt personally; he testified that he didn't like Everett and hadn't wanted to talk to him. Respondent's proprietor could proffer no testimonial justification, himself, for Produce Buyer Smith's failure to provide Schmidt with a full , candid statement of Respondent's discharge rationale, when the driver was given his final check. Smith was never summoned for that purpose ; his failure to testify, herein, has neither been questioned nor discussed for the record. c. General Counsel's rebuttal General Counsel's presentation, herein, reflects two testimonial proffers, through Mrs. Galbraith, Respondent's former bookkeeper, clearly calculated to rebut Respon- dent's various defensive contentions, which have been noted. First: Mrs. Galbraith testified without contradiction that shortly before noon she was requested to prepare full weekly paychecks, for both Gold and Schmidt, at her earliest convenience. Within a short time thereafter, however, she went to lunch. Then, she recalled: [W]hen I got back from lunch-I asked Mr. Rudy if he still wanted me to make their checks out and he said no, I have already done it . I had to get them out of here. According to Mrs. Galbraith, this terminated their conver- sation. Respondent's proprietor, while a witness, proffered no denial ; neither did he provide an explanation for his purported final remark. Second: More significantly, however, Mrs. Galbraith testified that, within a day or two following these disputed discharges, she was told, by Mrs. Rudy particularly, why Gold and Schmidt had been terminated . With respect thereto, Respondent's former bookkeeper testified: She [Mrs. Rudy] came in as she very often did in the afternoon and she greeted me and she said how are you, Ethel, and I said I am cross and I am tired because I am way behind in my work , Arthur [Rudy ] has been out so much and I have had to answer the telephone and my work is way behind. She said, Ethel, I am very sorry but Arthur had to go and see his attorney and his BEN HUR PRODUCE 77 attorney told him to get back here to the warehouse and pay those boys off [or] the union would get him. So he'had to be gone. One or two days later, so Mrs. Galbraith testified, Mrs. Rudy's comments were substantially repeated. While Mrs. Rudy was standing in the open doorway between Mrs. Galbraith's office and her husband's directly adjacent office, Respondent's former bookkeeper recalls: She just again asked me how I was and again she repeated to me that she was very sorry that I was so far behind in my work because Arthur had to be out of the office but that he did have to see his attorney and there was no getting around it and he went to see him and he told him to get back and pay Ron Gold and Everett Schmidt off [or] the union would get them .... Later in the day after Mrs. Rudy had left, I went in to Arthur and I said, do you realize, Arthur, that your wife is broadcasting the fact that you let those two boys go because of the Union? And he said, yes, Ethel, I do.... He shook his head. . . . Up and down. When subsequently questioned by Respondent's counsel, Mrs. Galbraith conceded that Mrs. Rudy seemingly possessed a somewhat volatile temper. She was queried then with respect to whether she considered Mr. Rudy's "up and down" head nods calculated to convey his consensual agreement with Mrs. Rudy's remark, or merely calculated to suggest that he could not control her. Mrs. Galbraith declared, "I would say he agreed with her." Respondent's former bookkeeper was asked, then, what had led her to that conclusion. She replied: Because he heard her and he was pretty down by then. I can tell you. I know Arthur Rudy pretty well. . . . He was pretty down. He felt, you know, that 'everything, --in other words he expressed to me [,] if you would like'to know, that he felt like the whole world was tumbling around him, that he didn't know what he was doing wrong all the time. Substantially, General Counsel's representative contends i--if I grasp his "theory of the case" correctly-that these "hearsay" concessions, chargeable to Rudy and his wife as Respondent's coproprietor, should be considered sufficient to persuasively negate the firm's several defenses herein; they call, so General Counsel would presumably claim, for a determination that Respondent's proffered multiple justifications for discharging Gold and Schmidt practically simultaneously must be considered pretextual. d. Respondent's rejoinder Respondent's proprietor was never questioned, within the present record, with regard to Mrs. Galbraith's testimony that following her October 17 return from lunch he had said he "had to get [Gold and Schmidt] out" from Respondent's premises. That testimony, therefore, stands without contradiction. Further, Respondent's proprietor, herein, has proffered no challenge with respect to Mrs. Galbraith's testimony purportedly detailing Mrs. Rudy's repetitive comments. When queried, however, with respect to whether he had "agreed" with Mrs. Rudy's statements, Respondent's proprietor noted a flat denial. Respondent's counsel then asked Rudy whether he could explain why his wife had made the statements previously noted herein. (General Counsel contended that such a question would call for a witness-chair conclusion with respect to Mrs. Rudy's prior subjective state of mind; his objection was sustained.) Respondent's counsel, however, proffered no rephrased question drafted to pursue this particular line. Rudy was, rather, requested to detail the circumstances which had persuaded him to consult counsel, with particular reference to his proposed discharges, together with his counsel's proffered "advice" with respect thereto. Respondent's proprietor testified: Well, I had two purposes. One purpose, I had just received a letter in the mail from an attorney that my wife didn't get along with [,] pertaining to our [in]corporation papers which he had filled out [,] but they had never been signed and submitted. He has $200-300 of our money that we had to put up at that particular time . . . and I wanted to get advice on this [,] plus I had never really been an employer and I didn't know exactly what my rights were as an employer. I knew that both Everett and Ronnie were on withdrawal cards from the Teamsters, but I didn't know whether this would involve the Teamsters organization as a whole or whether it would involve the Labor Board or anything else. I had no idea. I was just in the dark. So I had to get some advice and I figured that was the place to go.... The advice I got to do-the advice I got is to do whatever I thought was right. As far as the [in]corpora- tion papers, I was advised to sit on them for a while and not submit them. [Emphasis supplied.] Shortly after proffering this direct testimony, Respondent's proprietor was queried further, by General Counsel's representative, regarding his consultation with counsel. His testimony with respect thereto, during cross-examination particularly, reads in material part as follows: Q. Why did you call the [attorney]-you are aware as a former employee-that an employer can fire an employee for cause, correct? A. Then I don't know why I am here. Q. Why did you call your attorney to inquire whether you could fire these two individuals? [Objec- tion; sustained] JUDGE MILLER : You mentioned that there were two matters discussed during your call [upon] your attor- ney.... First [,] the matter of these [in]corporation papers . . . and secondly [,] the question as to what your rights as an employer were in the event-with respect to these two men. Now had anything happened in your business that led you to decide to ask your attorney that second question? TIME WITNEss : Yes, sir. The situation in my mind as having made a decision in my mind to let them go. In other words as the gentlemen said, the straw that broke 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the camel's back on either or both of them. With Ronald it was the day that he told me that he was actually [,J in so many words, blaming the company itself for his marital problems and in my mind I figured now after what we have been through together, if he is assuming that attitude, it's bound to be-to rub off on the customers and it is going to be bad for the business. With Everett Schmidt when he refused to take that man out to break him in . . . to replace Ronald Gold. * * * Q• (By Mr. Zigman): Do you ordinarily call an attorney when you are thinking of terminating an employee? [Objection; sustained] THE WITNESS: I was just going to say I never fired anybody. I don't know. Q. (By Mr. Zigman): You never had any drivers that worked for you at Ben Hur that you discharged? A. I'm afraid if I ever had to fire anybody I would chicken out. Q. So it is your testimony that since there was a possibility of terminating two employees, you decided to check with your attorney for that? A. Yes, sir. Q. And then you also testified that you weren't sure about their status with withdrawal cards[.] [How] did that come into play when you were talking with your attorney? A. Only to the point as a new employer, I don't know what I am supposed to do or what I am not supposed to do and if you knew my record of accidentally getting into trouble, you'd understand that everything we have in the world is invested down there. It's a real tight rope. Q. Am I correct in phrasing this that you felt that the fact that these men may have had withdrawal cards from the union may have had some effect upon whether or not you could terminate them? A. Yes, sir, I felt there might be a possibility. Upon this record, Respondent would presumably contend that Mrs. Rudy had really misstated the substantive "advice" which her husband had received from counsel; that Respondent's proprietor had never manifested his concurrence with her mistaken representations; and, therefore, that Mrs. Galbraith's testimony, properly con- strued, reflects no binding "admissions" chargeable to Respondent's proprietors. Rudy's proffered justification for both discharges, therefore, should, so Respondent's counsel would presumably suggest, be considered meritori- ous. C. Discussion and Conclusions 1. Interference, restraint, and coercion The present record, considered in totality, fully warrants a determination, consistent with General Counsel's conten- tion, that Respondent's proprietor, following Office Man- ager Roadhous' report with respect to Business Represent- ative Musser's telephone call, questioned various company drivers with regard to their union sympathies. Further, Rudy conceded while a witness that, both before Musser's call and thereafter, he had, more than once, told his firm's workers he would "close the doors" before dealing with Complainant Union herein. These questions and declara- tions clearly transgressed permissible limits. Rudy's testimony-wherein he conceded questions calculated to solicit statements with respect to union sympathies, which had been directed to Ronald Gold particularly and various other drivers-may well reflect, when taken at face value, conversations which took place within a relatively "free and easy" context, between persons who considered their views relative to unionism generally compatible. However, Rudy's questions, within my view, cannot properly be considered privileged merely because his listeners may have considered him a good "union" man, like themselves. His questions, concedely, followed Rudy's knowledge with respect to Business Representative Musser's telephone call; in Ronald Gold's case, particularly, Rudy's conversational gambit followed Musser's subsequent designation card solicitations. Res- pondent's drivers could reasonably conclude, therefore, that their superior's direct questions, calculated to probe their union sympathies, derived from something more than a mere conversational or casual interest regarding their sentiments "for" or "against" self-organization generally. Further, Rudy's queries were never, so far as this record shows, pursued with due regard for those "safeguards" which, within this Board's view, could conceivably have rendered them statutorily privileged. Compare Struksnes Construction Co., Inc., 165 NLRB 1062, 1063, (1967); Blue Flash Express, Inc., 109 NLRB 591, (1954), in this connection. A determination seems clearly warranted, therefore, that Respondent's proprietor, when he conced- edly questioned various company drivers regarding their union sympathies, did interefere with, restrain, and coerce such employees with respect to their exercise of rights statutorily guaranteed. Further, Rudy's conceded comments with respect to his firm's possible closure, should he find himself required to bargain with Complainant Union herein, likewise call for Board proscription. The present record, considered in totality, does warrant a determination, which I make, that Respondent's proprie- tor, when he learned that Complainant Union might be seeking representation rights, became seriously disturbed and distressed. I find it conceivable, certainly, that Rudy and his wife would be concerned, fearful that their substantial business commitments-measured in time, effort, and money-might be endangered. Without a doubt, Respondent's proprietor must have been worried, following Business Representative Musser 's telephone call, that a prospective demand for Complainant Union's recognition and collective bargaining might circumscribe his freedom to conduct business, raise his costs, and compromise his firm's competitive trade position. Such concerns, however, provide no license for statements or conduct-calculated to counter a labor organization's BEN HUR PRODUCE 79 campaign for representative status-which transcend permissible limits. The National Labor Relations Act grants workers self- organization rights; the right to form, join, or assist labor organizations ; and the right to bargain collectively through representatives of their own free choice. When workers pursue these rights-through their "concerted activity" within lawful bounds-concerned employers may not react with threats of reprisal or force, promises of benefit, or coercive conduct. Upon this record, there can be no doubt that Rudy's conceded comments, with respect to closing Respondent's doors, did-within their total context-carry a coercive thrust, statutorily proscribed. Respondent's defensive presentation reflects a conten- tion that Rudy's comments were calculated to suggest a possible business closure which might be "forced" because Respondent lacked the financial resources to carry high- cost Teamsters Union benefit programs. Nevertheless, counsel's suggestion-that Rudy's several references to business closure, within such a conversational context, should be considered mere prophecies or predictions- can- not conclude the matter. See N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617-618 (1969) in this connection. Therein, the Supreme Court, having noted the firmly established "free speech" right of concerned employers to communicate their views, pointed out that such a right to communicate cannot outweigh the coequal right of workers to associate freely, which the statute guarantees. It declared further that: ... any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendancy of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear ... . The Court, then, set forth certain rigorous standards, pursuant to which the impact of any concerned employer's stated views, when they constitute predictions regarding the consequences of unionism, might properly be evaluat- ed. In this connection, the Court declared: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisals or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control. . . . We therefore agree with the court below that "conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." With these standards for guidance, Rudy's concededly impetuous statements regarding the possibility of plant closure, within my view, cannot be considered statutorily or constitutionally privileged. Rather, I find such state- ments, within their total context, reasonably calculated to generate a conviction, within his listener's minds, that Respondent's continued existence, together with their jobs, would require their abstention from self-organization. That message, so I find, constituted a statutorily proscribed threat of retaliation, reasonably calculated to interfere with, restrain, and coerce Respondent's workers. 2. The discharges a. Respondent's purported concessions With respect to both discharges now under considera- tion, Mrs. Galbraith's testimony, detailing certain hearsay concessions purportedly chargeable to Respondent's pro- prietor and his wife-which, so General Counsel contends, persuasively reveal Rudy's presumptively "true" motive -must first be considered. Mrs. Rudy's statement: Previously, within this Decision, Mrs. Galbraith's witness-chair recitals-which reflect a purportedly crucial concession volunteered by Mrs. Rudy, Respondent's coproprietor-have been noted. Substantial- ly, Mrs. Galbraith testified, so the record shows, that, during two separate conversations, Mrs. Rudy had report- ed her husband's receipt of legal counsel that he should "pay [Gold and Schmidt] off" before Complainant Union could "get" him. Since Arthur Rudy and Mrs. Rudy, together, concededly "own" the Respondent business, both must be considered parties with respect to this proceeding; Mrs. Galbraith's hearsay testimony with regard to Mrs. Rudy's presumptive "admission" was, therefore, held receivable. California Evidence Code, Section 1220, Ad- mission by Party. Though receivable, however, her testimo- ny, within my view, cannot reasonably be considered probative, for several reasons. First: Mrs. Galbraith's testimony reflects "double" hearsay; clearly, Mrs. Rudy's representation, which supposedly detailed the substantive legal counsel her husband had received, could only have been derived from a conversational recapitulation which he had previously provided. When a purported hearsay declarant-herein, Respondent's coproprietor-has, alleg- edly, proffered statements bottomed upon someone else's prior narrative declarations, that hearsay declarant's reportorial reliability must be taken on faith; clearly, it cannot be trial tested. General Counsel has made no showing, herein, calculated to warrant a determination that Mrs. Rudy was correctly summarizing a conversation held, without her presence, between her husband and his legal counsel. Second: Rudy's direct testimony detailing the legal "advice" which he was given, which I find credible in this connection, strongly suggests, contrariwise, that Mrs. Rudy may have misheard, misunderstood, or misremembered her husband's report with respect thereto. Mindful of this possibility, I cannot confirm a conclusion, based on Mrs. Galbraith's testimony solely, that Mrs. Rudy really conceded her husband's discriminatory motivation for both discharges challenged herein. Mr. Rudy's statement: General Counsel's testimonial presentation, however, presumably reflects a secondary 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention, bottomed upon Mrs. Galbraith's further testimony, that Respondent's proprietor-when confronted with a recapitulation of his wife's purportedly revelatory declaration-manifested his concurrence therewith, or his belief regarding its truth. (When a witness properly qualified testifies that a concerned party-with knowledge of some particular statement's substantive content-has, by words or other conduct, manifested his adoption thereof, or his belief regarding its truth, that party's words or conduct signifying concurrence may constitute a so-called adoptive admission receivable for the record. See California Evidence Code, Section 1221. Adoptive Admission, in this connection.) Mrs. Galbratih's testimony, so the record shows, reflects her recollection that Respondent's proprietor-when asked if he knew that Mrs. Rudy was "broadcasting the fact" that he had terminated Gold and Schmidt because of their union connection-replied, "Yes, Ethel, I do" while nodding his head. Subsequently, when questioned directly, Respondent's former bookkeeper declared her belief that Rudy was, thereby, signifying his concurrence with the substance of his wife's representations. I cannot agree. Despite Mrs. Galbraith's presumably sincere belief that her superior was signifying concurrence with his wife's reported statement, I derive no similar conclusion from her proffered recollections. When she repeated Rudy's words and described his concurrent gestures, her witness-chair behavior belied whatever conclusion a trier of fact might, otherwise, draw from her verbal testimony taken at face value. (While she was testifying, with respect to Rudy's reaction, I noted Mrs. Galbraith's demeanor closely. Respondent's former book- keeper, concurrently with her testimonial recital, tried to convey Rudy's facial expression, head movements, and gestures. Her facial expression conveyed somewhat down- cast resignation ; her nodding head was tilted slightly, with her chin lowered toward her chest, suggesting a sad, reluctant acknowledgement rather than a consensual avowal; her shoulders were slumped; her arms were held closely at her side, with her hands, palms upward, limply extended. Mrs. Galbraith was, within my view, capably and convincingly depicting her former employer's resigned concession, merely, that he knew what Mrs. Rudy had been saying; she was not depicting his reaffirmation with respect to the correctness of his wife's reported remarks.) When reconsidered, with due regard for her witness- chair demeanor, Mrs. Galbraith's testimony reflects no real conflict with Rudy's; I credit his witness-chair denial, therefore, that-when confronted with a recapitulation of his wife's reported declarations-he signified concurrence. The record, despite General Counsel's presumptively contrary contention, thus reflects no credible "adoptive admission" that Gold and Schmidt were terminated, consistently with legal "advice" received, for the purpose of forestalling Respondent's unionization. b. General Counsel's prima facie case With Respondent's reportedly conclusive "admissions" rejected as nonprobative, we confront this case's single remaining question: Has General Counsel satisfied other- wise his burden of proof, herein, with respect to Respon- dent's purportedly forbidden motivation for Gold's and Schmidt's challenged discharges? Their participation in Complainant Union's tentative, less-than-successful, card signup campaign cannot be considered disputed. And Respondent's knowledge, with respect to their union sympathies particularly, stands substantially conceded. (Respondent's proprietor contend- ed, when first questioned, that neither Gold nor Schmidt had ever discussed Respondent's possible unionization with him, directly. Further, he denied any knowledge that they had signed Complainant Union's designation cards. The record, however, fully warrants a determination, consistently with Rudy's subsequent testimonial conces- sions, that Schmidt had, within the month which preceded his discharge, openly professed his favorable views with respect to unionization; that Gold had, likewise, revealed his union sympathies when questioned; and that Respon- dent's proprietor knew both men were union withdrawal card holders, presumably well disposed toward Respon- dent's possible unionization.) However, with Respondent's purported concessions relative to motivation disregarded, General Counsel's contention that Gold and Schmidt were dismissed for statutorily proscribed reasons derives from circumstantial evidence merely. The record does reveal Rudy's worried concern regarding his firm's possible unionization; that concern had clearly been manifested, through statements and behavior herein found violative of law, when Rudy questioned his drivers regarding their "union" views, and concurrently declared he would "close the doors" before dealing with Complainant Union as their collective-bar- gaining representative. Further, the record does show that Gold and Schmidt were terminated less than I month following Office Manager Roadhous' report that Com- plainant Union's business representative might, conceiva- bly, mount a conventional designation card campaign. Though nothing, within the present record, would warrant a determination that Rudy considered Gold or Schmidt personally responsible for Complainant Union's presump- tive determination to seek representative status, the possibility that he may have considered their removal necessary to forestall Business Representative Musser's reasonably anticipated program certainly cannot be cavalierly gainsaid. Nevertheless, General Counsel's showing, thus summa- rized, presents nothing more than a circumstantial, prima facie, case. Respondent has contrariwise proffered a multiplicity of purported, circumstantially detailed, justifi- cations for both challenged discharges herein. Confronted with Respondent's defensive presentation, General Coun- sel, before he can prevail, must demonstrate preponderant- ly that Rudy's various proffered justifications for Gold's and Schmidt's terminations cannot stand scrutiny. Wheth- er they can, therefore, must now be considered. c. Respondent's motivation The question of whether a particular employee has been terminated, contrary to statute, wholly or partially because of his union or concerted activity can rarely be considered susceptible of easy determination. The principles which should guide judgments may not be in doubt, but 8(a)(3) BEN HUR PRODUCE 81 cases have normally been considered "difficult" cases. N.LR.B. v. Atlanta Coca-Cola Bottling Company, Inc., 293 F.2d 300, 3O&^(C,A. i, 1961). Necessarily, they call for basic determinations regarding the concerned employer's state of mind; nearly always, they present vexatious problems of motive and pretext. Therefore, resolution of questions with respect to claimed discriminatory discharges by any trier of fact calls for careful appraisals which must compass all the relevant facts and circumstances surrounding the questioned separations ; inter alia, recognition must be given the settled principle that, without some unlawful motive persuasively shown, the concerned employer's judgment with respect to a worker's termination cannot be challenged. "Manage- ment can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualifica- tion : It may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids." N.LR.B. v. McGahey, et al., 233 F.2d 406, 413 (C.A. 5, 1956). Of course, it is equally well established that the existence of some "justifiable ground for dismissal" provides no defense for a concerned employer, should that ground be found pretextual and not the moving cause. See N. L R B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956), in this connection. With due regard for the present record, considered in totality, I find myself constrained to conclude that General Counsel has failed to sustain his burden of proof herein. The basis for my conclusion may be shortly stated. Since, with matters in their , present posture, General Counsel cannot, within my view, rely on Respondent's purported "admissions" conceding that Gold and Schmidt were terminated for statutorily proscribed reasons, his conten- tion that they were both discriminatorily discharged must rest largely on weaknesses purportedly discernible in Respondent's defensive presentation. However, General Counsel has not, within my view, persuasively countered Respondent's multiple justifications for Gold's and Schmidt's challenged discharges. With respect to Respondent's proffered recapitulation of Ronald Gold's purported work deficiencies, certain por- tions of the testimonial record should be noted, particular- ly. First: Respondent's second most senior driver himself conceded that he had "occasionally" reported late for work. Though he noted pro forma denials with respect to Respondent's claim that he had reported late frequently, sometimes between 45 minutes and 2-1/2 hours later than he should have reported, Gold conceded that he had been asked, several times, whether he needed "wake up" calls, and that, despite his rejection of this proffered service, he had sometimes been called. Further, while denying that he had over been "reprimanded" for reporting late, Gold conceded that he had sometimes been greeted, when he reported, with sarcastic salutations clearly calculated to reflect Respondent's displeasure. Finally, he conceded that, when reproached by Respondent's proprietor, once, he had challenged the latter to discharge him. Considered in totality, Gold's concessions, within my view, warrant a determination that Respondent's proprietor and warehouse manager did have good cause for concern with regard to his persistent tardiness; that his deficiencies in this respect had generated business difficulties and morale problems; that his tardiness was-for a substantial period of time-tolerated, but never condoned; and that, taken in conjunction with his further deficiencies and questionable behavior previously noted within this Decision, his persistence in reporting late did, finally, contribute, significantly, to Rudy's subjective discharge determination. Second: While a witness, Gold likewise conceded that, when fatigued while at work, he had sometimes reacted crossly; Respondent's contention that he had frequently displayed moody, grouchy on-the-job behavior stands without a persuasive rebuttal. Third: When taxed with his purported refusals to make belated deliveries, Gold conceded two such refusals within the 3-month period which had preceded his termination. In this connection, Respondent's counsel queried Gold with respect to whether he had challengingly thrown proffered delivery invoices back on Warehouse Manager Quillan's table when refusing to make deliveries; replying, Gold first noted a denial, then said he could not recall such an incident, but finally conceded that he might "possibly" have done so. Fourth: Respondent's former driver substantially conceded discussions with Rudy regarding his marital difficulties. However, he did deny telling Respondent's proprietor that his "G.D. job" was making him grouchy. Despite Gold's denial, the present record, considered in totality, persuades me that Rudy's testimony with respect thereto, previously noted, merits credence. With respect to Respondent's claimed justification for Schmidt's discharge, likewise significant testimonial confir- mations can be found within the present record. First: While a witness, Schmidt conceded that he never had considered his produce delivery job a regular or steady position, which he proposed to retain. True, he may not have considered his position "temporary" since there had never been a consensual understanding that he would leave Respondent's hire by a definite, determinable date; regardless of semantics, however, there can be no doubt that Respondent's proprietor had been given good reason to believe that he might leave on short notice. Second: When taxed with having refused to make belated deliver- ies, Schmidt conceded that he had done so. With respect to one such refusal-several weeks before his October 17 discharge-he contended, merely, that his conduct should have been considered excusable, because the situation developed during midafternoon presumably following a full day's work, because he was tired, because the delivery involved a second order from a customer upon whom he had already called, and because another driver was scheduled to make a delivery in that customer's direction. Whether Respondent's warehouse manager should have, under these circumstances, refrained from requesting Schmidt to make a belated delivery need not be deter- mined; the driver's testimony, regardless of its tenor, fails to negate Respondent's claim that his refusal had generat- ed managerial concern. Third: With respect to Schmidt's purported refusal to take Driver Ron Hernandez for a route tour, during his first October 16 delivery run, the record reflects testimonial conflict. Schmidt flatly denied any failure or refusal to cooperate; Rudy and Quillan 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, contrariwise, that Schmidt had left Hernandez behind, when he made his first delivery trip. (Hernandez did not testify. I am satisfied, however, that Respondent's counsel and Respondent's proprietor made a good-faith attempt to procure his testimony; that he could not be reached while the hearing was in progress; and that Respondent's counsel relinquished his right to request a recess, for the purpose of procuring Hernandez' testimony, so that this case's disposition might be speeded. No derogatory inferences have been drawn, therefore, from Respondent's failure to produce Hernandez.) Upon the record herein made-coupled with my observation of Schmidt, Rudy, and Quillan as witnesses-I credit Respondent's, proffered version. Schmidt, so I find, failed or refused to take Hernandez for a route tour, at least during his first October 16 delivery trip. He may have done so later; nevertheless, Respondent's proprietor, within my view, could reasonably have considered his behavior questionable. I conclude, therefore, that Respondent's several prof- fered justifications for Gold's and Schmidt's terminations -unlike the reasons which a concerned employer prof- fered within another case which involved a purportedly discriminatory discharge-lo not "fail to stand" under scrutiny, N.LR.B. v. Dant & Russell, Ltd., 207 F.2d 165, 165 (C.A. 9, 1953). Respondent's drivers, while testifying herein, proffered various statements calculated to justify their conduct, or provide them with exculpation, relative to each situation wherein Respondent's proprietor had purportedly considered their work performance or behav- ior substandard. I cannot, however, draw-from their proffered testimony-the conclusion that Rudy's decisions with respect to their dismissal were so lacking in reasona- bleness as to warrant a judgment that his asserted grounds should be considered pretextual. Without a record basis more substantial than General Counsel's presentation herein provides, no determination would be justified, within my view, that Respondent's proprietor merely seized on certain facets of their work performance and job behavior to justify terminations, because their record in these respects provided a plausible pretext for retaliatory action calculated to penalize their pursuit of statutorily protected rights. True, Respondent's proprietor, mindful of their union connections, did seek legal counsel before effectuating his previously reached, subjective determination that these two drivers deserved discharge. Rudy's testimony, which I credit in this connection, will not, however, support a determination that he sought legal "advice" with respect to whether their work performance deficiencies provided a colorable justification sufficient to camouflage his determi- nation to discharge them because of the union sympathies. Rather, Respondent's proprietor-who had determined, previously, that Gold and Schmidt had finally overtaxed his forebearance-sought legal counsel with respect to whether their union connection should be considered a restrictive factor, which could or should prevent their discharge for cause. Respondent's proprietor was merely told, so his credible testimony shows, that he was legally free to proceed with whatever course of action he considered right. Upon this record, I cannot conclude, despite some suspicious circumstances, that Gold's or Schmidt's participation in protected union and/or concert- ed activity constituted a statutorily proscribed "moving cause" for their respective terminations. I will recommend, therefore, that General Counsel's complaint, in this connection, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above, occurring in connection with Respondent's business operations discussed in section I, above, had, and contin- ues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States; absent correction, such conduct, to the extent herein found violative of law, would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. In the light of the foregoing findings of act, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Ben Hur Produce, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. 2. General Teamsters, Sales Drivers, Food Processors, Warehousemen & Helpers Local 871, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's employees to membership. 3. Respondent's proprietor-by declaring his readiness to close rather than permit his business to become unionized, and by questioning various employees with regard to their union sympathies-interfered with, re- strained, and coerced his employees, with respect to their statutorily guaranteed rights. Thereby, Respondent en- gaged, and continues to engage, in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act, as amended. 4. General Counsel has not, herein, produced reliable, probative, or substantial evidence sufficient to justify a determination that Respondent's proprietor-when he discharged Ronald Gold, directed Everett Schmidt's termination, and thereafter failed or refused to recall or reinstate them---did engage, or presently continues to engage, in unfair labor practices affecting commerce, within the meaning of Section 8(a)(1) and (3) of the Act, as amended. THE REMEDY Since I have found that Respondent has engaged, and continues to engage, in certain unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, BEN HUR PRODUCE and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER1 Respondent, Ben Hur Produce, its owners, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining, or coercing employees, through interrogation, threats of business closure, or in any other manner, with respect to their exercise of rights which Section 7 of the statute guarantees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post, within its Upland, California, warehouse, copies of the attached notice marked "Appendix," and comply with the commitments set forth therein.2 Copies of the notice, on forms provided by the Regional Director for Region 31 , as the Board's agent, shall be posted, immedi- ately upon their receipt, after being duly signed by Respondent's representative. When posted, they shall remain posted, for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by^any other materials. (b) File with the Regional Director for Region 31, as the Board's agent, within 20 days from the date of this Order, a written statement setting forth the steps which Respondent has taken to comply herewith. I 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. 2 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 83 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing certain unfair labor practices. In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitments: The National Labor Relations Act gives all employees rights to engage in self-organization; to form, join, or help unions; to bargain collectively through representatives of their own free choice; to act together for collective bargaining or other mutual aid or protection; and to refrain from doing any or all of these things. We will not do anything that interferes with these rights. WE WILL NOT question our employees regarding their union sympathies or threaten to close our business should our employees become unionized. All of our employees are free to become or remain members of any labor organization, or to refrain from such membership, unless these rights are hereafter modified or limited, pursuant to a collective-bargaining contract negotiated and signed in conformity with the proviso set forth within Section 8(a)(3) of the National Labor Relations Act, as amended. BEN HUR PRODUCE (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted 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 compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 824-7357.