Silco Vending Co., Inc.

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silco Vending Co., Inc. and Teamsters Local Union No. 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 4-CA-7009 DECISION STATEMENT OF THE CASE July 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On March 20, 1975, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Silco Vending Co., Inc., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. ' The Respondent has requested oral argument . This request is hereby denied because the record , the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 ( 1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings In the first paragraph of the section of her Decision entitled "Moffitt's Union Activities," the Administrative Law Judge inadvertently found that Moffitt "arranged for a meeting which was held at a bar on the evening of August 27." From the record it is clear that the meeting was held on August 23. ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on September 13, 1974, by Teamsters Local Union No. 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, re- ferred to herein as the Charging Party or the Union, the General Counsel, by the Regional Director for Region 4 (Philadelphia, Pennsylvania), issued a complaint and no- tice of hearing on November 12, 1974. The complaint, as amended at the hearing, alleges in substance that Silco Vending Co., Inc.,' herein called the Respondent, terminat- ed employee Barry Moffitt, and has refused to reinstate him, because of his union activities, and thereby engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. The Respondent, in its answer duly filed, admits some of the factual allegations of the complaint, admits that it ter- minated Moffitt and refuses to reinstate him, denies that the discharge was because of union activities as to which it also denies knowledge, and avers that the discharge was for cause. Pursuant to notice, a hearing was held before me at Phil- adelphia, Pennsylvania, on December 9 and 10, 1974. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence. At the close of the hearing, the parties waived closing argument. Subse- quent to the hearing, briefs were filed by the General Counsel, the Respondent, and the Charging Party on or about January 6, 1975, which have been fully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the Commonwealth of Pennsylvania. The Respondent maintains its principal office and place of business, the only operation here involved, in Philadelphia, Pennsylvania, where it is, and at all times material herein has been, engaged in the servicing of vending machines. During the past year, the Respondent sold goods and per- formed services outside the Commonwealth of Pennsylva- nia valued at over $50,000, and, during the same period, the Respondent, in the course and conduct of its business operations, had gross sales valued at over $500,000. The complaint alleges, the Respondent at the hearing admitted, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 The name of the Respondent appears as amended at the hearing SILCO VENDING CO., INC. 473 II. THE LABOR ORGANIZATION INVOLVED February 1974, and that Siller told him he was the The complaint alleges, the Respondent at the hearing admitted, and I find that Teamsters Local Union No. 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Termination of Moffitt The only issue herein is whether Moffitt was discharged because of his union organizational activities , in violation of the Act, or for cause. The General Counsel called Mof- fitt as its only witness . The Respondent called as its wit- nesses Siller, president of the Respondent, Gordon, who worked as a checker for the Respondent over 5 years but testified that he left on July 17, 1974, because of ill health,2 and Purr, one of the Respondent's two mechanics. B. Moffitt's Employment History Siller is president of the Respondent , and he and his wife are the sole stockholders. Siller testified that he employed six drivers "When they would all show up-"who service vending machines on fixed routes, two mechanics who make repairs on vending machines at the site or in the plant, two women who make sandwiches , a warehouseman, and office employees. Abrams , Siller's brother-in-law, who was a supervisor, left in August 1974 and was replaced as supervisor by McKenna , who had been a driver . Siller, who described himself as "a jack of all trades," is the Respondent's only salesman , the personnel manager, on occasion drives a truck , performs a variety of other func- tions, and directly supervises drivers and other employees. Moffitt telephoned and applied for a job as a driver in response to an advertisement .. He had performed similar work for another employer for about 2 years but was laid off when the man he had replaced returned from Army service. Siller, in accord with his usual practice, interviewed Moffitt, called Moffitt's previous employer, gave Moffitt a polygraph test, and photographed Moffitt as he did all em- ployees periodically . Moffitt was hired as a driver in Feb- ruary 1972. Siller testified that starting salaries for drivers depended on experience , and Moffitt had some previous experience in this work ; that Moffitt, during the time he was accompanied by a supervisor who showed him the route and the work to be done, received about $100 a week ; that when Moffitt began to operate alone on his route he received about $160 ; and that, when Moffitt was discharged in August 1974, he was receiving $209.50 a week. Moffitt testified that he thought his last raise was in 2 Siller testified that he believed Gordon retired in the middle of January 1974, that his duties were performed for a time by "myself or Irv or John, my mechanic," and that the Respondent hired a replacement on "a part- time basis, until we broke him in, until we got him to do what we wanted him to do." Asked finally if he has a checker, Siller answered, "Yes A man comes in." Respondent's highest paid routeman. Moffitt was assigned to D route when he was hired, and remained on that route about 2 years. In the summer of 1974, the Respondent obtained from Cuisine Limited, which had a contract to furnish food to a project of Rohm and Haas Company, a subcontract to supply the vending machines at this project. This was an important acquisition because the project, which was in continuous operation 7 days a week, had about 1,000 employees working in about 10 buildings, in which the Respondent installed about 60 machines. Moffitt testified that he asked to have this pro- ject assigned to him, whereas Siller testified that he rear- ranged D route to include Rohm and Haas, that he asked Moffitt to handle this new assignment, and that "I think he consented to do this." Moffitt, as directed by Siller, stopped at this project every morning. Machines at this project were frequently out of order. Moffitt testified that it was because men at the project tampered with the ma- chines, that at one time he saw a man taking money out of a machine and reported it, that as a result the men at the project resented him, that he reported this to Siller, that he knew complaints were coming from this project about him, and that he requested reassignment a number of times be- cause he was afraid Siller might lose the account, but that Siller replied that Moffitt was the best man for this assign- ment. Gordon worked in the storeroom, checking what each driver took out of inventory as well as the money the men brought in when they returned from their routes. He did not work in the office and did not generally answer the telephone except on the infrequent occasions when no one else was there. Nevertheless, he testified, "whenever I would come in, all of a sudden the phone would ring and most of the time it was Barry [Moffitt]-he couldn't make it. . . . He had different excuses." Gordon later reduced the "whenever I would come in" to "quite a number of times," and then to "anywhere between once or twice a month." Gordon testified, as to these absences, that Mof- fitt "would claim sometimes his ear, -and sometimes his child and sometimes his wife." Gordon reported Moffitt's calls to Abrams, then the supervisor, who took Moffitt's route, and to Siller. Gordon also testified, with respect to the Rohm and Haas project, that he received a number of telephone calls about Moffitt, complaining that "he is not doing this, and he is not doing that," and that "he is very arrogant." Gor- don testified that he sometimes spoke of these matters to Moffitt, who gave him "an arrogant answer," that he wrote down each such message in a book and- showed it to Abrams, and that, where the messages in this book indi- cated trouble with certain vending machines, the mechan- ics were assigned to make repairs. Gordon also testified that, in walking through the office on occasion, he has overheard Siller telling Moffitt to do his job right or the account would be lost, that on some of these occasions he overheard Moffitt give a "flippy answer and Mr. Siller took it. I wouldn't. . . . There was plenty of times if he told him to do something-I mean, I have had him throw the keys right on the table and say-That is it, I am through, be- cause Mr. Siller told him-Why don't you do your job 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right. And go out and do it. I was there. He would walk out" Gordon testified that the incidents of Moffitt throw- ing down his keys occurred a number of times , that they occurred in the presence of Supervisor Abrams and him- self, and that Moffitt, after each such incident, came in, picked up his keys , and went to work . Moffitt denied that he ever threw his keys down and said he was through, and that he ever told Siller he was quitting. According to Gor- don, Moffitt refused during the entire period of his em- ployment to wear the uniforms which are furnished by the Respondent at no cost to the employees ; that he was al- ways sloppily dressed ; and that he wore his hair so long that Siller "asked him to please cut. It doesn't look nice. You are working for a concession where there is food. He said he liked it that way." Gordon admitted that not all the men wore uniforms, and that it took months to get the uniforms after they were ordered, but he stated that all the men except Moffitt maintained a neat appearance. He also admitted that other men called in sick, but said they did so less frequently than Moffitt. Further, he admitted that Moffitt when first em- ployed "was a willing worker," but he stated that Moffitt "got lax," that he could not place when but "would say six or seven months," that even during that period Moffitt was frequently absent because he or his wife was sick , and that all through this period "Mr. Siller was nice enough to bear with him." Gordon was an extremely loquacious and excitable wit- ness, who had to be reminded by counsel for the Respon- dent to answer only the questions asked, and who charac- terized questions asked by the General Counsel as "ridiculous," as "trying to make me here feel like I'm a fool over here," and as "trying to make me believe that I am the one that's on trial ." He was unable to pinpoint dates for any of the derelictions in Moffitt's work and conduct to which he testified . He did not know the names of any of the people who called to complain about Moffitt, or the names of any locations involved other than Rohm and Haas, or how many of the calls were about maintenance problems which required a mechanic . He testified that, in addition to the complaints he wrote in a book, the girls who customarily answered the telephone "got everything written down in a book." No such book was produced at the hearing. Purr, who has been employed by the Respondent as a mechanic for 9 years, testified that he works almost entire- ly outside the company premises, getting his assignments from Siller by telephone, and that his job covers "Everything : repair machines, fill machines when neces- sary, try to pacify the customers." His job included daily stops at Rohm and Haas where, he testified, he received many complaints that Moffitt "wasn't doing the job right, he wasn't cleaning the machines, he was speeding in the parking lot . . . was ignorant to the people," which he ex- plained meant that Moffitt "wouldn't talk to the people. He wouldn't give them change . He kept letting the chan- gers run empty in the machines . The people complained about this. He would just tell the people to get away from him, don't bother him." Purr also testified that the situa- tion grew so bad that the personnel manager at the project told him on two occasions the Respondent had to replace Moffitt or the relationship would be terminated, and that he reported this to Siller . Purr admitted, on cross-examina- tion by the General Counsel, that there were repairs to be made every day on the machines at Rohm and Haas, some of which were renovated machines , and that he observed many instances of machines which had been kicked or otherwise abused by the people using them. Purr testified that he received complaints at other Mof- fitt stops also, where he found empty changers and dirti- ness. He admitted that the stop at which he found the dirti- ness, King Fifth Wheel Company, was a very dirty iron wheel plant, and that "I reported it back to the office, and I was told to clean the machines." Purr also testified that both the Rohm and Haas and King Fifth Wheel stops were terminated because of Moffitt's conduct. Purr testified fur- ther that, when he saw Moffitt at a project occasionally, Moffitt was wearing part but not full uniform. He also testified that he did not know about Moffitt 's lateness as he did not come in in the morning , but that he did know of Moffitt's absences, which he estimated at one or two a month, because Siller told him, and because he sometimes covered some of Moffitt's stops when the supervisor was not available to do so. Purr admitted that he could not name the individuals who complained to him about Moffitt , could not specify the dates on which any of the Moffitt events to which he testified occurred, and could not even estimate the number of times Moffitt failed to perform certain functions that were part of the routeman's job as "I don't keep a diary. I can't keep track . . . I didn't take notes on this." He also testified that he reports to the office all instances of im- proper work but did not know if any record of them was made at the office. He admitted that other routemen at times neglected to perform some of their duties, but assert- ed that to name any of them was "an impossible question," and that he had "no idea" as to the number of times this occurred. Siller testified that Moffitt tried to do a good job for the first month, "but then he became very lax" and "We had to keep after him continually . There wasn't any one specific time. This was during the time of his employ-the entire time." He testified further that he brought these matters to Moffitt's attention "Many times," but that Moffitt merely gave him "some smart answer." When asked, however, if he spoke to Moffitt about complaints regarding failure to stock machines properly, Siller replied that "we are a small organization , and if I had to keep hitting him over the head with these-." At this point he was interrupted by his coun- sel requesting him to answer the question that was asked, but the question was not answered.' 3 Counsel for the Respondent frequently exhorted Siller to limit his an- swer to the question that was asked . Siller argued at one point that the questions were "silly then if I can't explain my situation " At another point the following colloquy occurred Q Mr Siller, I asked you a very simple question I don't want speeches . All I want to know is an answer to my question, What is the first date? A Why can't I say something? Q Because I don't want you to say it. A You people might think he started working in March He started in the last day of February, and prior to that- SILCO VENDING CO., INC. 475 Siller testified that Moffitt was absent a total of about 34 days and was late two or three times a month, and that he believed this "started pretty much at the beginning. I am not sure of that. He worked hard at the beginning. He was a hard working boy, but he took off whenever he pleased." Siller recalled that Moffitt had complained of ear trouble, but believed it was only one time, and that Moffitt admit- ted on a few occasions he had had "a big night last night." Siller testified at one point that Moffitt failed to call in about half the times he was absent, but at another point that Moffitt failed to do so only "maybe a half a dozen" times, and that the reasons Moffitt gave for his absences were illness of himself, of his wife, or of his daughter. Siller testified that he did not require medical excuses for occa- sional absences but only if they were habitual; that he knew Moffitt was treated by a doctor at one time for ear trouble, and accepted his excuse that time; and that he did not ask Moffitt for medical excuses when Moffitt com- mented that he just felt like taking off. Siller stated that he asked his bookkeeper on the telephone to prepare from the payroll books a record of Moffitt's attendance, and counsel for the Respondent requested that Siller be permitted to read into the record the slips of paper that had been pre- pared by the bookkeeper. The General Counsel and the Charging Party objected. When permission to read the slips was denied by the Administrative Law Judge, Respondent's counsel stated that he would call the book- keeper as a witness, but did not do so nor refer thereafter to these records. With regard to the Rohm and Haas project, Siller testi- fied that he asked Moffitt to handle it and rearranged the D route so Moffitt could do so. Siller also testified that, about a week after this began, the personnel manager at the project called to complain that Moffitt was failing to observe the safety rules as he did not wear the hard hat he had been given, and was exceeding the 5-mile speed limit, and, about 2 or 3 weeks later, complained of the service on the machines. Siller testified further that he brought some of these complaints to the attention of Moffitt, who denied the conduct in question or said he would take care of the matter, and that "this is the extent of some of the discus- sions I had with him." Siller testified that he attended a meeting with represen- tatives of Cuisine Limited and of Rohm and Haas on July 10, 1974,4 that there was a discussion of many factors of the Rohm and Haas service, and that the Rohm and Haas representatives insisted the Respondent had to get rid of Moffitt or lose the account. The Rohm and Haas written summary of this meeting, placed in evidence by the Re- spondent, states in part that this was a 60-day notice to the Respondent that the vending service would be terminated unless there was improved maintenance during the daytime JUDGE SCHLEZINOER : The witness is now directed once more to answer counsel's questions, as counsel has requested. THE WITNESS: I am sorry, Your Honor. (By Mr. Wallner) The first loan made to Mr. Moffitt and the amount- A I don't know how to answer this question. 4 A Rohm and Haas letter, however, confirming what took place at the meeting "yesterday," is dated July 10 shift required due to excessive downtime and since, con- trary to the bid proposal, no 24-hour service was available. It set forth a number of matters to be remedied, including lack of new equipment" and "Replacement of serviceman or change in attitude by your serviceman when dealing with any Rohm and Haas employee. Numerous complaints have been reported on the attitude of your man, Barry." There were references also to certain machines Siller was unable to furnish, and to a hot food machine Siller had indicated he would not install until the fall. Siller testified that he did not see Moffitt directly after the Rohm and Haas meeting as it finished too late, but that, "Providing he wasn't absent, I saw him the next morning"; that he told Moffitt what had occurred, and that, as to Moffitt's response, "I don't recall his exact ter- minology," but Moffitt asked to have that account given to another driver; and that Siller proceeded to spend the money to try to meet the demands set forth in the letter. Reminded by his counsel that the question before him per- tained to what he did regarding Moffitt, Siller stated that, as this was the vacation period, he could not discharge anyone immediately and have the routes covered. Siller pointed out frequently in his testimony that he could not recall the dates of events, that "I've got too many other things to think about than pinpoint a date. I don't mark it down in my log." He made no reference to a book in which such things were recorded, as did Gordon and Purr. Siller's inability to pinpoint dates extended to when he took Moffitt off the Rohm and Haas account, as to which, when asked about it, he said he would have to look up the records. He testified that the Respondent's service at Rohm and Haas ended on September 29 or 30, 1974, following a 30-day notice. He also testified that he decided on August 26 to discharge Moffitt and discharged him on August 27, 1974. C. Moffitt's Union Activities Moffitt got in touch with a union organizer on August 19, 1974, arranged to meet him at a bar later that day, signed a card at this meeting, and agreed to arrange an organizing meeting. Moffitt talked about the Union to his fellow drivers at the company premises one morning, and arranged for a meeting which was held at a bar on the evening of August 27. The meeting was attended by the union representative, Moffitt, Moffitt's brother, who had been hired as a driver for the Respondent at Moffitt's rec- ommendation, and drivers Reynolds and Schwartz. The union representative spoke about the union benefits, and the three other drivers present signed cards, Moffitt having signed one previously. Moffitt obtained two additional cards for. the two drivers, Tarkenton and Bradley, who were not at the meeting. The drivers do not go out on their routes on Saturdays, but are required to come in on Saturday morning to take inventory and to load some of the items they need for the following week on their trucks, which remain on company premises. On the Saturday morning following the organiz- ing meeting, Moffitt, after he finished his loading, spoke to Tarkenton across the street from the company premises, and obtained Tarkenton's signature to a card. Moffitt then 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to Bradley's home and obtained a signed card from Bradley. He telephoned the union representative and ar- ranged to deliver these two signed cards to the representative's home that afternoon. At that time all six of the Respondent's drivers had signed cards. The representa- tive told Moffitt that an election petition would be filed. D. Moffitt's Discharge 1. Events during Moffitt's August 6-12 vacation Siller, who testified that he tried to permit employees to take vacations at the times they requested , had granted Moffitt's request for the period August 6-12, 1974. During the preceding week Moffitt trained another driver to cover his route while he was on vacation. Moffitt spent the first part of his vacation at home. He testified that during this period, his wife informed him that, while he was out, Siller telephoned and said Moffitt was discharged, and that Moffitt's father, who worked at an- other food establishment and knew Siller , also told him he had been discharged . Moffitt telephoned Siller and ar- ranged for a meeting at the office at 5 p.m. When he ar- rived, his father was at the office also. Moffitt testified that Siller complimented him and his family, but said Rohm and Haas wanted to get rid of Moffitt so Siller had to let him go; that he replied he could not take any more of Rohm and Haas ; that he asked if Siller could lay him off rather than discharge him so he could feed his family; and that Siller agreed to do so , and told him to hold on to his keys. Moffitt testified further that he went to the seashore for a few days; that while he was there his father told him on the telephone he was to report to work on Monday , August 12; and that, when he did so, Siller "said that he was going to take me back and assign me to a new route and he is going to forget about everything and start new." Moffitt was assigned on August 12 to E route , which he described as "a very small route," at the same rate of pay. Siller testified that , during Moffitt's vacation, he tele- phoned Moffitt at home "to tell him not to come back." He testified further that his reasons were that to put up any longer with Moffitt's "shenanigans or nonsense" would cause him to have a heart attack or to drop dead . Asked by his counsel if it had anything to do with the Rohm and Haas letter, Siller answered that "It might have played an important part, yes. Everything was coming to a point where I was choked up; I couldn't talk." He testified fur- ther that Moffitt suggested Siller might change his mind as he had done previously, because Siller "wanted to let him go numerous times." Siller also testified that he was ac- quainted with Moffitt's father and had talked on the tele- phone with Moffitt's wife, and he had a favorable opinion of both. Moffitt's brother had been hired as a driver on Moffitt's recommendation , and was still employed by the Respondent . Siller testified that Moffitt's father pleaded with him to retain Moffitt, and that Moffitt's wife might have done so also on the telephone , but Siller was not sure, and did not recall the dates nor the sequence of these pleas. Siller's testimony about this entire incident was vague and self-contradictory. He did recall that, in one of the conver- sations during this period, Moffitt's father commented that Moffitt was "a hard worker. I conceded the fact that he was a hard worker, but he was negligent." Siller also testi- fied that he was "bothered" by the family's pleas, plus the fact that Moffitt had, "if I recall correctly, purchased a new duplex home or something. I don't know if that was in that period. I assume it was. Barry went off the deep end and bought a new automobile." He testified further that he decided to retain Moffitt, that he "notified his father that it would be permissible for him to come to work," and that Moffitt returned to work on Monday, August 12. Siller also testified that he assigned Moffitt on August 12 to E route, which had been McKenna's route; that he worked out the stops on this route with McKenna and Moffitt; that he sent McKenna, who was the supervisor at that time, out with Moffitt to show him the route; and that "I told him that I will try to change his route, which he had requested of me, but I wanted him, if I recall correctly, to change his mannerisms . . . I don't want to get any com- plaints as to his arrogancy or unfriendliness...." Siller did not recall how many days McKenna went out with Moffitt, but testified that he thought it was about a week, and that Moffitt went out on E route alone beginning on Monday, August 19. Moffitt testified that, after he was assigned to E route, Siller asked him how he liked it, and that, when he replied that it was really easy and a relief to be away from Rohm and Haas, Siller said that was fine and he hoped it would be better for Moffitt. Moffitt also testified that McKenna was slow so that, while McKenna was training him, it took until 4 p.m. or later to complete E route, whereas Moffitt, when he covered it alone, usually finished about 2 or 2:30; that he could finish earlier than some of the other men because of his experience in this work and the smaller number of stops on E route; and that his brother, who had a small route also, got back even earlier than he did. He also testified that he and other drivers took inventory on Friday evening, which took about half an hour, and loaded the trucks on Saturday, which took about 3 hours, for which the men were not paid; that the men could choose their own hours of work on Saturdays; and that, during the week, he was expected to start work at 7 a.m., but was through whenever he finished his route. Siller confirmed that the drivers had to come in on Saturdays but could choose their hours, that he did not have strict hours of work on weekdays, that the routes varied in distance and number of stops and the men varied in the speed with which they worked, and that they had to begin work at 7 but were finished "when a route was finished." 2. Events of August 26 Moffitt testified that he overslept on Monday, August 26; that Siller telephoned him at home that morning about 8:30; that he told Siller he had been celebrating his brother's birthday the night before and had overslept, but would be right in; that Siller agreed; and that he got in shortly after 9. He also testified that his truck had been loaded on Saturday; that he got his cigarettes and route slips from the office; that, although he generally returned from this route at 2 or 2:30, he finished his work and got in SILCO VENDING CO., INC. that day at about 1 o'clock ; that McKenna saw him getting gas for this truck for the next day , asked him if he had finished his route, and, when he said he had, remarked on how fast he did so ; and that he told McKenna he was feeling ill so hurried in order to get home early . He main- tained that, while this was the earliest he ever finished his route, he had completed his work that day. Moffitt testified that Monday was not his busiest day, that his busiest days were in the latter part of the week, whereas Siller testified that Monday was "a pretty heavy day," that "If I am correct, Monday, Wednesday and Fri- day would be the heaviest days," that "Moffitt would come in numerous Mondays early so he could get done early," and that when Moffitt had not shown up on Monday, Au- gust 26, at "about twenty minutes to eight , to be exact. I decided to call his home." He testified further that Moffitt answered the telephone, asked "alarmedly" what time it was, said he was sorry but he had been at a party the night before, and assured Siller he would be in by 8:30. Siller testified that he waited for a time and finally decided Mof- fitt was not coming. He did not, however, send someone else on Moffitt's route. He also testified that at or about 9:15 he asked the girls if they had seen Moffitt, and was told Moffitt had been in and had left on his route. Siller testified that he felt that if Moffitt on that Monday "worked a little later , he could finish the entire route"; that Siller was out of the office most of the day and assumed, when he returned at about 3:30 or 4:00, that Moffitt was still on his route; that "I inquired-No, I didn't. I saw the cigarettes . . . in E pile" ; that when he asked whether Mof- fitt called or came in, he was told Moffitt came in at 1:30; that "This bugged me because how could he take care of the stops in that period. . . . I said to myself, Barry's out on his own again, and he's up to his old habits again. I had made up my mind, I couldn't-I was choked. I walked around with a choked throat. That's when I made up my mind : That was it." There is no evidence that Siller tried to get in touch with Moffitt that afternoon , or made any in- quiry as to whether Moffitt had covered his stops. He dis- charged Moffitt the following morning. 3. Discharge of Moffitt on August 27 Moffitt testified that he reported to work on Tuesday, August 27, at 7 a.m.; that he went over to routeman Schwartz' truck to tell him the election petition was going to be filed with the Board; that Schwartz said he wanted to be counted out; and that, when asked why, Schwartz said it was because "he had it too good there." Moffitt testified that he then went into the office to get his keys and cigarettes; that Siller was there as usual but they had no conversation that he recalled ; that he later saw Siller talking to one of the drivers ; that when he went in to get the other items for his route, Siller followed him in and said he wanted to see Moffitt before he left; and that he finished loading his truck and went to the office to see Siller. Moffitt testified further that Siller said Moffitt was the highest paid man there but had stabbed Siller in the back; that when he said he did not know what Siller was talking about, Siller said Moffitt was trying to bring in a union ; that when he denied it, Siller said he had heard it 477 from five other men, and asked if Moffitt wanted him to bring one of them in there ; that when he said he did, Siller went out and came back with Tarkenton, asked Tarkenton if Moffitt spoke to him about a union, and Tarkenton nod- ded affirmatively; that Siller and Tarkenton went out of the office and Siller returned with McKenna, the supervi- sor; that Siller then asked for Moffitt's route keys and slips, shook Moffitt's hand and said, "Nice knowing you. You can leave"; and that he left. Siller testified that when he came in at 7 o'clock on Au- gust 27, Moffitt was, if he recalled correctly, sitting in the lower office. There is no indication in Siller's testimony as to why Moffitt was sitting there. Siller also testfied that he locked the fire door, which he explained was the only way he could achieve privacy in the office. He testified further: "I said to him, `Good morning.' I said, `Barry, I have been thinking it over, and I know I've had it with you.' I said, `May I have your keys,' if I can recall. . . . I said, `It's been nice knowing you,' and that was it. His comment is, not word for word, `This is not the last that you have seen of me' or something to that effect. He made some mention of a union to me. . . . That there's going to be a union or something, and there would- . . . I think I asked him a question: Is this your thought on people or what have you. I don't know what I said, because I became flabbergasted frankly." Siller testified further that he may have said something to Moffitt, as Moffitt testified, about "getting off my back," that he asked Tarkenton, after Moffitt had been discharged but was still in the office, if Tarkenton had been approached by a union, and that Tarkenton 's answer was that he had been. Siller testified further as follows: Q. Mr. Siller, were you aware at the time you told Mr. Moffitt that he was through that there had been any attempt to organize the Union in your plant? A. Not at that particular time, no. Q. When did you first become aware of it? A. When he mentioned the fact also. The following day I recieved a letter. I think it was on a Wednesday or a Thursday. This was a letter from the Board, dated August 28, 1974, notifying the Respondent of the petition for an election filed on August 27. Siller further testfied that, prior to re- ceipt of this letter, he was not aware of union activities "until Barry mentioned some segment of it." Asked by his counsel if he had known about the election petition, he answered, "No. He made a statement some time ago." He did not explain what this statement was. Asked about the allegation in the charge that he discharge Moffitt because of his union activities at 9 a.m. on Tuesday, August 27, Siller stated: "That's a lie. . . . Because Barry was not in my office at 9 o'clock in the morning. He left immediately after 7 a.m. or 7:15 a.m. He left the premises, and there was one other thing. I approached one of my men and asked them if the union, if any semblance of a union had ap- proached him. . . . This was during the time that Barry was still in my office, during that 15 minutes period. The answer was, he had been approached by a union. . . . Af- ter I discharged Mr. Moffitt. He and I were alone in that room with the door locked. . . . When I had something important to tell someone, I locked the door and kept it 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD private . . . " Siller's testimony does not indicate that he gave Moffitt any reason for the discharge, and does not explain why he interrupted the discharge interview to ques- tion another driver about being approached by a union.5 Siller, when called by the General Cousel as a 43(b) wit- ness, testified that Moffitt was discharged for "Many rea- sons. Insubordination, lateness, absenteeism, arrogancy, loss of two of our stops. . . . Rohm & Haas which was the latest one and sometime back, Jo-Mac Corporation... . Complaints from clients that we served that if we did not take him off the route, we should also lose those." He testi- fied that he was also required to replace Moffitt 8 or 9 months ago at King Fifth Wheel Company. Siller testified further that these were the basic reasons for the discharge, and that he had many others written down that he could read. Siller then recalled some of these other reasons, which included, he testified, Moffitt's negligence in taking care of his route; lack of cleanliness as to his person 6 and the machines he serviced which began maybe 2 or 3 months after Moffitt was hired; lack of promptness which required Siller to call him at least once a week for at least a year; arrogance to other employees and "very arrogant with customers," as to which there were complaints begin- ning about 18 months or more before Moffitt's discharge; and "Numerous times he offered customers on his route outside for fisticuffs." Siller, called as a witness by the Respondent also, testi- fied that he lost the Jo-Mac account as a result of Moffitt's neglect, "I assume it was either '72 or '73 that we lost the stop. It's a period of three or four years, and I can't remem- ber precisely." On cross-examination by the General Coun- sel, Siller testified that he did not recall whether robberies had anything to do with removal of the machines at Jo- Mac. Moffitt testfied in this regard that he went to Jo-Mac only two or three times when he was first employed, and that Siller then told him this stop was discontinued and the machines were being removed. Siller's direct examination was concluded as follows: Q. Just one last question, Mr. Siller. For the record, why did you discharge Mr. Moffitt? A. Because I thought I had given him numerous chances. I'm afraid he'll never change. He'll be this way all his life. Q. This was your impression, but why did you dis- charge him? A. I couldn't take it any more. He didn't do justice that particular Monday. The top of my head came off. Why he went out after 9 o'clock in the morning and arrived back at 1:30 in the afternoon, this to me is not 5 There is no allegation in the complaint with regard to Seller 's interroga- tion of Tarkenton about union activities. 6 Siller testified that he used the photographs he took , and which are in evidence, to identify drivers to customers, but added that "l believe I would be very reluctant to show them" Moffitt's picture, and that "There's always one sour apple or one with a worm." Moffitt is not smiling in the picture, but neither are some of the others . Siller admitted he did not ask Moffitt to be rephotographed since he took the picture in question , which he thought was in or about September 1973, and that he did not ask those being pho- tographed to smile or to wear particular clothes. Moffitt is one of the few in the pictures wearing a uniform jacket. giving the company a fair shake. He did get paid for a full day's work. Moffitt denied that he was constantly late as Siller claimed. He admitted he was absent quite a few times be- cause of ear trouble and because of illness of his wife. He testfied that, when he was absent because of illness, he called about 6:45 a.m. when the office opened . While he admitted that Siller has on occasion called his home when he was late or absent , he denied that this occurred with the frequency Siller claimed. There is no company record to show how his attendance compared to that of other em- ployees. Moffitt maintained that he was never warned about insubordination, lateness, absenteeism, cleanliness, arrogance, or other conduct asserted by the Respondent as causes of his termination. 4. Concluding findings The record shows that Moffitt was discharged, without notice, on Tuesday morning, August 27, shortly after he initiated, and played a leading role in, the union organiza- tion of the Respondent's routemen. The Respondent main- tains that it had no knowledge of Moffitt's union activities until he mentioned the subject after he was told by Siller that he was discharged. The Respondent also advanced many diverse reasons for Moffitt's discharge, including poor work performance, frequent tardiness and absence, and intolerable personal habits. The testimony presented by Siller, Rosen, and Purr, however, with regard to Moffitt's shortcomings, appeared exaggerated, contradic- tory, and unconvincing. Furthermore, while the Respon- dent also claims that Moffitt displayed these faults during virtually the entire period of his employment, he was re- tained by the Respondent as a routeman for over 2 years, he was given wage increases during this period bringing his rate from $100 a week to $209.50, at which point he was the highest paid employee in his category, and he was as- signed to the very important Rohm and Haas project when the Respondent acquired it. Moreover, the Respondent in- troduced no company records establishing that Moffitt's work, attendance, or personal habits were any worse than those of other routemen. Siller did take disciplinary action against Moffitt on or about August 6, 1974, when, during Moffitt's vacation, Sil- ler notified a member of Moffitt's family that Moffitt was discharged. Siller admitted to Moffitt's father, however, at the time of this incident, that Moffitt was a hard worker; he did not require Moffitt to surrender his keys; and he permitted Moffitt to return to work on the day he had been scheduled to return from his vacation. Furthermore, when Moffitt returned on August 12, Siller rearranged routes in order to give Moffitt an easier one, said he hoped it would be better for Moffitt, and told Moffitt-if Siller, as he testi- fied, recalled correctly-only to avoid complaints of "arro- gancy or unfriendliness." There was, therefore, as of Au- gust 12, apparent forgiveness by the Respondent of Moffitt's shortcomings as an employee. I find, on the basis of the foregoing and the record as a whole, that the Respondent's assertions that Moffitt, while retained for over 2 years, was an incompetent, unreliable, and personally obnoxious employee, are not supported by SILCO VENDING CO., INC. 479 credible or probative evidence; that the Rohm and Haas and other matters, set forth by the Respondent as reasons for the discharge, existed or occurred prior to Moffitt's ter- mination, as well as prior to Moffitt's reinstatement on Au- gust 12;7 and that these asserted reasons did not in fact form any basis for Moffitt's termination.' It is apparent, therefore, and I find, that the many and varied derelictions that the Respondent advanced as reasons for Moffitt's ter- mination were pretexts contrived in an effort to mask the real reason for the discharge. Siller also contends that, about 2 weeks after he gave Moffitt his new opportunity on August 12, he found it nec- essary to terminate Moffitt on August 27, and this time to refuse to reinstate him, because Moffitt returned from his route on August 26 earlier than Siller thought possible if Moffitt had done his work properly. Siller, however, admit- ted that he did not impose strict hours of work on his routemen, who were finished at whatever times they com- pleted their routes. He had on August 12 given Moffitt a shorter and easier route. Moreover, although Siller had on occasion communicated by telephone not only with Mof- fitt but also with Moffitt's wife and with Moffitt's father, and Moffitt's brother was employed by the Respondent, Siller made no attempt on the afternoon of August 26 to get in touch with Moffitt, with any member of the Moffitt family, or with any customer on Moffitt's route, to ascer- tain whether Moffitt had completed his work that day.10 On the other hand, the record shows that Moffitt had, during the week preceding the discharge, initiated a union organizing campaign, and obtained the signatures of all the routemen to union cards. Moffitt carried on much of his organizing activity on or near the Respondent's premises. The Respondent has a small operation, and a small em- ployee complement, with Siller, who directly supervises much of the work, frequently mingling with the employees. Siller admitted that there was, during the termination inter- view, reference to the Union, but claimed the subject was raised by Moffitt. He also testified that he "became flab- bergasted" by this, and he confirmed Moffitt's testimony that he questioned another routeman in Moffitt's presence about being approached by the Union. I find Moffitt's tes- timony as to what occurred in this termination interview more inherently consistent and believable than that of Sil- ler. I find further, on the basis of the timing and all the surrounding circumstances, that Siller learned of Moffitt's union activities I I and discharged Moffitt precipitately on a Tuesday morning 12 because of these activities, and that the assertion that Moffitt was discharged because he returned early from his route on the preceding day is, like the num- erous other reasons for the discharge advanced by the Re- spondent, pretextual.13 7 See Nachman Corp. v. N.L.R.B., 337 F 2d 421 (C.A. 7, 1964). 8 Vincent's Steak House, Inc., 216 NLRB No. 100 (1975). 9Alberts, Inc., 213 NLRB 606 (1974); Scott Gross Co., Inc, 197 NLRB 420 422 (1972). l5 See Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (CA. 9, 1966); Ascot Nursing Centre, 216 NLRB No. 123 (1975) i 1 Dobbs Houses, 182 NLRB 675, 679 (1970); Carbide Tools, Incorporated, 205 NLRB 318 (1973). 12 N.L R B. v. Sutherland Lumber Company, Inc., 452 F.2d 67, 69 (C.A. 7, 1971). In conclusion, therefore, I find, on the record as a whole, that the Respondent discharged Moffitt on August 27, 1974, because of his union organizing activities, that the Respondent by such conduct discriminated against its em- ployees in regard to their hire or tenure of employment in order to discourage membership in or activities on behalf of the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and that the Respondent thereby en- gaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act.14 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,15 and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent discharged Barry Moffitt on August 27, 1974, in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I shall recommend that the Respondent be ordered to offer Moffitt reinstatement to his formerjob or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: 13 See N L R.B v Melrose Processing Co, 351 F.2d 693, 698 (C A. 8, 1965): Great Atlantic & Pacific Tea Company, Inc, v N.L R.B, 354 F.2d 707 (C.A 5, 1966), holding that "The Board is not compelled to accept the employer's statement [of the grounds for discharge ] when there is reason- able cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity " 14 Scott Gross Co, Inc, supra: Fraley & Schilling, Inc, 211 NLRB 422 (1974), Florida Steel Corporation, 214 NLRB No. 59 (1974) 15 N.L.R B. v. Express Publishing Company, 312 U.S 416, 437 (1941): N L R B v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941): Bob Henry Dodge, Inc, 203 NLRB 78 (1973) 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, Silco Vending Co., Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 830, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Barry Moffitt on August 27, 1974, be- cause of his union organizing activities, the Respondent discriminated against its employees in regard to their hire or tenure of employment in order to discourage member- ship in or activities on behalf of the above -named union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Silco Vending Co., Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employees in regard to their hire or tenure of employment in order to discourage membership in or activities on be- half of Teamsters Local Union No. 830 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) In any other manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Barry Moffitt immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges. (b) Make Barry Moffitt whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports , and all other records neces- sary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix A." 17 Copies of the notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's respresentative, shall be posted by the Re- spondent immediately upon receipt thereof , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 16 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. 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any employees with regard to their hire or ten- ure of employment in order to discourage membership in or activities on behalf of Teamsters Local Union No. 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Barry Moffitt immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Barry Moffitt whole for any loss of pay he may have suffered as a result of the discrimina- tion against him. SILCO VENDING CO., INC.