San Antonio Retail Merchants Association

SAN ANTONIO RETAIL MERCHANTS ASSN. 59 San Antonio Retail Merchants Association and inter- national Union, United Automobile, Aerospace & Agricultural Implement Workers of Ameri- ca-UAW. Case 23-CA-4980 January 7, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 28, 1974, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. We do not adopt the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(3) of the Act by discharging Mary Louise Arriaga. We think he misconstrued some significant portions of the evidence pertinent to Arriaga's discharge. Arriaga was a longtime, competent employee who, over a period of 22 years, has risen to a position where she was considered a "lead operator" in Respondent's credit bureau. She was assigned, in addition to her own work as a long-distance operator, the occasional task of investigating com- plaints and rectifying errors committed in her department. In August 1973, she began to be the object of complaints concerning her own work, and these complaints continued throughout the period of November 1973 to January 1974, during which she was instrumental in organizing her fellow employees into the Union which won a representation election on January 24, 1974. Aside from Respondent's coercive conversations with Arriaga and one other employee,2 as described in the Administrative Law Judge's Decision, Respondent committed no unfair labor practices during the organizational and pre- election campaign. Arriaga was,dischargedion January 28, 1974, after the election and after a flood of complaints about her work habits had culminated in two written complaints received subsequent to the election. They confirmed the fact that she had continued to mishandle her job after being repri- manded on several occasions for identical conduct. That numerous complaints were received concern- ing Arriaga's performance, from out-of-town credit bureaus who regularly call Respondent for credit reports from its locale, is undisputed; nor is it contended that these complaints were solicited by Respondent. Most of the complaints were that Arriaga, upon receiving a long-distance call request- ing a credit check, would put the caller on "hold" and keep her waiting for an inordinate amount of time at the expense of the long-distance caller. The Administrative Law Judge credited Zepeda's testimony that, after he received some complaints about Arriaga's practice of keeping incoming long- distance callers on "hold" for unusual periods of time, he watched her and saw that she would stop and talk to other operators while she was supposed to be looking for the appropriate credit files. He called this to her attention and she appeared, repeatedly, to be nonchalant about it. The Administrative Law Judge explains Arriaga's nonchalance by characteriz- ing Zepeda's admonishments as "mild." Such an explanation notwithstanding, it hardly seems strange that Zepeda's formerly lenient attitude toward Arriaga would be hardened by these episodes. The Administrative Law Judge discredited Zepe- da's testimony that, although the Respondent had received other complaints about its service, no complaints had referred to any specific employee except Arriaga. On the other hand, no evidence was produced that would suggest that other employees engaged in conduct comparable to Arriaga's. Even if Zepeda's testimony is not literally accurate, the record before us indicates that Arriaga was in a class by herself in repeatedly failing to abide by the required standards for handling incoming calls. In what is perhaps a suggestion that some of the complaints against Arriaga were cases of mistaken identity, the Administrative Law Judge notes that two employees credibly testified that they "frequent- ly" received calls wherein the caller confused them with Arriaga. Both testified, however, that whenever this happened they corrected the caller. In fact, the established procedure was for the operator on each side of the line to identify herself to the other for the purpose of keeping records of the calls. Significantly, there is no evidence that Respondent was ever informed that there was reason to doubt Arriaga's responsibility for the actions complained of. The allegation of discriminatory motivation is I The Administrative Law Judge inadvertently stated that Irma Marti- nez, one of General Counsel's witnesses, testified concerning a talk with Respondent's former manager, Tarin. Martinez testified about conversa- tions with Tann's successor, Zepeda, but not with Tarm. 2 One hundred and ten employees voted in the election. 216 NLRB No. 9 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arguable only because Respondent did not discipline Arriaga until after the Union won the election and Zepeda, had made a statement to her that could be construed as a threat to retaliate against her personally if the Union won.3 These facts, while they might be persuasive standing alone, are counterba- lanced by Respondent's receipt of the two final bona fide, written complaints from the managers of the sister credit bureaus with whom Respondent does the most business . The fact that these managers finally put their complaints in writing is itself indicative, and one of them expressly characterized the problem as "severe" and asked Respondent to take "corrective action." In these circumstances, we cannot find that the reasons assigned by Respondent for the discharge were pretextual and we conclude that the allegation of a violation of Section 8(a)(3) has not been proved by a preponderance of the evidence. 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 as modified below and hereby orders that Respondent, San Antonio Retail Merchants Association, San Antonio, Texas, its officers , agents, successors, and assigns, shall take the action set forth in said recommended Order as herein modified: 1. Delete paragraphs A, 1 and 2 and renumber present paragraphs A, 3, 4, and 5 accordingly. 2. Delete paragraphs B, I and 2 and renumber present paragraphs B, 3 and 4 accordingly. 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER JENKINS, dissenting: I cannot agree with my colleagues' conclusion that Respondent discharged Mary Louise Arriaga be- cause of complaints about her work performance. The credited evidence in this case, rather, leads inevitably to the conclusion that the real reason that Respondent discharged Arriaga was in retaliation for her union activity and that the reason assigned by the Respondent for the discharge was pretextual. My colleagues agree that Respondent violated Section 8(a)(1) of the Act when George Zepeda told Arriaga in effect that he would retaliate against her personal- ly if the Union won the election. The Union won the election on Thursday, January 24, 1974,4 and Zepeda, true to his word, retaliated immediately and in the most direct and conspicuous manner by discharging Arriaga on January 28, 1974, the second workday after the election. But Zepeda's threat to discipline Arriaga personally if the Union won the election and the consummation of that threat merely constitute a part of the great mass of credited evidence which establishes that the discharge of Arriaga violated Section 8(a)(3) and (1). A review of the credited evidence reveals that Mary Louise Arriaga was a well-regarded and competent employee of Respondent for 22 years. She had risen to a position where she was considered a "lead operator" and one of three primary long-distance operators in Respondent's credit bureau. She was so well thought of that Respondent had assigned her the additional task of investigating complaints and rectifying errors committed in the department in which she worked. Beginning in November 1973, Arriaga assumed a leading role in the Union's organizing campaign by arranging several meetings between the Union and Respondent's employees. At the second such meet- ing, on November 15, 1973, Arriaga was elected chairman of the organizing committee. On Novem- ber 26, 1973, Union Organizer Roy Hernandez spoke with Respondent's manager, T. Tarin, and told him that the Union had signed authorization cards from 80 percent of the employees and requested recogni- tion after a card check. Tarin was at first receptive to this method of determining if the Union represented a majority of the employees but later, after consulta- tion with his attorney, he notified the Union that it should secure recognition by an NLRB election. Thereafter, on November 29, 1973, Arriaga and employee Irma Martinez spoke with Zepeda, who succeeded Tarin as manager after Tarin retired on March 1, 1974. Both Arriaga and Martinez were wearing large union buttons stating that they were members of the Union's organizing committee. Arriaga told Zepeda that she did not want him to think the employees were out to hurt the Respon- dent, it was just that they wanted to better them- selves. Zepeda replied that he was disappointed that the employees were seeking outside representation rather than coming to management directly. The next day, November 30, 1973, Zepeda instruct- ed Arriaga to see Tarin in his office . Tarin told Arriaga he was disappointed that the employees were seeking outside representation and asked Arriaga what the employees wanted. When Arriaga described some of the things the employees wanted, Tarin responded by asking her why she had not come to him to ask for a raise. Later Tarin asked her how much she was making and then said that maybe something could be worked out without the Union. 3 On the other hand, if discipline had been administered to Arriaga 4 Respondent filed objections to the election which were overruled by before the election, it arguably could have been ascribed to a calculated the Regional Director and the representation case is now before the Board effort to defeat the Union in a separate proceeding. SAN ANTONIO RETAIL MERCHANTS ASSN. 61 Arriaga then told Tarin that this was not just between the two of them but that other employees were involved. Tarin then asked Arriaga who was on the organizing committee and also asked Arriaga to talk with the other employees and have them come to him to see what could be worked out. Arriaga then complained that Tarin did not permit employees who worked for the Company to be promoted. Tarin replied by asking Arriaga if she wanted to be a supervisor. She answered, "No, not now. You should have asked me that 10 years ago." The meeting ended. Later, Arriaga spoke with the other employees and called Union Organizer Hernandez who said that the meeting Tarin suggested would be all right if he could be present. Tarin would not agree to have Hernandez present and the meeting never took place., A few days later, on December 5, 1973, Zepeda asked Arriaga to come to his desk. The credited evidence shows that Zepeda told Arriaga "he did not want the Union, that he could talk with Tarin and tell him what he wanted. Tarin could write all this down and have his lawyer sign it, and we could have all we wanted without the Union. . . ." Zepeda then told Arriaga that Tarin would be reti ing soon and that the Respondent's board of directors had a meeting and they had named him the new manager. He went on to tell Arriaga that she could help him and he could help her, that she was the "one person that has a lot of influence on these girls and you can help me to disencourage [sic] them . . . against the Union." Zepeda also told Arriaga that he could make her a supervisor and increase her pay. Arriaga responded by telling Zepeda that there was no way she could discourage the other employees because she was the organizer and started the whole thing and that the other employees trusted her and elected her chairman of the campaign . Zepeda concluded by telling Arriaga that "if the Union wins, Mary Louise, I'm going to fight you, and I'm going to fight you with all I can." From the foregoing, and the credited evidence as a whole, it is readily apparent that Respondent was strongly opposed to having the Union represent its employees and that Respondent was fully aware of Arriaga's leadership role in the Union's organization- al activity. It is also clear that Respondent believed that Arriaga had a good deal of influence among its employees and as a result directed much of its effort at counteracting the Union's organizational activity by attempting to encourage Arriaga to abandon her support for and efforts on behalf of the Union. Thus Respondent hoped that by undermining Arriaga's support for the Union she would in turn use her influence to undermine the support for the Union among the other employees. In attempting to reach Arriaga, Respondent went so far as to offer her a supervisory position and an increase in wages and then, when Arriaga rebuffed Respondent's overtures, Zepeda threatened to retaliate against Arriaga personally if the Union won the election. In view of Respondent's attitude toward the Union, its knowl- edge of Arriaga's union activity, and its unlawful offer of benefits to, and unlawful threat of reprisal against, Arriaga, it is difficult to imagine a more clear and convincing case for establishing Respondent's discriminatory motivation when it discharged Arria- ga shortly after the Union won the election. Certainly the complaints about Arriaga's work performance do not counterbalance the picture presented by the above-described evidence. With a few exceptions, those complaints occurred following the advent of the union campaign and the majority of the complaints occurred prior to the respective offers by Tarin and Zepeda to promote Arriaga to a supervisory position and to increase her wages. It is also significant that, although Arriaga was aware that a number of complaints had been made about her work, Respondent did not formally warn her on any of these matters, nor did Respondent threaten her with discharge because of any derelictions in her work performance, as it had threatened her with discharge because of her union activity. Finally, it is significant that the final written complaint which Respondent would have us believe sealed Arriaga's fate consisted entirely of incidents which were the subject of earlier oral complaints and made no mention of any derelictions about which Respondent was not previously aware .5 Thus I must conclude that the reason assigned by Respondent for the discharge of Arriaga was pretextual and that the real reason for Arriaga's discharge was her union activity. S The majority's suggestion that any discipline adnumstered against Arriaga before the election could have been ascribed to a calculated effort to defeat the Union is misplaced inasmuch as there is no evidence , nor does Respondent contend, that it had decided to discharge Arriaga prior to the election because of any derelictions in her work performance. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence and arguments, the National Labor Relations Board has found that we violated the National Labor Relations Act. We have therefore been ordered to post this notice and carry out its terms. The National Labor Relations Act gives you, as an employee, certain rights, including the right to 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in self-organization and to form, join, help, or be helped by unions. Accordingly, we assure you that: WE WILL respect your above-stated rights under the National Labor Relations Act. WE WILL NOT interrogate our employees as to the persons who are members of the Union. WE WILL NOT attempt to discourage our employees from remaining members of the Union by making promises of benefit and threats of reprisal designed to have its employees abandon the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employees in the exercise of his or her right to self-organiza- tion. All of you are free to join or not to join the International Union, United Automobile, Aerospace & Agricultural Implement Workers of Ameri- ca-UAW, or any other union, as you see fit, without any interference, restraint, coercion, or discrimina- tion by us in any way, shape, or form. SAN ANTONIO RETAIL MERCHANTS ASSOCIATION DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This proceeding was tried before me in San Antonio, Texas, on May 7 and 8, 1974. The complaint, issued on April 3, 1974, based on a charge filed by the Union on February 4, 1974, alleges that the Respondent violated Section 8(axl) of the Act by interrogating employees concerning their activities on behalf of the Union; seeking to have employees persuade other employees to abandon the Union; promis- ing benefits and improvements in working conditions if they would abandon the Union; offering certain employees supervisory positions if they gave up support for the Union; and discharging employee Mary Louise Arriaga because she refused to abandon her support of the Union in violation of Section 8(aX3) of the Act. Respondent denied the commission of any unfair labor practices but admitted facts supporting the assertion of jurisdiction by the Board. Upon the entire record in the case and from my observation of the demeanor of the witnesses and the briefs filed by the parties I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT A. Jurisdiction During the past 12 months Respondent received gross revenues of $500,000 and during the same period it received gross revenues in excess of $50,000 for services performed for customers located outside the State of Texas. I find that the Respondent is engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. B. Description of the Company's Operations Respondent conducts a credit bureau in San Antonio, Texas, the principal function of which is to provide credit information on consumer charge accounts to individual merchants, to credit grantors such as banks, and to other reporting agencies or credit bureaus. The Company also performs collection services on behalf of merchants on past due accounts. The bureau consists of a number of divisions: the reporting division provides credit information; the collec- tion service division provides collection services. The functions of the reporting division are performed by telephone operators who receive inquiries from merchants, credit grantors, or other credit bureaus. This reporting division is made up of two departments: there are approximately 60 telephone operators who handle local inquiries and 5 operators who take care of long-distance calls. Three of the five long-distance opera- tors are primarily responsible for providing immediate consumer information as requested. These primary opera- tors take care of five lines on a rotary system. The other two are basically backup operators who generally update or revise records and then phone this information back to inquiring callers after such records have been updated. Each of the backup operators utilizes a straight line phone with a separate number. When needed to assist the primary operators the backup employees move to two other stations the phones of which are tied into the five-line rotary system. In all, Respondent employs about 111 employees. For the most part long-distance inquiries come from other reporting agencies or credit bureaus seeking information concerning service subscribers. The normal procedure for processing incoming long- distance calls is as follows: the inquiring operator identifies her firm or bureau and gives her name and/or operator number. The consumer information requested is described to Respondent's operator including the name of the consumer, his address, employment, and credit references. The Respondent's operator identifies herself by name and/or operator number in order to maintain a record of who handled the inquiry in the event some followup information or services becomes necessary. Upon receiving the inquiry, Respondent's operator puts the phone on "hold," pulls the consumer credit record from the master files and reports this information back to the inquiring operator. Respondent's consumer records are maintained alphabetically and are stored in the same room where the operators have their switchboards. In most cases, Respondent's operator secures the requested information while the caller waits on the line. Respondent has a rule which limits to three the number of credit reports that can be secured on a single call while the SAN ANTONIO RETAIL MERCHANTS ASSN. 63 inquiring operator "holds" for the information. If Respon- dent's operator is • not busy she may accept the inquiries, but the caller is not allowed to hold while the information is being secured. Instead, Respondent's operator will call back after noting the credit information requested. Inquiries involving larger numbers of credit reports on a single call are reassigned from the long-distance operators to other operators for handling. According to a timestudy of the Respondent's operations it was found that it normally takes 3 to 4 minutes for an operator to receive an incoming call, secure the record from the file, take it to her station, and report the information to the caller. The service subscriber is responsible for long-distance costs. Therefore all credit bureaus, including the San Antonio bureau, stress the importance of expediting all long-distance calls. In instances where a record cannot be immediately located,. Respondent returns the call at its expense. In the nature of Respondent's business, speed in handling long-distance calls is important. a right to form a Union." Z said he was disappointed that the employees were seeking outside representation rather than coming directly to management. On the next day, November 30, Z instructed Arriaga to see Manager Tarin. She went to see him in his office. He also said he was disappointed that they sought outside representation. He asked what the girls wanted. Arriaga told him they wanted a little better wages, some sick leave, either Saturdays or alternate Saturdays off and a little more retirement pay. Tarin said, "if I needed money, why hadn't I come to him to ask him for a raise." I replied, I said that he had always told me that he was my friend, and he knew my situation better than anyone else, being that I am the head of the household, and I have two boys . . . and that I wasn't going to come begging to him to pay me more money. And then he says, Well, how much - How much money do you want to make? . . . I said I would want to make at least a hundred dollars clear. III. THE UNFAIR LABOR PRACTICES A. Background The Auto Workers Union began its organizing campaign in November 1973.1 As the result primarily of the efforts of Mary Louise Arriaga, who arranged for union meetings to be held with Special Organizer Roy Hernandez, a series of meetings took place. The first meeting was on November 13; the second meeting was held on November 15 at which time the Union Organizing Committee elected Arriaga as chairman of the committee. On November 26 Hernandez went to Respondent's facility where he spoke to the Company's manager, T. Tarin. Tarin retired on March 1; he was succeeded as manager by George Zepeda hereinaft- er referred to as "Z." Hernandez told Tarin that he had signed union authorization cards from 80 percent of the employees and he requested recognition after a card check. Tarin at first was receptive to this method of determining if the Union represented a majority of the employees but later, after consultation with his attorney, he notified the Union that it should secure recognition by an NLRB election. The election (Case 23-RC-4038) took place on January 24, 1974, and resulted in the Union's receiving 61 votes with 49 voting against representation. Respondent filed objections to the election which were overruled by the Regional Director. This case is now before the Board for review. The representation matter is not before me. B. Respondent 's Independent Violations of Section 8(a)(1) After the day's work on November 29, Arriaga and Irma Martinez spoke to Z. Both employees were wearing large union buttons with the legend on the buttons stating they were members of the UAW Organizing Committee. Arriaga was the principal spokesman. She told Z that just because the employees were forming a union they did not want him to think they were out to hurt the Company. "It is just that they [sic] want to better ourselves, and we have And then he said, Maybe we can work something out without the Union. I said, Well Mr. Tarin, this is not just between you and 1. There are too many people involved, and I would have to consult with the organizing committee to see if they are willing to come in and speak with you... . And then he did ask me who was in the organizing committee. I told him, There is myself, there's Maggie Perez, Anna Maria Cantu, Irma Martinez, Mary James and Pearl Schriewer. Tarin then asked Arriaga to talk to the girls so they could come in here and "talk with me to see what we can work out." Arriaga then launched into a complaint that Tarin did not permit employees who worked for the Company to be promoted . Instead he hired young boys just out of high school to come in and be trained by the older employees. Whenever they had questions they came to the experienced girls and they then became supervisors . Tarin replied, "Well do you want to be a supervisor?" She answered, "No, not now. You should have asked me that 10 years ago." Arriaga spoke to the girls and called Hernandez who said such a meeting would be okay if he could be present. Ari iaga reported this information to Z. She also told Tarin on the phone what Hernandez had to say . Tarin said he could not have Hernandez present because then he would have to have his lawyer present also. The following morning Z asked to see Arriaga . They met alone in the back room in the lounge . Z told her he thought the girls made a mistake by not speaking to Tarin . No committee meeting with Tarin took place. On December 5, Z asked Arriaga to come to his desk. They were alone. Z told her "he did not want the Union, I All dates are in 1973 unless otherwise stated. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he could talk to Tarin and tell him what we wanted. Tarin could write all this down and have his lawyer sign it, and we could have all that we wanted without the Union and I told him that without the Union who would enforce these things that we wanted?" He then told Arriaga that Tarin would be retiring soon and that he would be taking over. Arriaga replied that Tarin had said he was going to retire for several years but had not done so and that she could not believe he would retire. Z said the board of directors had a meeting and they had named him and that I am to take over, and Mary Louise you can help me and I can help you. . . . I need people like you and Irma Martinez that I can trust to help me when I take over.... You're the one person that has a lot of influence on these girls and you can help me to disencourage them. . . . He said to disencourage the girls against the Union. And he says, We can - I can make you - He said I can make you supervisor of the long distance department and I will make it known that you are a supervisor. And then he did ask me how much money are you making? And then I said, Mr. Z I'm only making $2.35 an hour. And then he says, Do you clear a hundred dollars? on the record. Since no explanation as to the failure of Tarin to testify was offered by the Respondent the inference is therefore permissible and made that, if called, Tarin's testimony would have been adverse to the Company.2 Z flatly denied he had offered the girls supervisory jobs, an increase in wages so that they both would earn "one hundred dollars clear" or that the offers were made conditioned on the employees relinquishing their support of the Union. Z further denied that he had told Arriaga that if the Union won he "would fight her." He did admit that he told Arriaga that the Company would resist the Union's attempt to organize. Earlier in his testimony Z told her that she came to him too late because the Union had already organized the employees and had requested Tarin to recognize it on a card check. The logical conclusion made manifest by the evidence is that Z was urging Arriaga and Martinez to defect, influence the employees to do likewise and thus undermine the Union. For reasons which will be amplified infra I credit the testimony of Arriaga and the corroboration by Martinez and I discredit the denials of Z. Z also told Arriaga that he did not like unions. This comment was made in the flow of his remark that he would "fight Arriaga." Z's version of this aspect of his remarks was that the Company would resist any union effort to organize the employees. And I said, No. And he says, well how much would you want to make? And I said, at least a hundred dollars plus overtime. Z answered. All right. Arriaga then said there was no way to discourage the girls because she was the organizer who started the whole thing. The girls had elected her to be chairwoman and they trusted her. The Union was not only for her but it is to help everyone. Arriaga concluded her recital by saying she would speak to Irma as he had requested and he told her, "he did say - he did tell me he did not want the Union, and he says, if the Union wins , Mary Louise, I'm going to fight you, and I'm going to fight you with all I can." Arriaga spoke to Irma, told her Z said he would make her a supervisor and that he needed people like Arriaga and Irma, people he could trust and rely on now that he was going to have the new position as manager. Irma Martinez corroborated much that Arriaga had testified to concerning conversations among Irma, Arriaga, and Z. In a telephone conversation between Irma and Z, Z asked her, "Are you clearing a hundred? And I said No, sir. And he said, Well I can get you a hundred plus overtime." Martinez also testified that Z told her he would make her a supervisor. To these offers Martinez said she could not accept because, "I just won't sell out. I can't." It should be pointed out that Martinez steadfastly stuck to her testimony despite being subjected to brief but vigorous cross-examination. So far as the testimony given by both Arriaga and Martinez concerning talks with Tarin it should be especially noted that Tarin did not testify. Therefore the testimony of the girls as to what he said stands unrefuted C. The Discharge of Mary Louise Arriaga Arriaga began to work for Respondent in 1952 and except for leaves of absence due to pregnancies she has worked for the Company for 22 years. She was one of the three primary long-distance phone operators. During this entire span of years Respondent never had a single complaint about her work until beginning in August 1973, and continuing until January 28, 1974, when allegedly a flurry of approximately eight oral and four written complaints were received by the Company concerning her. Arriaga was so well regarded by Zepeda that even after a number of complaints were allegedly received involving her Z made it a practice to turn the complaints over to her to be investigated. In this role on one occasion she told Z she recognized the complaint as referring to her. Two of the four written complaints did not name or identify her but Z said these matters concerned Arriaga. Z testified that he did not warn Arriaga on any of the matters involving her and certainly never warned her or threatened her with discharge. Z testified that he told Arriaga there were too many complaints about her work and "something had to be done." Upon questioning Z as to what he meant by telling her something had to be done he replied that he was thinking of transferring her to another job. She was never told explicitly that if another complaint came in on her she would be discharged. In fact it is clear from the record that she was never even warned because Z explained that he thought it would be bad labor relations to threaten an employee with discharge. The most that can be said is that, despite her denials, she was made aware of 2 K & M Machine Company, Inc., 162 NLRB 83, % (1966); Teledyne Dental Products Corp., 210 NLRB 435, fn. 19 (1974). SAN ANTONIO RETAIL MERCHANTS ASSN. 65 the fact that certain complaints had been made about her handling of long-distance phone inquiries . The burden of the complaints was that when she answered the phone she kept the caller on "hold" for an undue length of time. For example, it was testified by Z that on a number of calls she did not return to the waiting inquirer at all but left her holding the phone until the caller hung up. The Company also claims that on a number of occasions she took 10 minutes before she returned to the phone with the requested information whereas under normal circum- stances the requested information should have taken no more than 3-4 minutes to be properly provided. Arriaga said she was never warned and no complaints were ever discussed with her. Z said he talked to her on a number of occasions and when asked why she did not expeditiously secure the required information she answered she was busy. When the same caller made a second fruitless attempt to secure information from Arriaga which she did not complete, her answer to Z allegedly was that she was still busy. Arriaga further testified that she was never shown any written complaints until the day she was discharged when she was shown the last two written complaints lodged against her. Arriaga said she was so upset and nervous by being fired that she only glanced at these letters but did not read them. It would appear from the totality of the evidence in the record that while she was aware of some complaints the admonitions she received were never couched in terms to put her on notice that a repetition would result in her being disciplined or discharged . Z testified that he began to watch Arriaga after receiving some complaints and he noticed that after she received a call, she would put the party on "hold," start back to the files, and stop on the way to talk to various operators while the light continued to blink on her switchboard . When this was called to her attention shg would not answer but would complete the job without comment. Z testified that Arriaga appeared to be nonchalant about Z's remarks. The fact that Arriaga was nonchalant about Z's remarks is understandable because she did not feel threatened by Z's mild comments. An example of the gentle way Z admonished her can be seen by Z's testimony after he had received one of the complaints against her. He was asked what he did. He replied, "Well I didn't bawl her out but I told her to please try to expedite it." Arriaga replied that she would do the best she could. The San Antonio office does not open for business until 9 a.m. The practice in the office is not to answer the phone if it rings before that time but to let it ring. If the phone is answered the operators were instructed to secure the information requested and report it to the caller. Z explained that if the call comes in before 9 a.m. and it is not answered no toll charges are incurred . Arriaga answered the phone before 9 a .m. because she said she was expecting a call. On this occasion she merely informed the caller that the office was not yet open for business but made no effort to service the call . This incident formed the basis for one of the written complaints made against her. It seems strange that for some of the complaints received by Respondent concerning Arriaga, Z called upon her to check out these matters. She did so and reported to Z that the subject complained of involved her. This occurred a number of times. In this connection on cross-examination the General Counsel asked Z: And at the same time that you tell us that she was not performing adequately, that you were getting oral complaints concerning her, you were watching her talking to other employees when she should have been working, but you were still asking her to check out these complaints. Z answered, "Yes, it was still part of her job. " He also said, "I regarded her more or less as a lead operator because of her experience." There is testimony in the record that each of the three regular long-distance operators receive approximately 250 phone calls a week. This means that the three operators handle approximately 750 calls a week give or take some variances in this number. Projecting this information over a 50-week year something over 37,000 calls are handled by the long-distance division. Z testified he received four or five complaints a year and prior to the Arriaga situation he never previously received even one complaint which specifically named an operator by either name or the operator's number. Much later in his testimony he admitted that complaints are a problem in every credit bureau and have been since "day one." It is implausible that not a single complaint had ever been received by the San Antonio Bureau which referred to a particular operator prior to the complaints regarding Arriaga. This testimony is so improbable and unlikely as to strain credulity. Josephine (Josie) Lopez and Patricia Pulido, who are still employed by Respondent, credibly testified that both of them frequently received calls in which the caller mistaken- ly identified them as Mary Louise . This mistake in identity was not an unusual occurrence . It is to be noted that these two operators, who appeared as witnesses for the General Counsel, are presently employed and by giving testimony adverse to the Company may have exposed themselves to possible reprisals. It may be said that they testified against their own interest. I credit this testimony. I do not discredit the testimony of Margaret Andrade or Charlotte Roberts both of whom testified for the Respon- dent. They too are employed by the Company and it was to their interest to testify the way they did. However, I am inclined to discount what they said because of their interest in providing evidence in favor of the Respondent. D. Credibility This case poses the difficult question as to who was telling the truth - the 8(aX3) (Arriaga) or Zepeda, the Company's manager. Unfortunately, in determining credi- bility issues, a trier of fact does not have the benefit of any test that may be applied with absolute certainty that the result reached will be correct . Under our judicial system, all that a trier of the facts can do is to give due consideration to, among other factors the demeanor of the witnesses, their apparent candor and frankness, their bias and interest, or the lack thereof, the probability of the truth 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their testimony, and upon consideration of all relevant factors, give credit where credit appears to be due. After careful consideration of the testimony I have concluded that I must credit the testimony of Arriaga over that of Zepeda. I base this conclusion upon the totality of the following considerations: 1. Z was inclined to make sweeping unqualified statements such as that he never received one complaint naming a particular operator prior to the complaints about Arriaga. This seems highly unlikely and contrary to the normal proclivity of people to make errors and then receive complaints about mistakes we all make. 2. Arriaga and Z have known each other for 22 years. They are friends. Arriaga, describing an important conver- sation between them, testified that after she rejected Z's offer of an increase in wages and promotion to supervisor, Z said, "they [the employees ] could have all the things they wanted without a union. . . . If the Union wins Mary Louise I'm going to fight you, and I'm going to fight you with all I can." Z denied he had ever said, "I'm going to fight you." He asserted I told her we would resist any union effort to organize . ". . . we will resist through legal counsel." When Arriaga had her first conversation with Z about the Union he said it was too late, the Union had already organized the employees, why are you coming to me - do you want to get out of it, or words to that effect. In the second place I regard it as unlikely that Z and Arriaga, friends of 22 years' standing, would find Z speaking to her in formal language using words of legal nicety. Z's testimony, taken in the context described above, does not ring true. 3. Z testified at length about the fact that he never, in his long years of employment with Respondent , received complaints about specific operators. However, while under searching cross-examination by the General Counsel, Z finally came full circle and admitted that all credit bureaus, including San Antonio, receive a large number of com- plaints. He admitted that he, like all bureau managers, had received complaints since "day one." This is a glaring inconsistency. I find Z's statements in this connection to be palpably untrue. 4. Z also testified that when complaints began to come in on Arriaga he gave these complaints to Arriaga to investigate. He denied he was trying to trap her but explained-that he called on her to track down these matters because "she was a sort of lead operator" and had great experience. I regard Z's course of conduct in this connection to be utterly unbelievable. 5. Z's demeanor while on the witness stand did not impress me favorably. He was not candid as explained in the points supra and his testimony was inconsistent in a number of crucial areas. 6. Z admitted that he never showed Arriaga any one of the written complaints made against her until after her discharge when he showed her only the last two com- plaints. This too is strange behavior on the part of Z. Arriaga's demeanor made a good overall impression although I do not credit her flat denials that she was never warned. It seems to me that even if Z never threatened her with discharge or bawled her out, at the very least , she was aware that a number of criticisms had been made about her work. It seems equally clear to me that neither Arriaga nor Martinez is sufficiently sophisticated to have manufactured her or his testimony out of whole cloth . I credit their testimony despite the fact that Arriaga was not correct when she denied ever having been put on notice that complaints were made against her . To the extent that a witness is credited only in part, this is done upon the evidentiary rule that-it is not uncommon "to believe some and not all" of a witness' testimony.3 E. Concluding Findings and Analysis Respondent, without conceding that it engaged in independent 8(axl) activity, states in its brief with considerable emphasis that none of the conversations involving Z were violative of the Act. It is argued that even if certain statements were made by Z they were isolated remarks and not sufficiently serious to warrant the issuance of a remedial order. Numerous cases are cited in support of this argument. It is further argued that the initial discussion had by Z with Arriaga and Martinez was not only free from unlawful statements or promises ... but during that meeting Z made it a point to stress Respondent's legal posture under the law. The brief also states that the remarks of Z constitute merely isolated statements. I disagree. First, it should be noted that no mention is made about Taria's statements to Arriaga. The statements attributed to Tarin and credited by me were a carbon copy of Z's remarks. The Company did not produce Tarin as a witness and I have already stated supra that the failure to produce a material witness gives rise to the reasonable inference that if Tarin had testified his testimony would have been adverse to Respondent. Second, I have read the cases cited in the brief and none of them are apposite because they are based on facts which do not include promises of benefit or threats of reprisal. I have credited the testimony of Arriaga as corroborated by Martinez that Z offered both of them an increase in wages sp that each would make "one hundred dollars a week clear." I have further credited Arriaga's testimony that Z, after his offers were rejected by the girls , said, "I'm going to fight you Mary Louise" and he implemented this threat by discharging Arriaga. Further, in my view, the testimony concerning Tarin is mutually corroborative of Arriaga's version of Tarin's remarks. Nowhere in the record does Respondent controvert the remarks attributed to Tarin. The Company's brief also stresses that Z's talks with Arriaga were merely protected speech, "there being a total absence of unlawful promises or threats therefrom." It can hardly be said that promises of $100 clear and promotion to the position of supervisor coupled with Z's threat to fight Arriaga, followed by her discharge, is anything other than a naked threat of reprisal and clear promises of benefit. Respondent also argues that Z could not have made such statements because he had been exhaustively 3 N.LP-B. v. Universal Camera Corporate, 179 F.2d 749, 754(C.A. 2, 1950), revised and remanded on other grounds 340 U.S. 474. SAN ANTONIO RETAIL MERCHANTS ASSN. instructed as to what he could legally say to his employees with a detailed list of "do's and don'ts." I reject this argument as being without merit. The cases are legion in which careful instructions to management representatives are not followed as to permissible language that may be directed to employees. Also it can hardly be said that lengthy talks, studded with threats and promises, made by Respondent's manager and assistant manager, constitute isolated instances. The remarks of these two top-management men could hardly be characterized as being innocuous. Finally, particular attention is called to the timing of Respondent's discharge of Arriaga. Z told Arriaga that he would fight her to prevent the organization of Respon- dent's employees. The Union wins an NLRB election on Thursday, January 24, 1974. There is an intervening weekend which brings us to Monday, January 28. Thus only one workday intervenes between the union victory and Arriaga's discharge. Against the background of the facts of the instant case there is more than a suspicion that Respondent's action flowed directly from the union victory. To further buttress my conclusion Z testified that on Friday, January 25 (the next day after the union victory), he told Tarin that he had decided to fire Arriaga but would sleep on it over the weekend. Contrary to the position of Respondent, the receipt of still another written complaint received on January 28 was not the causative reason for the discharge. As I view the case, the precipitating event that sealed Arriaga's doom was the union victory and not the receipt of another complaint letter. If Respondent's theory holds water it is impossible to otherwise account for the delay in discharging Arriaga. The Company had no practice requiring it to keep Arriaga in its employ through a series of eight oral and four written complaints, about her work. The complaints spanned a period from August 1973 until January 28, 1974. If she was discharged for cause the cause existed for approximately 5 months. Action against her was not taken until I working day after the Union's victory. In conclusion, in order to find Arriaga's discharge to be discriminatory it is not necessary that her union activity was the sole element responsible for her being terminated. It is enough to determine that her discharge was prohibited by the Act if her union activity was a motivating or substantial ground notwithstanding that a valid ground may have arisen for applying disciplinary measures.4 I expressly find that Arriaga's union activity played a substantial or motivating, but not necessarily the only, part which led to her discharge. I therefore find that the reason given by Respondent for Arriaga's discharge was a mere pretext. She was discharged in large part because of her union activity and by so doing Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 4 N.L.R.B. v. Lexington Chair Company, 361 F.2d 283, 295 (CA. 4, 1966); N.L R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6,1966). 5 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, 67 2. By its conduct as set forth and found in "III," supra, consisting of its discharge of Mary Louise Arriaga under the circumstances described, Respondent has engaged in, and is continuing to engage in, unfair labor practices in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended. Respondent has also by interrogation, promises of benefit, and threats of reprisal sought to have its employees abandon the Union and has thereby independently violated Section 8(a)(1) of the said Act. 3. Said unfair labor practices have affected, affect and, unless permanently restrained and enjoined, will continue to affect commerce within the meaning of Section 2(6) and (7) of said Act. REMEDY Having been found to have violated Section 8(aX3) and (1) of the Act in respect to its dismissal of Mary Louise Arriaga and its failure to reinstate or reemploy her, Respondent should be ordered to cease and desist therefrom and to offer her reinstatement to her former job (or, if no longer available, in that case to an equivalent job), together with backpay as appropriate, less applicable interim' earnings, if any, plus interest, computed as delineated in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), making necessary records available for computa- tion purposes. Respondent should further be required to post the usual notice to employees to the effect that it will repair such violation, and desist from further such violation and interference with its employees' rights under the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following: ORDERS Respondent, San Antonio Retail Merchants Association, its officers, agents, successors, and assigns, shall: A. Cease and desist from: 1. Discharging any employee, or failing and refusing to reinstate or rehire any employee in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, because said employee has engaged in union organization- al or other concerted activity protected by and lawful under said Act. 2. Discriminating against any employee in regard to his hire, ;enure, or terms and conditions of his or her employment, so as to discourage membership in, affiliation with, sympathy for, or lawful activity on behalf of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, or any other labor organization. 3. Interrogating its employees as to the persons who are members of the said Union. conclusions, and recommended Order which follows herein shall, as provided in Sec. 102.48 of those 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. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Attempting to discourage its employees from re- maining members of the Union by making promises of benefit and threats of reprisal designed to have its employees abandon the Union. 5. In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization. B. Take the following affirmative actions necessary to effectuate the policies of the Act: 1. Offer Mary Louise Arriaga immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges; and make her whole for any loss of pay suffered in consequence of her discriminatory discharge of January 28, 1974, in the manner set forth in the "Remedy" portion of the Decision. 2. Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay and other 6 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 sums due under and the extent of compliance with the terms of this recommended Order. 3. Post at its San Antonio, Texas, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being signed by Respondent's authorized representative, be posted in said premises by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. 4. Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED, that the complaint herein, dated April 3, 1974, be and the same is hereby dismissed with respect to any unfair labor practices not found to have constituted violations of said Act. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."