Standard Beverage, Inc.

STANDARD BEVERAGE, INC. 283 Standard Beverage, Inc. and Beer Drivers, Salesmen & Helpers Union Local No. 203, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America . Cases 21-CA- 11736 and 21-CA-12042 January 23, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On July 31, 1974, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions with supporting argument. 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 argument and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. In his Decision, the Administrative Law Judge found that Respondent unlawfully manipulated job assignments in order to reduce incentive payments to union supporters. However, the Administrative Law Judge failed to find that this conduct violated Section 8(a)(3) of the Act. Inasmuch as the manipulation of job assignments resulted in a decrease in pay for union supporters, we find that this conduct necessari- ly discourages employees from engaging in union activities in violation of Section 8(a)(3) of the Act. Accordingly, we shall modify the recommended Order and provide for an appropriate remedy. 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 herein and hereby orders that Respondent, Standard Beverage, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below: 1. Substitute the following for paragraph 1(i): "(i) Discouraging membership in or activities on behalf of Beer Drivers, Salesmen & Helpers Union Local 203, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees, by 216 NLRB No. 53 discharging, suspending, manipulating work assign- ments, issuing reprimands to, or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employment of its employees." 2. Insert the following as paragraph 2(c) and reletter the existing paragraphs accordingly: "(c) Make whole James Fritz, Bruce Boughton, James Ciccaretli, and Carey E. Clarke for the income they lost by reason of the discriminatory manipula- tion of their job assignments in accordance with the formula set forth in the section hereof entitled the `Remedy.' " 3. Substitute the attached notice for the Adminis- trative Law Judge's. 1 In the absence of exceptions thereto, Member Kennedy adopts pro forma the Administrative Law Judge's ruling which imposed a "penalty" on witness John Fahy by sinking portions of Fahy's testimony because Fahy refused to produce certain documents. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we, Standard Beverage, Inc., violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: The National Labor Relations Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represent- atives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT do anything to interfere with you in the exercise of the aforementioned rights, and all our employees are free to become or remain a member of Teamsters Local 203, or not to become or remain a member of that or any other union. WE WILL NOT promise you improved wages or other employee benefits to induce you to cease supporting a union, or threaten you with a reduction in such benefits because you assist or support a union. WE WILL NOT threaten you with termination or more difficult working conditions because you assist or support a union, or promise less difficult 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working conditions if you cease to support a union. WE WILL NOT question you about your assist- ance to or support of a union, or place you in the position that you are called upon to declare whether you are for or against a union. WE WILL NOT urge you to seek employment elsewhere because you assist or support a union. WE WILL NOT manipulate or threaten to manipulate work assignments so as to prevent those employees who assist or support a union from earning any bonus or incentive pay that we have in effect for our employees. WE WILL NOT enter into or pursue any plan or scheme to rid ourselves of employees who assist or support a union, to avoid our obligation to bargain with a union that is the representative of our employees in an appropriate unit. As the National Labor Relations Board has found that we violated the law by suspending James Fritz and Peter Dickenson, and by dis- charging James Fritz, James Ciccarelli, and Peter Dickenson, WE WILL offer each of them his old job back, if the same exists, and if not, a substantially equal job, without any loss in seniority or other rights and privileges, and make up to them the pay they lost with 6-percent interest. As the National Labor Relations Board has found that we violated the law by manipulating the job assignments of James Fritz, Bruce Boughton, James Ciccarelli, and Carey E. Clarke, thereby causing these employees losses in income, WE WILL make them whole for the pay they lost with 6-percent interest. As the Board found that we violated the law by reprimanding James Fritz, James Ciccarelli, Peter Dickenson, Carey Clarke, G. S. Loell, and Bruce Boughton, WE WILL remove from our records and destroy any and all reprimands which the Board found we issued to the aforementioned individu- als because of their activities in support of Beer Drivers, Salesmen & Helpers Union Local 203, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, and advise each of said individuals, in writing, that we have done so. WE WILL, in writing, notify any employer to whom we have given reference on any of the individuals named above, that in compliance with the order of the Board we have removed from our files and destroyed any reference to the fact that Issued February 27, 1974. In Case 21-CA-11736, the charge was filed I and served April 20, 1973. In Case 21-CA-12042, the charge was filed and served August 17, 1973, and amended October 26, 1973. No issue of commerce or labor organization is presented. The s such individual was reprimanded or suspended by us, and send a copy of such advice to the employee involved, at his last known address. STANDARD BEVERAGE, INC. DECISION STATEMENT OF THE CASE JOSEPH I . NACHMAN: Administrative Law Judge: This proceeding tried before me at Los Angeles, California, on April 23 through 29, 1974, with all parties present and duly represented by counsel , involves an amended consolidated complaint' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges, in substance, that Standard Beverage, Inc. (herein Respondent or Company), by various statements, inter- fered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, reprimanded, issued disciplinary warnings to, and dis- charged certain employees, because of their assistance to, and support of, Beer Drivers , Salesmen & Helpers Union Local 203, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America (herein Union or Local 203). By answer, Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practice . For reasons hereafter more fully set forth, I find certain allegations of the complaint sustained by the evidence and recommend a remedial order. At the trial all parties were afforded full opportunity to introduce relevant and material evidence , to examine and cross-examine witnesses , to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. On the pleadings, evidence, the stipulations of counsel, and the entire record in the case, I make the following: 1. FINDINGS OF FACT2 A. Background Respondent is engaged in the sale and distribution of malt beverages in the Los Angeles area. Its principal product is Coors beer. For that purpose Respondent operates a fleet of trucks and employs drivers, helpers, salesmen, warehouse employees, office personnel, as well as the requisite complement of supervisory staff. The supervisory staff chiefly involved in this proceeding, whose supervisory status is admitted, is Haralambos T. Haralam- bos, who is president and in charge of all business of the enterprise; Max Abbott, general manager ; David Jensen, driver supervisor and George Kober, head salesman. For some years the drivers and helpers employed by Respond- ent have been represented by Teamster Local 203, and a complaint alleges, and the answer admits facts which establish these elements of the case . There being no dispute with respect thereto, I find those facts to be as pleaded . Moreover, it appears as hereafter set forth, the Board conducted an election on a petition filed by the employer STANDARD BEVERAGE, INC. 285 collective-bargaining agreement has been in effect between the Union and Respondent. The last such contract provided that it was to be in effect from July 31, 1970, to June • 1, 1973, and thereafter from year to year unless terminated by notice. Pursuant to this and prior contracts, Local 203 operated a hiring hall through which Respond- ent acquired the drivers and helpers it needed for its operations.3 In addition, the contract has a grievance and arbitration provision ; a provision dealing with "Health & Welfare, Dental, Prescription, Visual care and Retiree Benefits" as well as Pension Benefits , Incentive Payments,4 and provision against discharge for other than good cause. On August 6, 1971, pursuant to the provisions of the contract, the Union filed a grievance relating to the operation of the hiring hall provisions , which grievance became the subject of an arbitration proceeding, held April 19 and July 27, 1972, which is the final step of the grievance procedure under the contract. The parties agreed that because an expeditious resolution of their dispute was most desirable, the Arbitrator might issue his award without an accompanying opinion. The award issued by the Arbitrator on August 2, 1972, provided (a) that it was a breach of the collective-bargaining agreement for Re- spondent to refuse employment to any person referred by the hiring hall, for the purpose of avoiding health and welfare contributions, or any other provision of the contract; (b) the employer might refuse referrals from the hiring hall if not for arbitrary or discriminatory reasons; (c) to reduce the area of possible misunderstanding the Union was directed to submit to Respondent a list of not more than 40 names of persons having permanent or temporary status under the contract, and who were not then regularly employed by another employer, and that the employer must notify the Union in writing, no later than August 30, 1972, what persons on the aforesaid list were unacceptable to it, and its reasons for such position , that the reasons assigned by the employer shall be final unless the Union within 15 days serves notice upon the employer that its reasons are considered by the Union to be arbitrary or capricious, and that such disputes as may arise will be resolved by the Arbitrator, who retained jurisdiction for that purpose until May 31, 1973, the expiration date of the contract; (d) the Union shall not dispatch persons to the employer who,are not on the approved list; and (e) that the Award shall not be a precedent for any other employer subject to the contract. Pursuant to the aforementioned award, the Union prepared and submitted to the Company a list containing the 40 names as provided in the Arbitrator's award. By letter dated August 31, 1972, the Company informed the Union that 33 of the persons named on the Union's list were unacceptable for specified reasons. By letter dated 3 There is no issue as to the validity of the hiring hall or its operation. 4 The incentive payment provided for is 10 cents per case for all cases delivered by a driver, without the services of a helper, in excess of 1,250 in a week. S Actually, the count is 15, but the evidence shows that the parties operated from a list of 14. Apparently, one of the three that the Arbitrator qualified conditionally, did not meet the conditions the Arbitrator specified, but the record does not identify this individual. I do not regard this of any importance in disposing of the issues involved. 6 Par. 6 of the complaint alleges that , between November 1972 and May 1973, Respondent refused to hire 13 employees from the hiring hall September 8, the Union notified the Company that the reasons given by the Company for regarding 19 of the 33 persons designated by the employer as unacceptable were arbitrary and capricious. The differences thus existing between the parties were considered by the arbitrator, and resulted in his award that of the 33 challenged by the employer, 5 were qualified, and 3 others were qualified if they met certain conditions. This resulted in a list of 14 persons5 to be used by the Union in dispatching to Respondent, and which Respondent was required to accept when dispatched by the Union pursuant to its request for employees. B. Current Facts The General Counsel's basic contention is that in late 1972 or early 1973, Respondent embarked upon a course of action designed and intended to rid itself of the Union. Although conceding that in many instances the conduct upon which he relies would perhaps not, standing alone, establish an unfair labor practice, that considered in total context, the facts establish the aforesaid unlawful objective and purpose. The evidence relied upon by the General Counsel, much of which is not in conflict, shows the following: 1. Hiring practices: November 1972-May 1973 period As heretofore indicated, the arbitrator's award limited the Union to referring to Respondent only those employees who were on the established list, and required Respondent to accept only those referred from that list. The General Counsel contends that after November, 1972, and until the contract expired on May 31, Respondent made it a practice of calling the Union very late in the day for work early the following morning, or would call early in the morning for work that same day, so as to make it more difficult and in some instances impossible for the Union to contact and refer men on the approved list. The contention is that this was done to enable Respondent to avoid hiring employees likely to be union supporters, and to hire, instead, off the street, men who would be more likely to vote against the Union in any election that might be held.6 To support this contention he relies in the main upon the testimony of John Fahy, the Union's secretary-treasurer. Fahy testified on direct that the Union services from 42 to 45 employers, and that 95 percent of these called him at the hall between 11 a.m. and 3 p.m. for their personnel needs the following day; that Standard made it a practice to call between 4:30 to 5 p.m., generally closer to 5 p.m., and in some instances the next morning for employees to work that day, and because he was restricted in his referrals to (presumably meaning dispatched from the hall ), because of their assistance and support of the Union, and par. 22 alleges that such refusal was a violation of Sec. 8(axl) There is no testimony in the record that any of these employees were ever dispatched to Respondent , or that Respondent ever refused to hire them Moreover, the uncontradicted testimony of Mrs Nicholas, which I credit, is that Respondent always hired anyone referred to it by the Union whose name was on the list promulgated by the arbitration proceeding, and that Respondent refused to accept only those not on the list. The point is not argued in the General Counsel's brief, and I assume the contention has been abandoned . In any event, I find and conclude that the evidence fails to support par. 6 of the complaint. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the arbitrator's list, this gave him insufficient time, sometime as little as 20 minutes , to contact and refer men to Standard. On cross-examination, Fahy admitted that he kept in his office a log of calls to the hiring hall, which Respondent's counsel asked that Fahy produce. After completing other areas of the cross-examination , Fahy was temporarily excused to get the log and return to the courtroom. Upon his return, Fahy and the Union's counsel informed me that the log was in the courtroom , but that it would not be produced because it regarded such records as confidential, particularly so in the instant case, because the Union was now decertified and the employer should not be permitted to examine the Union 's dealings with other employers.? The Union took no position on the question of relevancy of the log, or any testimony that Fahy might give in explanation thereof. Respondent argues not only that the Union's claim of privilege is without merit, but that the log was relevant and material on the issue of Fahy's credibility, as well as the General Counsel's contention that Respondent's general practice of calling the hall at a late hour was part of the scheme to rid itself of the Union. Respondent argued that as a sanction for the failure to produce the log, in view of the Union's status as the charging party in this proceeding, Fahy's testimony should be stricken in its entirety .8 The General Counsel argues that Fahy's testimony cannot be stricken because the Board's Rules and Regulations do not give an Administra- tive Law Judge any authority to strike testimony for refusal to produce documents, as distinguished from a refusal to answer questions, and as Fahy expressed willingness to answer questions concerning the log, I was without authority to strike any of his testimony. Upon consideration of the issue I conclude, in accord- ance with my ruling at the trial, that the log was relevant and material both on the issue of credibility and insofar as it may tend to negate the General Counsel 's contention that Respondent's practice of calling the hiring hall at a late hour was in furtherance of a scheme or purpose to evading its obligation to the Union . I also conclude, particularly in view of the fact that the Union is the charging party in this proceeding, that some penalty should attach for Fahy's refusal to produce the log, which might have aided Respondent in showing that Fahy's earlier testimony that other employers normally called the hall for men between II a.m. and 3 p.m., was not true , and that the appropriate penalty is to strike all of his testimony relating to the time that employers other than Standard, called the hall for men. Not only do I strike Fahy's testimony in that regard, but I affirmatively infer that had the log been produced, it would not have supported his earlier testimo- ny in that regard. See Halliday v. United States 315 U.S. 94, 99; Interstate Circuit v. United States, 306 U.S. 208, 225- 226. As the Supreme Court said in the last cited case, "The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." (id. at 226). This result appears to be not only in accordance with the spirit and purpose of the Board's applicable Rules, but also in furtherance of the ends of justice. Accordingly, I make no finding as to time other employers called the hiring hall for men. However, as supervisor Jensen and office clerical Nichlas, who virtually always called the hiring hall for men, both testified that such calls were normally made on behalf of Respondent, between 4 :30 and 5 p.m., I regard this as an admission and find it to be the fact. 2. The representation proceeding On March 6, Respondent filed a petition for a Board election among the unit employees (Case 21-RC-1585). This resulted in a Stipulation for Certification Upon Consent Election, approved by the Regional Director on April 18, and pursuant to which an election was conducted on June 4, when 9 votes were cast for the Union, 11 against, and 7 ballots were challenged. No objections to the election having been filed, the Regional Director on July 13, after investigation, issued his Report on Challenged Ballots, recommending that the challenge to one ballot be sustained ; that the 6 remaining challenges be overruled, that those ballots be opened and counted and a revised tally of ballots issued. No exceptions to that Report having been filed, the Board, by order dated July 31, approved that recommendation and directed that after the revised tally of ballots issued, the results of the election be certified. The revised tally of ballots, dated August 7, showed 12 votes for the Union and 14 against, and on the basis thereof a certification issued on August 10, that the Union was not the exclusive representative of the employ- ees in the unit. 3. Threats and promises of benefits a. The preelection period The General Counsel contends that beginning early in 1973, and continuing through the representation proceed- ing, and until the end of September, Respondent promised its employees benefits calculated to induce employees to cease supporting the Union, and otherwise coerced and restrained them in the exercise of their rights under Section 7 of the Act. The incidents relied upon by the General Counsel are: 1. Carey Clarke credibly testified that in January or February,9 he had a conversation with General Manager Abbott in the latter's office, at which Abbott raised the subject of changing Respondent's operation from a system of preselling goods to be later delivered , to a system of the r It may be noted that counsel requested the log only for the period that Respondent was using the hiring hall, namely , from November 1972 through May 1973. 9 In support of this position Respondent relies on the Board's Rules and Regulations, Secs. 102.35 and 102.44(c) In pertinent part the first mentioned section provides: The Administrative Law Judge shall have authority, ... to regulate the course of the hearing, and if appropriate or necessary, ... to strike all related testimony of witnesses refusing to answer any proper ques- tion..... The second section referred to, in pertinent part, provides: (c) The refusal of a witness . . . to answer any question which has been ruled to be proper shall, in the discretion of the administrative law judge, be ground for sinking all testimony previously given by such witness on related matters. 9 This and all dates hereafter mentioned are 1973, unless otherwise indicated. STANDARD BEVERAGE, INC. 287 driver selling and delivering from the stock on his truck. Clarke asked when this might take place , and Abbott replied that he hoped it would be soon, but that before it could be done the Union would have to be decertified. Clarke asked Abbott to explain what this meant and what it involved, and Abbott did so. Clarke then asked what would happen to the union drivers if the shop went nonunion, and Abbott replied, "we will just have to get rid of them." Abbott then cautioned Clarke that what he had said could be used against him in the event of an unfair labor practice proceeding, and that he should not talk about it. Clarke agreed that their conversation would go no further. 10 The union contract has provisions for pension and health and welfare benefits for Respondent's employees in the unit covered by the contract. For its employees not in the unit (i.e. clericals and at least some supervisors), Respond- ent established a profit sharing plan from which, upon retirement, the employees would receive benefits, as well as an insurance program designed to provide the employee with benefits in the event of illness or disability.11 Sometime early in February, Haralambos posted a notice inviting all employees to attend a meeting to be held after working hours in the Company's office. Although attend- ance was voluntary and without compensation, the meeting was attended by virtually all the drivers, ware- housemen, and clerical employees . Haralambos opened the meeting by telling the employees that a Mr. McDonald, who was well informed in the field of pension benefits, would address them and explain the pension benefits as provided in the union contract, as well as the benefits under the Company's profit sharing plan for its nonunit employees. Every witness who testified on the subject agreed that McDonald first explained the pension benefits under the Union contract, and then explained the Company's profit sharing plan; that no effort was made to compare the two plans, or to indicate that one plan was "better" or more "favorable" than the other, except to the extent that the listener might draw a conclusion of his own from what was said . Following McDonald's presentation, Haralambos opened the meeting for questions , and several were asked . Employee Dickenson commented that he had 17 years as a union member, and asked what would happen to that. Haralambos said that he could freeze it. Employee Arnold asked if he could be under both plans, or if he could make voluntary contributions to the profit sharing fund, and was told that if one was subject to the union contract he could not participate in profit sharing, or vice versa.12 The following morning another meeting was called by Haralambos where the subject of insurance to Based on the credited testimony of Clarke. Abbott admitted that he had a conversation with Clarke at the time and place mentioned, but claimed that the conversation only related to Clarke 's then job in the warehouse. Although Abbott denied that he told Clarke that to go on driver sales the Company would first have to go nonunion , and also denied that he ever told Clarke that he would deny the conversation because it might be used to prove an unfair labor practice , he did not "recall" whether the matter of a decertification vote was discussed at the time, and that he did not "remember" whether Clarke asked him what would happen to the union drivers if the plant went nonunion . To the extent that the testimony of Abbott and Clarke are in conflict on this point, I credit the latter. 11 Information as to the precise scope , operation and benefits under the plan, is not in the record. benefits were discussed. A number of unit and nonunit employees attended. Again Haralambos introduced a speaker who explained first the insurance benefits provided under the union contract, and then the insurance benefits provided by the Company for its nonunit employees. No effort was made to compare one plan to the other, or to indicate that one plan was superior to the other, although as least one employee (Fritz) testified that the benefits under the plan for the nonunit employees were greater in all categories, than those called for by a union contract.13 On his direct examination the only reason Haralambos gave for calling these meetings was that several employees had inquired as to their benefits in the Company, and that he thought the most expeditious way to explain it was through a meeting. On cross-examination he expanded on this somewhat, saying that several employees inquired as to what the benefits were under the Teamsters plan. However, he could not recall the identity of any employee who made such an inquiry of him, nor did any employee testify to having made such an inquiry. b. During the election proceeding 1. Sometime in April or May Respondent held a number of dinner meetings with the drivers and helpers, who were invited to attend in groups ranging from three to five. Abbott testified that these meetings were held over a 2- to 3-week period and were for the purpose of giving the employees an opportunity to talk to him, and he to them. Abbott admitted that in selecting the employees to be invited to a particular dinner he divided them into what he regarded as prounion and antiunion groups because he felt an employee would be more comfortable in a group that shared his views. Driver Fritz credibly testified that at the meeting he attended, and which was also attended by employees Arnold, Ciccarelli, Dickenson, and Boughton, as well as General Manager Abbott and Driver Supervisor Jensen, Abbott asked the employees if there was any problem they wanted to discuss. There is no evidence that any employee voiced any complaint, or brought up any particular subject. Abbott then discussed the company's desire to change to a driver sales operation and that while such an operation would result in eliminating some drivers it would bring about "a lot more money" for those that remained. When one of the employees asked when the new system would go into effect, Abbott replied that as long as the Union was there the new program would not be started because Respondent could not afford to pay as much as $200 to $500 a week for a man.14 2. Following the aforementioned dinner meeting, Ab- bott and Ciccarelli had further conversation in the parking 12 Based on the testimony of Fritz, Arnold, and Haralambos, which on this point is not materially in conflict. 13 Based on the testimony of Fritz and Haralambos which , on this point, is not materially in conflict. There is no testimony that at the meeting dealing with the insurance plans, any statement was made to the effect that if employees subject to the union contract rejected the Union, they would receive the benefits provided for the nonunit employees. 14 Based on the credited testimony of Fritz . Abbott did not deny the aforesaid discussion with Fritz . Jensen's only testimony regarding this event was that there was no discussion of decertification or of getting out of the Union. To the extent that Jensen's testimony may be regarded as in conflict with that given by Fritz on this point, I credit the latter. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lot of the restaurant, which began on the subject of driver sales, but soon turned to Ciccarelli's views about the Union. Abbott stated that he knew Ciccarelli was proun- ion, but Ciccarelli refused to admit or deny Abbott's statement, saying that no matter how the election went he would never disclose how he voted, because he regarded that as his business. In the course of discussion Ciccarelli told Abbott that the only reason he wanted to decertify the Union,15 was to avoid paying the wages other employers subject to the contract were paying. Abbott agreed that this was true, and added that if the Union did win the election, the Company would operate to a greater extent with two and three men on a truck to avoid paying the case incentive the employees were then earning.1e 3. Following the election, but before the final results were announced, driver Clarke was going over his delivery orders before starting on his day's assignment, and remarked out loud that the route assigned him was "damn lousy." Abbott, who was standing nearby and heard Clarke's remark, replied "If you had voted the other way, it would be different." 17 4. In the period between the election and the certifica- tion of the results thereof, Supervisor Jensen, in conversa- tion with employee Boughton, told the latter that those employees who voted for the Union should stand by their convictions and quit to take a job with an employer that employed members of the Union.is 5. The General Counsel claims that between the election on June 4 and until September 30, Respondent imposed more onerous working conditions on those drivers that were union members, and so manipulated their assignments as to make it impossible for them to earn as much from the case incentive bonus as they had in the past. With respect to the alleged more onerous assignments, I find and conclude that evidence fails to support the General Counsel's argument. Even the General Counsel's witnesses agreed that the difficulty of an assignment is not determined solely by the number of cases involved, or the number of stops to be serviced, but that such factors as the location of the stops; their distance from the plant and from each other; the amount of "backtracking" that might be required to be at a particular stop at a particular time; whether the establishment to be serviced had a convenient place for the driver to unload; the amount of handwheeling and rotation of stock that may be required; and whether 15 It may be noted that the RM petition filed by Respondent was pending at the time of this conversation. 16 Based on the credited testimony of Ciccarelli. Abbott admitted that he had a conversation with Ciccarelli in the parking lot, but denied that he made the statements attributed to him. According to Abbott, the only concern Ciccarelli expressed was about his future with the company, and that all he told Ciccarelli was that if he did his work properly, there would be a job for him. I credit Ciccarellt. it Based on the credited testimony of Clarke. Abbott did not deny Clarke's testimony in that regard . The General Counsel argues, relying on Memphis Chair Company, Inc, 191 NLRB 713 (1971), that Abbott's failure to deny Clarke's testimony constituted an admission that this incident occurred as Clarke testified. In my view the cited case does not support the General Counsel's argument All the Board held was that the failure to deny did not furnish a sufficient basis for crediting the contrary testimony. It did not hold that a failure to deny constituted an admission that the contrary testimony was true 1s Based on the credited testimony of Boughton . Jensen denied that he the area is such that the truck and its contents may safely be left unattended, are all factors which enter into a determination with respect to difficulty of the assignment. As no meaningful evidence was adduced with respect to the aforementioned factors so that an evaluation might be made of various assignments, or at least a representative number of them, the General Counsel has failed to carry his burden of proof in that regard. The unsupported conclusion of the various drivers, based on no more than their examination of the daily load sheets, that they regarded their assignments as more onerous than those given other drivers, I find inadequate evidence to support the General Counsel's assertion in that regard. With regard to the General Counsel's contention that Respondent discriminatorily reduced the bonus earnings of the union supporters, the payroll records in evidence show that in the 24 week period prior to June 9 (the first payroll ending after the June 4 election), driver Fritz earned $609.70 in incentive bonus, for an average of $25.40 a week, while in the 9 week period from June 16 through August 11, when Respondent announced the end of the incentive bonus, his total earnings were $18.10, or an average of $2.01 a week. For Bruce Boughton the figures are $22.33 a week prior to the election, and $6.70 after the election; for James Ciccarelli $23.56 prior to the election, and $6.71 after the election; for Carey Clarke $22 per week prior to the election, and $1.97 after the election. Although Peter Dickenson was a union supporter, his incentive earnings during and prior to the election averaged $17.59 a week, and after the election the average was $24.58, the figures would indicate that incentive work was available, and that Jensen did not make a real effort to distribute it equally among the drivers, and he claimed he did.19 These figures graphically illustrate that, except in the case of Dickenson, the incentive earnings of the drivers who were adherents of the Union were drastically reduced in the June 16-August II period. In light of my findings regarding the statements by Jensen, hereafter set forth, that he would be fired by Respondent if he did not make the work assignments in such fashion that the union adherents would be unable to earn more than $10 a week from incentive bonus, and the fact that Respondent offered no credible evidence to explain why there was such an abrupt and substantial reduction in the incentive bonus earned by the union adherents, I find that Respondent intentionally prevented the union supporters from earning the incentive made such a statement, but I do not credit his denial. 19 The General Counsel in his brief, presents a compilation of the incentive earnings of the union and nonunion drivers, based on hours drnen, expressing in percentage the amount of increase or decrease in the 9 weeks after the election as compared to the 9 weeks prior to the election. I have rejected that compilation in favor of that used above, because I do not regard the basis of the compilation to be sufficiently meaningful . Moreover, of the 15 employees he lists under the heading nonunion, only 4 testified (Blood, DiPaolo, Marino, and Weisman), regarding their union affiliation, or the lack thereof. Blood testified that he joined Local 203 1 week prior to the election, but then voted against the Union. DiPaolo testified that he joined Local 203 about 2 weeks before the election, and remained a member about 3 weeks, but never paid any dues. Marino testified that he was a member of Local 896, but never a member of 203, and made no attempt to transfer to it. Weisman, testified that he had been a member of a Teamster Local, but was not such when hired by Respondent in May, 1973. As to the remaining 11 , I find nothing in the record to establish that they were or were not members of the Union. STANDARD BEVERAGE, INC. 289 bonus because of their assistance to and support of the Union.20 c. Postelection proceedings Upon receipt of the information that the Union had lost the election, multicolored crepe paper streamers were hung in the office portion of the premises , and a notice was posted advising all employees of a party to be held the evening of August 7, at an establishment known as "Steerberger." To the notice was attached a rubber rat, and the legend "Dick Burton then [secty-treas. of the Union] is a dead rat." This was observed by a number of unit employees . Some 12 to 15 drivers attended the meeting at the Steerberger, including Arnold, Clarke, Fritz, Ciccarelli, and Boughton. Haralambos, as well as supervisors Jensen and Abbott, were also present. Considerable discussion took place at this meeting, which requires resolution of credibility issues. Driver Fritz testified that in a conversa- tion at one of the tables he heard Boughton complain that the work assignments were unduly severe , and that Haralambos replied, if you don't like your job, why don't you quit.21 Fritz also testified credibly that he heard Clarke ask Jensen, what is going to happen to us guys, and that Jensen replied, they are going to get rid of you . At this point Fritz told Jensen, you know we are being taken advantage of on the case incentive,22 and that Jensen replied that he was only doing what he was directed to do; that if he failed to follow orders he would be out of a job; and that no driver would be permitted to earn more than $ 10 a week in case incentive or overtime.23 Additionally, the record shows that about August and September, Respondent tried to persuade employees Fritz and Ciccarelli to leave their employment with it and seek employment elsewhere. The facts with respect to these incidents are set forth in the sections hereof dealing with the discharge of the employees mentioned and will not be repeated here. 4. Alleged discrimination against union adherents a. Reprimands to, suspension, and discharge of Fritz Fritz worked for Respondent as a driver from April 1970, until his termination in late September 1973. He was a union member, having been initially referred to Respond- ent through the hiring hall. From June 1972, he was the Union's shop steward at Respondent's establishment, and the Union's observer at the election held on June 4. Fritz's immediate supervisor David Jensen, admitted that prior to June 4, Fritz was a "very good driver" and never failed to 20 Haralambos and Abbott both testified that they gave no such instructions to Jensen. I find no reason to accept or reject their testimony in that regard. It is sufficient, as I have found, that Jensen did so, discrediting, as I do, all hit testimony that in making his assignments he gave consideration only to the manner that the product could be distributed with the greatest efficiency. Si Haralambos denied that he made such a statement to Boughton or anyone else. I have credited Boughton because he impressed me as a reliable witness, while Haralambos did not. 22 This refers to the prior practice of paying the driver on a truck that has no helper, an incentive of 10 cents per case delivered in excess of 1,250 a week. Fritz testified that the elimination of the case incentive reduced his earnings as much as $100 to $140 per month. The record shows that the complete his assigned work.24 On August 15, Fritz was assigned as the driver of a truck loaded with 1,360 cases of beer, to be delivered at 14 designated locations. Dickenson was assigned as a helper on this truck. Sometime during the afternoon, when it became apparent that he could not complete all the deliveries assigned him that day, Fritz in accordance with usual practice called Jensen and asked whether he should work overtime to make all the deliveries, or return to the plant at the normal hour without completing the deliveries. Jensen told Fritz to return to the plant at the normal time. When Fritz arrived, Jensen gave him a written reprimand which stated: Driver failed to complete a day's work which consisted of 14 stops and 1360 cases. Brought back 3 stops [illegible] 359 cases. Helper was Pete Dickenson. Would not sign or accept copy. Reason was not given for failure to complete work. Fritz explained the difficulties he had in completing his assignment, but did not testify that he so informed Jensen, but that Jensen rejected these as being matters which occur in the normal day's work. This was the first time Fritz had received such a reprimand during his employment.25 Jensen admitted that whether a particular assignment was "light" or "heavy," involved consideration of not only the number of stops and the number of cases, but the nature of the area to be served, the distance from the plant, as well as the accessibility of ramps, docks, and loading facilities. On August 17, Fritz was assigned a route which called for 13 stops to deliver 1152 cases, with Dickenson as his helper. The evidence shows that on this occasion Fritz failed to make two stops where a total of 291 cases were to have been delivered. When Fritz called Jensen to advise him that he could not complete the work within the regular hours, Jensen refused to authorize overtime and directed Fritz to return to the plant. At the plant, Jensen gave Fritz a written reprimand which reads as follows: Driver failed to complete day's work which consisted of 13 stops and 1152 cases. Driver brought back 2 stops for 285 cases. This is driver's second offense for not finishing assigned day's work. Discipline take 3 day layoff starting 8-20-73. Would not sign. On the reverse side of the reprimand appears the following: Two stops had to wheel because dock was not available (Ralph's Liquor Stores). Also had to wait for car to pull out from Santa Anita Liquor. (Usual problems during day delivery.) lower figure was probably the more accurate one. 23 Based on the credited testimony of Fritz and Clarke. Jensen denied making such statements, but I do not credit his denials. 24 Jensen also testified that following June 4, Fritz work performance was less satisfactory in that he failed to make deliveries required of him. The contention is hereafter considered and disposed of. 25 Based on the credited testimony of Fritz. Jensen testified that the first time Fritz returned stops was on August 7, and that he spoke to Fritz about it, but I do not credit his testimony in that regard . Transcripts of Respondent's records in evidence show that August 15 , was the first time in the August 13 to September 19 period that Fritz failed to deliver any appreciable number of cases. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jensen admitted that this legend reflects what Fritz told him that day as the reason he was unable to complete the work.26 A day or two following his return to work after the disciplinary layoff, Fritz had a conversation with Jensen. Although the precise manner in which the conversation arose is not disclosed by the evidence, the credited evidence shows Jensen told Fritz, in substance , I know you fellows are getting a screwing, but there is nothing I can do about it, because we have to go with the people who voted for the Company. Jensen then asked Fritz how he would like to have another job, saying it would be with a union house and probably he would be making more money with better working conditions . Fritz asked about the location of the job, but Jensen was unable to give him further information and suggested that he see General Manager Abbott, which Fritz did. Abbott told Fritz that the job was with Sunset Beverage (herein Sunset), that he had been talking to Jensen about Fritz and his work record, that Fritz was one of the Company's best drivers, and if Fritz wished him to do so, he should set up an appointment for him with officials of Sunset. Abbott additionally told Fritz that eventually Sunset would also have a decertification election, and that Sunset would probably ask Fritz concerning his views about the Union before it would hire him. Fritz made no reply to these statements, but asked Abbott to make the appointment for him. Abbott agreed to do this, and to furnish Fritz with direction for reaching Sunset's premises . At the end of that day Fritz found attached to his timecard a note furnishing directions for reaching Sunset. This note, in evidence as General Counsel's Exhibit 4, is admittedly in Jensen's handwriting. A day or two later, Jensen told Fritz not to bother going to Sunset, because the job had been filled.27 On September 19,28 Fritz was assigned to a route on which 1212 cases were to be delivered in 15 stops, with Weisman as • his helper. According to Fritz this was basically the same route he worked on August 15, and had difficulty completing. Fritz, after informing Jensen that he would be unable to complete the assignment, was told to return to the plant. He did so with 137 cases, leaving one stop unserviced. At the plant Fritz found a message to see Jensen, and upon doing so was told by the latter that he was being dismissed for not doing a day's work. Respondent's work records for the period Fritz worked after the two reprimands on August 15 and 17, above 26 The last phrase in parenthesis quoted from the reprimand was, I assume, Jensen's reaction to the explanation given by Fritz for his inability to complete the assignment. 27 My findings with respect to this incident are based on the credited, and in large measure uncontradicted and corroborated testimony of Fritz. Jensen admitted that he discussed the subject with Fntz, and did so because Abbott told him that there would be a couple of vacancies at Sunset, and he had "heard" that Fritz (and Dickenson to whom he also spoke on the subject, as hereafter set forth), were "unhappy." Jensen also testified that he "thought" he told Fritz that Sunset was a union shop. Abbott testified he heard "rumors" that Fritz and Dickenson were "unhappy" in the plant and wanted to be "elsewhere"; that because of his contacts with other distributors, he learned that Sunset had two openings and would be willing to talk to the two men he had in mind if they could clear it with the Union; that he passed this information on through Jensen ; that while there was some discussion about where Sunset was located, and that this information was made available to Fritz and Dickenson , the only thing he heard further discussed, show the following with respect to Fritz's performance. Stops Stops Cases Cases taken Doliv- taken Deliv- Cases Date out *red out Bred Retd. 8/23 16 16 307 307 0 8/24 18 18 410 410 0 8/28 20 20 463 463 0 8/29 13 13 1273 1273 0 8/30 23 22 362 356 6 8/31 22 22 336 334 0 9/4 11 10 617 610 7 9/5 15 12 1247 906 341 9/6 21 21 350 348 2 9/7 19 19 335 335 0 9/10 14 13 1120 1065 55 9/12 16 14 646 504 142 9/13 16 14 1149 1011 138 9/14 19 17 420 380 40 9/17 14 13 575 568 7 9/19 15 14 1212 1075 137 Respondent offered no evidence to explain why repri- mands were not issued to Fritz for his failure to complete all deliveries on September 5, 10, 12, 13, and 14, when a substantial numbers of cases were returned undelivered, and on September 5, 12, and 13 , when returns were in excess of the undelivered cases on September 19, and for which Fritz was last reprimanded and discharged . Indeed Jensen testified that he made the decision to discharge Fritz on September 19, after Fritz brought back the 137 cases. b. Reprimand to, suspension, and discharge of Dickenson Dickenson worked for Respondent as a driver and/or helper from April 1970 until his discharge on September 28, 1973, under circumstances hereafter detailed. Dicken- son was hired by Respondent upon referral from the hiring hall, and at all times during his employment was a member of the Union, of which fact Respondent was aware. Prior to August 7, Dickenson never received a reprimand, nor was he in any manner criticized for his work. Indeed Jensen admitted that in the past Dickenson was one of the better drivers from the standpoint of completing his assigned work. about the matter was that the two men never presented themselves at Sunset, and nothing further was done. Abbott denied telling Fritz that the latter was one of his best drivers; that Sunset had plans for a decertification election at a future date ; that Sunset would ask him his views about the Union ; simply that the man to see at Sunset was Pruss, but could not recall whether he told this to Fritz directly or through Jensen. To the extent that the testimony of Jensen and Abbott conflict with that of Fritz on this point, I credit the latter. 28 The complaint alleges that Fritz was discharged on "or about" September 21. The only testimony on the date was that given by Fritz and Jensen. Fritz testified that his discharge occurred on the same day that he was given a third and final reprimand, which is not in evidence . Jensen testified that on September 21, he recommended to Abbott that Fritz be discharged, and that upon receiving his approval he discharged Fritz. However, Respondent's work records in evidence show Fritz's last day of work as a driver was September 19. Accordingly, I assume that this is the date of his final reprimand and discharge. STANDARD BEVERAGE, INC. On August 16, Dickenson made a delivery to a customer, with instructions to collect payment on delivery. Without prior authorization Dickenson permitted the customer to charge the amount of the invoice . The following day, after the office had the opportunity to check all the paperwork, he gave Dickenson a reprimand for deviating from instructions and extending credit without prior clearance. Dickenson admits the facts, testifying that this was an error on his part, for which he was entirely to blame.29 On August 21, Dickenson was assigned as driver to deliver 1,340 cases at 13 stops, with Ciccarelli as his helper on the truck. According to Dickenson, whose testimony in that regard is uncontradicted, he was delayed that day by a wreck on the freeway, and at one stop was without the services of his helper because of the nature of the neighborhood , which made it necessary for the helper to remain with the truck at all times to guard against pilferage. About midafternoon, Dickenson called the plant and informed Jensen that because of the aforementioned events he would not be able to service all the stops assigned to him by the normal end of the day, and asked for instructions. Jensen told Dickenson to return to the plant by 4 p.m. When Dickenson arrived at the plant, with 118 cases having failed to service two stops, Jensen gave him a reprimand reading: Driver failed to complete a day's work which consisted of 13 stops and 1340 cases. Driver brought back 2 stops for 118 cases. Helper was Jim Ciccarelli. Best's Liquor said took extra time. No other problems.30 In accordance with Respondent's practice of not repri- manding the helper unless the driver made a specific complaint against him, no action was taken against Ciccarelli. On September 18, Dickenson was assigned to deliver 14 stops for a total of 1,213 cases . Again Ciccarelli was his helper. The record does not show just why Dickenson was not able to complete his assignment that day, but when he returned to the plant Jensen handed him a reprimand which reads: 291 After checking at the office, Dickenson went to change clothes, and finding his uniforms gone from the locker, and his timecard removed from the rack, he went to Jensen to find out the reason for this, and was informed that he was being let go. No reason was given him for his termination. Jensen did not claim that he gave Dickenson any reason for his termination . His testimony, as well as that of Abbott on this point, was that on September 28, the last workday in the month, the final decision was made to convert from "presale" to "driver-sale," on October 1, and that this required a reduction from 16 to 14 drivers, and that Dickenson and Ciccarelli (whose termination is hereafter considered), were selected for discharge that day to reduce force to the number indicated. According to Jensen, the decision as to which two employees to terminate on September 28, was made on the basis of Work performance and attitude; on the stops they were able to complete; on what they brought back; com- plaining around the plant ; other drivers complaining when working with the individual. . . . The perfor- mance now with what their performance was in the past. No evidence was introduced that Dickenson was a complainer, or that other drivers complained about him. With respect to Dickenson's record for returning stops, the evidence shows that between August 13 and September 28, Dickenson worked as a driver a total of 21 days.31 On I 1 of these days he was assigned a helper, and on the remaining 10 he worked, alone. On those occasions that he had a helper the load varied from a minimum of 1,138 cases to a maximum of 1,469 cases, with an average of 1,271. The 10 assignments that Dickenson worked alone ranged from a minimum of 288 cases to a maximum of 683, with an average of 534.5 32 The records also show that in the August 13 to September 28 period Dickenson completed all his assignments except in the following instances: Cases Stops Cases Stops taken Deliv- Deliv- Cases Date lbsgd. out ered Bred Retd. Driver failed to complete a day's work which consisted of 14 stops and 1213 cases. Driver brought back 3 stops for 215 cases. This is driver's second offense for not finishing 'assigned day's work. Discipline take 3 days layoff starting 9-18-73 ... . On September 28, the day Dickenson was terminated, he was assigned what he described as a "very easy route," namely to deliver 527 cases among 15 stops . Apparently, no helper was assigned. Dickenson completed his assign- ment and returned to the plant between 1:30 and 2 p.m. 29 Based on the credited testimony of Dickenson and Jensen , which is not in conflict. 30 Jensen testified that Dickenson gave no valid reason for not completing his assignment on August 21. To the extent that his testimony may be regarded as in conflict with that of Dickenson, I credit the latter. Jensen also testified that if an employee's reason for not completing his assignment was simply too much work, this was not noted on the reprimand, but if there was a sp9cific complaint this would be noted. Why Jensen did not regard the two reasons given him on August 17, as an adequate excuse for Dickenson's failure to complete his assignment that 8/3 18 621 14 479 142 8/14 14 1244 12 1013 231 8/17 17 288 15 247 41 8/21 13 1340 11 1212 128 8/22 13 666 10 626 40 9/5 13 1138 12 1065 73 9/11 14 1235 12 1039 196 9/18 14 1213 11 996 217 9/24 18 502 17 487 15 As above indicated Dickenson was given reprimands for failing to complete his assignment on August 21 and day, Jensen did not explain. 31 On the remaining days he worked as a helper. 32 The worksheet referred to shows that on September 3, Dickenson was assigned to deliver 122 cases to 14 stops and that he had no helper . As this would be an average of 87 cases at each stop, and assuming an average of 30 minutes at a stop, which would of itself account for 7 hours work, not counting driving time for the day, and the fact he never had another assignment on which he worked alone, that exceeded 683 cases, I assume that this was an error, and that he did have a helper that day. My figures reflect this assumption. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 18. No evidence was introduced showing why Dickenson was not reprimanded on the other dates indicated above, when he failed to deliver a substantial number of cases. Nor was any evidence introduced to show that Dickenson was a less competent employee than the ones retained, or why he could not have been used as a helper. c. Reprimand to and discharge of Ciccarelli James Ciccarelli worked for Respondent as a driver and/or helper from July 1971, until his termination on September 28. Prior to August 21, he had not been criticized in any way for his work, and indeed had been commended by Abbott at one of the preelection dinner meetings, as well as by Kober, an admitted supervisor, as a good worker. On August 15, Ciccarelli was assigned as the driver on a route with Clarke as a helper. When Ciccarelli returned to the plant that afternoon at the normal hour, Jensen handed him a reprimand reading: Driver failed to complete a day's work which consisted of 14 stops and 1425 cases. Brought back 4 stops for 297 cases.33 Accounts had too much inventory to rotate and finish all the stops. Helper was Carey Clarke. Would not sign. Ciccarelli received no other reprimands for failing to make deliveries, but on September 26, Jensen gave him the following reprimand: Employee did not notify the office that he was $10.16 over. When checking in on 9-25-73 the girl missed a paid invoice and put it in with the charge invoices thus making the driver $10.16 over. It is the driver's responsibility to keep his money separate from his personal funds and to notify the office if he has any extra money left after checking in. As of 3:30 p.m. on 9-26 driver had not reported being over any money. Ciccarelli's work record during the August 13-September 28 period, shows that he was the driver and responsible for deliveries on 27 days. On four of such days (August 14 and 15 and September 6 and 12, he had a helper assigned to him) and on the remaining 23 days he apparently was the only man on the truck. On all of the 27 days referred to, he completed all his stops, except as indicated by the following: Stops Stops Cases Cases taken Deliv- taken Deliv- Cases Date out ered out eyed Retd. 8/13 21 17 735 607 128 8/14 14 11 1226 1029 197 8/15 14 10 1425 1087 338 8/23 23 22 325 320 5 9/5 24 23 445 415 30 9/14 19 18 487 460 27 9/19 17 16 515 508 7 9/24 17 16 537 524 13 9/25 21 20 441 413 28 On September 28, Ciccarelli had what he regarded as a "relatively easy" run. Finishing his work and returning to the plant early, he found his locker empty, and a note to see Jensen . Ciccarelli concluded that he was to be terminated, and went to Jensen's office and gave him his locker keys. Jensen remarked, "So you know." Ciccarelli remarked in effect, it is obvious that you have been trying to get me all week. Jensen responded in effect, I could have really gotten you had I tried, and handed Ciccarelli his final check which included his vacation pay. Respondent's reason for terminating Ciccarelli is, as in the case of Dickenson, that the decision to go to driver sales on October 1, reduced the number of routes from 16 to 14, requiring a reduction of two men, and that Ciccarelli and Dickenson were selected for termination because they were the two least efficient of the driver-helpers. No testimony was offered by Respondent to explain why Ciccarelli could not have been assigned as a helper, in which capacity he had so frequently served, nor does his work record, when compared with that of other drivers, indicate that he was among the least efficient drivers, from the standpoint of deliveries made, as Respondent claims. Several weeks before his discharge, Ciccarelli was engaged in conference by George Kober, an admitted supervisor Kober opened the discussion by stating that what he was going to say was his own idea; that it had not been suggested by anyone else; that it was strictly between the two of them; and that if there was ever any attempt to use it against him, he would deny it. Kober then stated that he knew that Ciccarelli was prounion, and that although he was a good worker, he had to understand that there was no place for him with the Company; that he had said things against Haralambos; and that he had a bad attitude. Kober then stated that Ciccarelli had almost 2 weeks vacation due him, but if the Company had to fire him he would not get paid for that, and added if we want to get you, we can get you, just by following you until you make a mistake, and then fire you for that. Kober then suggested that if Ciccarelli would quit, he would give him a good recommendation, and he would get paid for his vacation time. Ciccarelli asked for time to consider. The following day, Kober sought out Ciccarelh and asked if he had reached a decision. Ciccarelli replied that if he quit he could not collect unemployment, and that he would just stay on. Kober replied, "I guess that's how it is going to be," 34 d. Reprimand to and suspension of Boughton Bruce Boughton employed by Respondent from May 1972, until discharged in August or September,35 was hired through the Union's hiring hall, and at all times material 33 Ciccarelli's August 13 to September 28 work record shows that on August 15 he returned to the plant with 338 cases, rather than the 297 stated in the reprimand. 3' Based on the credited testimony of Ciccarelh . Kober denied that he had any conversation with Ciccarelh of the nature the latter attributed to him, but did admit that he may have told Ciccarelh that he was a good driver I credit Ciccarelli 35 The complaint does not allege, nor does the General Counsel contend that Boughton's discharge was in any respect unlawful. STANDARD BEVERAGE, INC. 293 was a union member . He worked as a driver and/or helper on the delivery routes. Except as hereinafter indicated, Boughton was never reprimanded, or otherwise criticized by Respondent for his work performance. As heretofore found, after the Board election, Boughton was told by Supervisor Jensen, that those employees who voted for the Union should have the courage of their convictions and quit their employment with Respondent and get a job at a union establishment. On August 15, Boughton was assigned as driver on a delivery route, with Loell as his helper. When they returned to the plant at the usual hour of 4 p.m., Jensen gave Boughton the following reprimand: Driver failed to complete a day's work which consisted of 14 stops and 1255 cases. Driver brought back 2 stops for 202 cases. No problems just 'not enough time.' Helper was G. S. Loell. No reprimand was given Loell in accordance with the usual practice of not reprimanding the helper unless the driver made a specific complaint that the helper failed in some way to properly discharge his duty. Respondent's work records show that Boughton worked August 13, 14, and 15, as a driver.36 On August 13, he was assigned a route which called for the delivery of 562 cases in 18 stops. He apparently had no helper . Boughton delivered 456 cases, and although he failed to deliver 106 cases at 2 stops, he was not reprimanded . On August 14, he was assigned to deliver 1 ,212 cases at 14 stops, with Weisman as a helper. He delivered to all 14 stops, and returned to the plant with two cases, which Respondent apparently regarded as completion of the assignment. Again he was not repri- manded. Boughton's work on August 15, is related above. Thus it will be noted that on the 3 days Boughton worked as a driver, he returned stops on two of them, and considering only the number of cases involved, on August 13, Boughton completed 81 percent of his assigned work, and on August 15, he completed 83 percent of his assigned work. Why Boughton's performance on August 15 required a reprimand, but his performance on August 13 did not, Respondent did not explain. On August 27, Boughton was given a disciplinary layoff of 2 weeks starting from that date , for unexcused absence from work, which the General Counsel contends was discriminatorily motivated. The evidence shows that Boughton had been on sick leave 1 week and was instructed that when he felt able to return to work, to come with a doctor's certificate. When Boughton did not return to work the following week, Respondent called his home on a number of occasions, but got no answer. Additionally, Jensen who lives in the same general neighborhood as Boughton, drove by the latter's home several times both going to and coming from work, but saw no car belonging to Boughton or his wife on the premises. When Boughton returned to work on August 27, he produced no doctor's certificate, and the reprimand given him at that time recites 36 Apparently, Boughton's work at all other tunes was as a helper. 31 Clarke testified that he was terminated by Respondent in late August 1973 for missing work . The General Counsel did not allege, nor did he contend at the trial that Clarke's termination was unlawful . He contends only that Respondent reprimanded Clarke because the latter engaged in that he then "had a nice tan," and that his appearance was not that of one who had been too ill to work. Boughton did not deny that he failed to produce a doctor's certificate, nor did he deny or give any explanation of the other factors which appear on the reprimand . Notwithstanding my finding hereafter made, that the reprimand given Boughton on August 15, for failing to complete a day's work, was discriminatorily motivated, I find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that the reprimand of August 27, and the disciplinary layoff based thereon, were discriminatorily motivated, and hence the allegations of the complaint in that regard should be dismissed. e. Reprimand to Clarke Carey Clarke worked for Respondent from January 1969, until his termination in August 1973.37 Clarke, who was referred to Respondent by the unemployment service, worked first as a janitor, and successively thereafter as a warehouseman, and driver and/or helper on the delivery routes. At some time not clear from the record, Clarke became a member of Teamster Local 896; not of Local 203, the Charging Union here38 Except as hereafter indicated, there is no evidence that Clarke was ever reprimanded, or that his work performance was in any way criticized by Respondent, and I have heretofore set forth the coercive statements that I have found that officials of Respondent made to Clarke. Respondent's work records show that after August 11, Clarke worked a total of 5 days as a driver,39 with the following results: Stops Stops Date Asagd. Compld. Cases Cases Cases taken Deliv- Undeliv- out ered sired 9/13 13 13 591 410 181 9/16 24 21 436 414 22 9/20 19 18 490 440 50 9/22 21 17 326 239 87 9/23 23 18 311 255 56 On August 16, upon returning to the plant from his route, Clarke was given a reprimand by Jensen , reading as follows: Driver failed to complete a day's work which consisted of 24 stops and 436 cases. Brought back 3 stops for 21 cases. No real problems just the everyday type of hold ups. Credit, rotation, overstocked accounts. Just too much work. Just why Clarke's work on August 16, called for a reprimand, and his performance on the other days, as above indicated, did not, Respondent failed to explain. union or other protected concerted activities. 38 Local 8% is a party to the contract which bound Respondent until May 31. 39 On other dates Clarke worked as a helper on trucks driven by other employees. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD f. Reprimand to Loell G. S. Loell worked for Respondent from September 1969, until January 1974, as a driver and/or helper.40 He was a member of the Union, and referred to and hired by Respondent, pursuant to the hiring hall procedures. Loell originally worked as a driver/helper but at some time not entirely clear from the record, apparently in late 1972, Loell sustained a disability and was assigned to lighter work 41 When Loell took that work there was admittedly no representation made to him as to how long it would last, but General Manager Abbott , with whom Loell discussed the matter, "implied that it was from now on." On August 7, without prior notice , Respondent ordered Loell transferred back as a driver and/or helper, delivering beer to Respondent's customers. Because he was unaccus- tomed to doing such heavy work, Loell found that he could not always complete his assignments . Between August 13 and September 5, Loell had seven assignments as a driver, and on six of these he was the only person on the truck, while on one occasion (August 21), Clarke was his helper, and his work record shows the following performance. Cases Stops Stops Cases Deliv- Cases Date Assgd. Compld. Assgd. grad Retd. 8/13 19 11 619 487 132 8/16 23 14 483 383 100 8/20 18 13 510 447 63 8/21 14 10 1233 891 342 8/27 20 20 411 401 10 8/28 23 16 389 292 97 9/5 23 16 464 377 87 On August 16, Loell was given the following reprimand: Driver failed to complete a day's work which consisted of 23 stops and 483 cases. Brought back 9 stops for 100 cases. Left small stops in order to make time stops. Victor's Liquor stock extra time. Truck 21 did not run properly. Also left rear door hard to move. Checked out truck runs OK and door also seem to work without any problem. On August 21, Jensen gave Loell a second reprimand, reading: Driver failed to complete a day's work which consisted of 14 stops and 1233 cases. Driver brought back 4 stops for 325 cases. This is driver's second offense for not finishing assigned day's work . Disciplinary action taken 3 day layoff starting 8-22-73. Other drivers are finishing similar routes without problems . Helper was Carey Clarke. I talked to Loell 8-20-73 about not finishing assigned day's work. 8-20-73 he brought back 5 stops. I told him that he must start finishing his assigned work or I was going to have to lay him off. Problems on run today-no problem just too much for two men. No evidence was offered to explain why Loell's perfor- mance on August 16 and August 21, merited discipline, but on the other 5 days he worked as a driver, did not. g. The discharge of Arnold Robert Arnold was employed by Respondent as a driver and/or helper from July 1971 until his discharge on August 15, for allegedly misappropriating company funds. Arnold was referred to Respondent through the hiring hall, and during the entire period of his employment was a member of the Union. Respondent makes no complaint about Arnold's work performance, except for the alleged misap- propriation of funds. Respondent's system for having drivers account for monies they collect, operates substantially as follows: The driver is charged with the number of cases in his load that day. Upon prior authorization from the office he may deliver beer to a customer on credit, but in such cases he obtains the customer's signature to a charge slip. In addition, the driver is authorized to receive any payment on account the customer may make, and to evidence such a transaction he prepares a paid on account slip (herein POA slip). When the driver checks in at the end of his day, he is required to turn into an office clerical all papers evidencing his transactions. The office clerical prepares an adding machine tape charging the driver with (1) the value of the load he took out that morning, and (2) the amounts represented by the POA slips, and these are totalled. Against this total the driver received credit for (1) any beer he may return to the plant; and (2) the authorized charge slips signed by a customer. The difference between the two sets of figures is the amount needed to balance his account, and this may be in the form of cash or checks, which in some instances are third party checks. It is important to note also, that because the driver may turn in a number of third party checks, Respondent does not post to its accounts receivable ledger from checks, but from the POA slip which the driver makes out when he collects on account from a customer. On August 8, among the customers where Arnold called, was an establishment known as Liquor House, operated by a Mr. and Mrs. Reyas. There Mrs. Reyas gave Arnold a check for $99.89 in payment of goods she had received the preceding week and, which had then been charged to her account. At her request Arnold receipted the original invoice which Mrs. Reyas had in her files, but Arnold did not prepare a POA slip to evidence the receipt of the amount she paid him. According to Arnold, just before returning to the plant on August 8, he stopped and separated the charge and POA slips, to make sure they were in order. Finding only two POA slips, and knowing that he had collected in three places, he began to reconstruct his transactions that day to determine where else he collected on account, and concluded that it was a customer known as Carriage Room Enterprises, where he apparently had instructions to collect $42.96. Arnold testified that he then prepared a POA slip for Carriage Room Enterprises, in the amount of $42.96, and proceeded .o The complaint does not allege nor does the General Counsel contend that Loell's termination was a violation of the Act. 41 This work only required Loell to visit the premises of a customer, check the date on beer containers, and if necessary rotate the stock . It only required the exertion of "lifting a six pack of beer [and l moving it. " STANDARD BEVERAGE, INC. 295 to the plant, giving all his papers to Sandra Sloan, the clerical who prepared the tape settling his transactions for the day. There is no dispute that among the papers Arnold turned in at this time were three POA slips, including the one made out for Carriage Room, and the check given him by Mrs. Reyas. Still according to Arnold, Sandra Sloan prepared the tape which he signed, and announced that he was $50 over, and that he immediately told her there was a mistake somewhere ; that he checked the figures hastily and realizing where the error was, told Sandra Sloan to destroy the POA slip made out to Carriage Room , as well as the tape that she had prepared, that he would prepare a new POA slip for the Reyas account , and she could then prepare a new tape. Arnold testified that he saw Sloan drop the adding machine tape, and the Carriage Room POA slip, in the wastebasket, prepare a new tape which reflected the POA slip for Reyas, but not the Carriage Room slip; that when this tape was prepared his account balanced, and that he then signed the tape paid over all the money he had collected, and left the premises. Arnold testified that the tape in evidence (G.C. Exh. 7) is the first tape Sloan prepared on August 8, and that he had no knowledge as to what happened to the second tape he claims she prepared. On August 9, Arnold called in ill, and was out each day thereafter until August 15, and that he came to the plant that day because it was payday, and he had 3 days pay due him. Sloan identified the various documents constituting General Counsel's Exhibit 6(a) to (w), and which is the supporting data from which she prepared the tape which is General Counsel's Exhibit 7. She testified that General Counsel's Exhibit 6(u), (v) and (w), and which includes the Carriage House POA slip of $42.96, were the only POA slips Arnold turned in that day; that Arnold said nothing to her about any error; made no mention of a POA slip for the Reyas account ; that General Counsel's Exhibit 7 is the only tape she prepared for Arnold that day; he made no request that she destroy that tape, or that she prepare another; and that he simply signed the tape , turned over to her the checks he had, (which included the Reyas check), and sufficient cash to balance the account 42 The matter came to a head on August 14, when another driver stopped to make a delivery at the Reyas establish- ment, for which he had instructions to collect on delivery because the goods delivered during the week preceding August 8, had not been paid for . Quite naturally, Mrs. Reyas protested that she had paid the bill and produced her copy of the invoice receipted by Arnold. When the matter came to the attention of Company President Haralambos, he, with Mrs . Reyas' permission, obtained 42 For reasons hereafter detailed, I find it unnecessary to resolve the conflict in the evidence of Arnold and Sloan. 43 Arnold himself admits that in his conference with Haralambos he made no mention of a second tape , or the preparation of a new POA slip and the requested destruction of the one he allegedly made out and turned over in error. Additionally, it may be pointed out that Arnold 's affidavit, given August 22, 1973, just 2 weeks after the events here involved, and I week after his interview with Haralambos, he makes no mention of having told Sloan that the tape she prepared was in error , that he made out a new POA slip for the Reyas account , or that he asked Sloan to prepare, or that she did in fact prepare a second tape. 44 It may be pointed out that Haralambos incorrectly computes the amount Arnold allegedly withheld . Respondent's own evidence shows, and from the bank a photo copy of her check which Respondent had deposited to its account, and which her bank had paid. Respondent also caused its office force to make a complete reaudit of all settlements made by the various drivers on August 8, on the chance that perhaps some error had been made in its bookkeeping department, but no error was found. On August 15, when Arnold appeared at the plant, he was told that he was wanted in Haralambos' office. Haralambos there told Arnold that the facts indicated that Arnold had failed to make out a POA slip for the $99.89 he collected from Reyas and pocketed that amount of money, and asked Arnold if he had any explanation to offer. According to Haralambos, Arnold only replied that he turned in the check,43 and that he explained to Arnold that the failure to turn in the POA slip meant that he needed $99,89 less in cash to balance his account when he checked in. Haralambos finally told Arnold that he was discharging him for stealing, and that the amount of $99.89 would be deducted from any wages, due him. Upon learning that such wages were insufficient to cover the amount, Haralambos told Arnold that he would be billed for the deficiency.44 C. Contentions and Conclusions 1. The 8(a)(1) allegations I find and conclude that Respondent violated Section 8(a)(1) of the Act in the following particulars: 1. The meetings called by Respondent in early 1973, at which it explained the pension and insurance plans, and which were attended by virtually all employees, both in and out of the unit represented by the Union. Although the evidence shows that neither Respondent nor its agent made any comparison of the plans provided for by the union contract, with that Respondent provided for its unit employees, certainly the union members present could draw their own conclusion with respect to the relative merits of the two plans. And it is this fact which probably explains why those witnesses who gave testimony on the subject, said that with respect to almost every item, the provisions of the plans for nonunit employees were superior to the benefits provided in the union contract. As Respondent introduced no evidence tending to show that the conclusions reached by those listeners were unreasona- ble and unwarranted interpretations of what was said, I must assume that their interpretation of what was said was it is in accord with that of Arnold, that the latter reported to and accounted for a POA slip in the amount of $42.96, as collected from Carriage House, which in fact he had not collected. Thus the amount which Arnold allegedly failed to remit to the Company (even under the version of the facts advanced by Haralambos), was $56.93 ($99.89 - $42 96 = $56.93). It is also stated on the record that pursuant to established procedure , Arnold filed a claim for his wages with an agency of the State of California, which after some kind of hearing, ruled that Respondent should pay Arnold the wages withheld from him. The basis for this conclusion does not appear in the record. It also appears that the State Agency has no enforcement powers, and that Respondent has not complied with its directive ; any effort to collect from Respondent must be by independent action in the state courts. No such action has been brought. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasonable.45 In that sense it was more than a mere noncoercive statement of fact, as Respondent contends, but a clear promise of benefit to induce the unit employees to abandon their support of the Union. Although an employer faced with a union's campaign to organize his employees, may lawfully communicate to his employees his views about unionism in general, or his views about a particular union, the Supreme Court has made it clear that he may do so only so long as his communications "do not contain a threat of reprisal or promise of benefit" (N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 618 (1969)), and whether particular conduct falls on one side of the line or the other is determined by deciding "what did the speaker intend and the listener understand." (Id at 619.) I have found, supra, that the unit employees who testified on the subject, understood that the plan Respondent maintained for its nonunit employees was superior in virtually every particular to that provided in the union contract. I likewise find and conclude that Respondent's intent and purpose in inviting the unit employees to these meetings was to impress upon them that they too might enjoy those superior benefits if they would withdraw their support from the Union. If this was not Respondent's intent and purpose, then calling the unit employees to these meetings makes no sense and served no purpose.46 2. Abbott's statement to Clarke that Respondent would have to decertify the Union to convert to a driver-sales operation, and in that event would have no choice but to "get rid" of the Union drivers then employed by it, as well as Jensen's statement to Clarke at the Steerberger, that Respondent was going to "get rid" of all the Union supporters. 3. Abbott's statement to employees Fritz, Arnold, Boughton, Ciccarelli, and Dickenson, at one of the preelection dinner meetings in April, that Respondent wished to change to driver-sales type of operation, which would result in the elimination of some drivers, but more money for those that remained, and that it could not convert to the new system so long as the Union was the bargaining representative of the employees, because it could not afford to pay the $200 to $500 a week to a driver, as required under the Union contract. This was not only interference with the Section 7 rights of employees, but a promise of benefit if the employees would cease their support of the Union. 4. Abbott's statements to Ciccarelli in the parking lot of the restaurant after the dinner meeting, that he knew Ciccarelli was prounion and that if the Union won the then contemplated election, Respondent would operate with more two and three-man trucks to avoid paying the incentive bonus the employees were then earning. The first statement called upon Ciccarelli to declare himself as either for or against the Union, and constituted the coercion proscribed by Section 8(ax 1) of the Act, Beiser 43 A copy of the union contract is in evidence , but the profit sharing and insurance plan Respondent maintains for its nonunit employees, is not, and no evidence was introduced with respect to its provisions. 46 Haralambos testified on direct that he called these meetings because "several employees" had inquired about their benefits in the Company, and he thought the most expeditious way to explain them was through a meeting. On cross-examination Haralambos was more specific , saying that he had received such inquiry, and when asked to name anyone who had Aviation Corporation, 135 NLRB 399, 400 (1962); Certain- Teed Products Corporation, 153 NLRB 495, 507 (1965), and the second was a threat of more onerous working conditions if the employees continued to support the Union. 5. Abbott's statement to Clarke, when the latter voiced complaint about the nature of the assignment given him, that if he (Clarke) had voted the other way in the election, the assignments would be different. This was clearly, a statement that Respondent had retaliated against employ- ees because they assisted the Union by voting for it in the election. 6. Jensen's statement to Boughton that those employees who voted for the Union should have the courage of their convictions and seek employment at some establishment where union members are employed . This was plainly interference with the Section 7 rights of employees, and hence violative of Section 8(a)(1) of the Act. 7. Jensen's statement to Clarke and the other employ- ees assembled, that he was manipulating the work assignments in such a manner as to make certain that union adherents did not earn more than $10 from the bonus. This was an admission that 'Respondent was punishing the union adherents because of their support of the Union. 8. The manipulation of work assignments , as I have found, to prevent union adherents from earning the incentive bonus they theretofore earned, in retaliation for said employees having assisted or supported the Union, and to induce them to cease supporting the Union. This was clearly interference with the Section 7 rights of the employees. 9. Posting the rubber rat in the office, where all employees could see it, with the legend that Burton, an officer of the Union was a "dead rat." In context this was an interference with Section 7 rights of the employees. 10. The statement by Haralambos to Boughton made at the dinner following the announcement of the final results of the election , when the latter complained about the work assignments given him, that "if you don't like your job, why don't you quit?" This was an attempt by management to induce Boughton to quit, and thus rid itself of a known active union adherent. 11. Jensen's efforts to induce Fritz, and Kober's efforts to induce Ciccarelli to terminate their employment with Respondent and accept employment elsewhere. The violation is particularly flagrant in the case of Ciccarelli because Kober stated that if he quit he would be paid for his vacation, but if he waited until Respondent fired him, as it would do, he would get nothing. Both statements were plainly made to retaliate against Fritz and Ciccarelli for their support of the Union, and constituted interference with their Section 7 rights. made such inquiry, his answer was "I don't recall." I do not credit Haralambos in that regard, but rather conclude that no employee made such a request of him or of anyone in authority, that was communicated to him, but on the entire record including the demeanor of Haralambos while testifying, I am convinced that his testimony was simply an effort to provide what he thought would provide a lawful reason for his conduct . N.LR.B. v. Walton Manufacturing Co., 369 U.S. 404,408 (1962). STANDARD BEVERAGE, INC. 297 12. Based on my consideration of the entire record, I am convinced that the evidence supports the General Counsel's contention that all of the conduct herein set forth was engaged in by Respondent pursuant to a plan or purpose to rid itself of all employees who support the Union, as well as to rid itself of its contract obligations to the Union. This being the intent and purpose of Respond- ent's conduct, it follows that said conduct restrained and coerced its employees in the exercise of their Section 7 rights and hence violated Section 8(axl) of the Act. I so find and conclude. 2. The 8(a)(3) allegations I find and conclude that Respondent violated Section 8(a)(3) and (1) of the Act in the following respects: 1. By discriminatorily issuing reprimands to Fritz, Ciccarelli, Dickenson, Clarke, Loell, and Boughton, dis- criminatorily suspending Fritz, Dickenson , and Boughton and discriminatorily discharging Fritz, Dickenson, and Ciccarelli. My conclusions in these respects are based on the totality of the following considerations: (a) The evidence above set forth establishes , as I have found, that Respondent entered upon a plan or scheme to rid itself of its obligations to the Union , and of all employees who sought to assist or support the Union. Respondent's animus against the Union and all supporters thereof, is therefore established. (b) Respondent, through Abbott and Jensen, frankly told its employees that supported the Union, that if it succeeded in its purpose to bring about a decertification of the Union, it was going to "get rid" of the union supporters. That Respondent made good on that promise is demonstrated by the fact that by September 28, just 7 weeks after the final results of the election were announced on August 7, the employment of every union supporter in the unit involved had ended. (c) Each employee discharged by Respondent was, prior to August 7, a satisfactory employee with no complaint from Respondent as to the manner in which they performed their services. Respondent offered no evidence to dispute that offered by the General Counsel, that prior to August 7, drivers at times returned to the warehouse with undelivered merchandise , and that nothing was said or done about it. No evidence was introduced to show that in the post certification period the frequency or volume of undelivered merchandise was any greater than it had been prior thereto. (d) On August 13, immediately following the certification of the results of the election, Respondent instituted its system of reprimands, which none of the employees involved had thereto received, and within 7 working days every employee involved had been reprimanded at least once, and in some instances twice, for failing to complete all deliveries assigned to him.47 47 Fritz on August 15 and 17; Ciccarelli on August 15; Dickenson on August 17 and 21; Clarke on August 16; Boughton on August 15; and Loell on August 16 and 21. 48 1 have not overlooked the argument that might be made that the reprimands, while violative of Sec. 8(a)(1), do not violate Sec . 8(aX3) because as reprimands they do not affect the tenure of employment of such employees. As Respondent first suspended and then discharged three (e) The factors above enumerated adequately establish the General Counsel's prima facie case, and the burden of evidence then shifted to Respondent to explain away or establish the existence of a legitimate basis for its conduct. The only evidence it offered in that regard was the testimony of Jensen who, as heretofore stated, did not impress me as a credible witness, and the work records of these employees in the August 13 to September 28 period, with no records of performance in the prior period against which said records might be meaningfully compared, does not, in my opinion, adequately refute or overbalance the General Counsel's prima facie case. Moreover, it is plain that work records for the prior period must be in existence, and Respondent's failure to produce them appropriately gives rise to the inference, which I draw, that had such records been produced they would not have supported its position, for "the production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse" (Interstate Circuit v. United States, 306 U.S. 208, 225-226). (f) What all this adds up to is that promptly after achieving its goal of having the Union decertified as the collective-bargaining representative of the employees, as I have found, and to rid itself of those employees who assisted or supported the Union, six previously satisfactory employees became the target or victims of a series of reprimands, and suspensions, with three of them shortly afterwards discharged. From this the inference may appropriately be drawn that their union adherence was a strong motivating factor in the action against them. And when there is added to this the fact that the alleged justification for its action against these employees does not stand up under scrutiny, it is appropriate to infer that the stated reasons for its conduct is a pretext, and that Respondent's true motive, and the one that it desires to conceal, was the fact that these six employees were supporters of the Union. As the Court of Appeals for the Ninth Circuit stated the principle in Shattuck Denn Mining Company, 360 F.2d 1018, 1020: ... If he [the trier of fact] finds that the stated motive for the discharge is false, he can infer that there is another motive. More than that, he can infer that the motive is one the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. Accordingly, I find and conclude that Respondent discriminatorily reprimanded Fritz, Ciccarelli, Dickenson, Clarke, Loell, and Boughton, discriminatorily suspended Fritz and Dickenson, and thereafter discharged Fritz, Ciccarelli, and Dickenson, all because of their assistance and support of the Union, and thereby violated Section 8(a)(3) and (1) of the Act 48 employees because of the reprimands, and the reprimands being for an alleged failure to properly perform duties, which is normally the basis for a discharge, I find and conclude that they sufficiently affected the tenure of employment of the reprimanded employees to establish an 8(aX3) violation. See Neptune Meter Company, 212 NLRB 87 (1974). In any event, whether the violation is of both Sec. 8(a)(l) and (3), or of Sec. 8(axl) alone , in either event the remedy is the same. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Robert Arnold was a member of the Union and Respondent's animus was general and against all supporters of the Union, disposition of the General Counsel's allegation that Arnold was discriminatorily discharged involves other considerations, and must be decided on different principles. The sole ground urged by Respondent for its discharge of Arnold was that the latter had misappropriated company funds. A discharge for that reason has, without any exception that I am aware of, been held to be a discharge for cause.49 I deem it unnecessary, and therefore make no finding that Arnold did not misappropriate funds as Respondent contends. I hold only that on the facts outlined in section I ,B,J,(g), hereof Haralambos had reasonable cause to believe that Arnold failed to account for funds, or at least a substantial portion of what he admittedly collected from Mrs. Reyas. Paraphrasing the language of the Board in Sidney Wanzer and Sons, 171 NLRB 1324 (1968), one finds it difficult to overlook that when Haralambos confronted Arnold with the fact that he had collected $99.89 from Mrs. Reyas for which he failed to turn in a POA slip, and properly account, and asked Arnold for an explanation, the latter admittedly made no claim that he had presented such a slip when he settled his accounts with Sandra Sloan on August 8, or that he then asked her to prepare a new tape which correctly reflected the monies for which he was required to account. Indeed, he made no such claim even when, some 10 days after the event, he gave his affidavit to the Board agent. Accordingly, I must and do find and conclude that the General Counsel has failed to prove an essential element of his case, namely, that in discharging Arnold, Respondent was motivated by Arnold's union or other protected concerted activity. Sidney Wanzer and Sons, Inc., supra. Upon the foregoing findings of fact, and the entire record in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section I,C,I, hereof, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 7 of the Act. 4. By issuing reprimands to employees Fritz, Dicken- son, Ciccarelli, Clarke, Loell, and Boughton, by suspending Fritz and Dickenson, and by discharging Dickenson, Ciccarelli, and Fritz because they assisted and supported the Union, Respondent discriminated against each of them in regard to their hire and tenure of employment, and the terms and conditions thereof, to discourage membership in the Union, and thereby engaged in, and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to prove by a preponderance of the evidence that Respondent refused to hire employees dispatched from the Union hiring hall, as alleged in paragraph 6 of the complaint , or that the discharge of Arnold was discriminatorily motivated, and the allegations of the complaint in those respects should be dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed by the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Having found that Respondent restrained and coerced, and engaged in serious acts of interference with the exercise of rights guaranteed the employees by Section 7 of the Act, as well as extensive discrimination against employees in regard to their terms and conditions of employment-violations which go to the very heart of the Act-I conclude from the totality of such conduct that Respondent should be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129 NLRB 912, 915 (1960). Having found that Respondent discriminatorily repri- manded employees Fritz, Ciccarelli, Dickenson, Clarke, Loell, and Boughton, discriminatorily suspended Fritz and Dickenson, and discriminatorily discharged Fritz, Ciccar- elli and Dickenson, it will be recommended that Respond- ent be required to (1) expunge from its files and records all reference to the fact that said employee was reprimanded or suspended under the circumstances herein found unlawful, and notify the employee involved, in writing, that it has done so; (2) upon request of the employee involved, but not otherwise, notify in writing, any employer to whom it has been asked to furnish reference on said employee, with a copy to the employee involved, that it has been ordered by the Board to expunge from its records all reference to the fact that said employee was reprimanded or suspended by it, and that it has fully complied with such order; (3) offer Fritz, Ciccarelli, and Dickenson immediate, full and unconditional reinstatement to his former or substantially equivalent job, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings suffered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he would have earned as wages from the date of his discharge to the date Respondent offers him reinstatement, as aforesaid, less any amount he may have earned during said period, to be 49 Sec. 10(c) of the Act provides that. to him of any backpay, if such individual was suspended or discharged No order of the Board shall require the reinstatement of any individual for cause. as an employee who has been suspended or discharged , or the payment STANDARD BEVERAGE, INC. 299 computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and (4) make whole Fritz and Dickenson for the earnings lost by reason of their discriminatory suspension, with the usual deduction for interim earnings and in accordance with the formula mentioned in (3) above. Additionally, it will be recommended that Respondent be required to preserve and upon request make available to authorized agent of the Board, all records necessary or useful in determining compliance with the Board 's Order herein, or in computing the amount of backpay due. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER50 Respondent, Standard Beverage, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising improved retirement and health and welfare benefits to employees to induce them to cease assisting and supporting a labor organization. (b) Telling employees that it planned to terminate or otherwise cease employing those employees that assist or support a labor organization. (c) Promising employees improved wages or working conditions if they would cease supporting a labor organiza- tion. (d) Threatening employees with more onerous working conditions if they continued to support a labor organiza- tion or telling employees that assignments would have been more lenient had they not supported a labor organization. (e) Interrogating employees concerning their assistance or support of a labor organization, or requiring employees to declare themselves as being for or against a labor organization. (f) Urging employees to seek work with employers of union adherents, because they had voted for a labor organization in a Board conducted election , or otherwise assisted or supported a labor organization. (g) Manipulating work assignments so as to deprive employees of the opportunity to earn an incentive bonus, because they assisted or supported a labor organization. (h) Engaging in a plan or scheme to bring about the decertification of a labor organization which is the collective-bargaining representative of its employees in an appropriate unit. (i) Discouraging membership in or activities on behalf of Beer Drivers, Salesmen & Helpers Union Local 203, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees, by discharging, suspending, so 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. issuing reprimands to, or in any other manner discriminat- ing in regard to the hire or tenure of employment or any term or condition of employment of its employees. (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer James T. Fritz, Peter Dickenson and James Ciccarelli immediate, full and unconditional reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make each of them whole for the wages they lost, in the manner set forth in the section hereof entitled "The Remedy." (b) Make whole James Fritz and Peter Dickenson for the wages they severally lost by reason of their discriminatory suspension as herein found, in accordance with the formula set forth in the section hereof entitled "The Remedy." (c) Expunge from its records and files all reprimands, or suspensions and reference to reprimands or suspensions herein found to have been discriminatorily issued by it to James Fritz, James Ciccarelli, Peter Dickenson, Carey E. Clarke, G. S. Loell, and Bruce Boughton, and advise each of them in writing, that it has in compliance with this Order, expunged such material from its files. (d) Upon request of any of the aforesaid employees, but not otherwise, notify in writing any employer to whom it has furnished reference on said employee, that it has been ordered by the Board to expunge from its records all reference to the fact that said employee was reprimanded or suspended by it, and that it has fully complied with such order, sending a copy of such notice to the employee involved, at his last known address. (e) Preserve and, upon request, make available to authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records and reports necessary or useful in determining compliance with this recommended Order, or in computing the amount of backpay due as herein provided. (f) Post at its establishment in Los Angeles, California, copies of the attached notice marked "Appendix." 51 Copies of said notice, on forms provided by the Regional Director for Region 21, shall, after being signed by an authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 51 In the event the Board's Order is enforced by a Judgment of the 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." 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken to insure that said notices (g) Notify the Regional Director, in writing, within 20 are not altered, defaced, or covered by any other material. days from the date of this Order, what steps it has taken to comply herewith.