Continental Chemical Co.

CONTINENTAL CHEMICAL CO. Continental Chemical Company and Warehouse Union Local 17, International Longshoremen's & Warehousemen's Union. Case 20-CA-11904 September 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 10, 1977, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The General Counsel alleged in the complaint that Respondent violated Section 8(a)(1) of the Act by the following conduct of its agents: instructing employee Robert Moore not to discuss wages, interrogating Moore about his and his fellow employees' union activities, creating in the minds of its employees the impression that their union activities were under surveillance, and placing Moore on probation be- cause of his concerted protected activities. The General Counsel also alleged that Respondent violated Section 8(a)(3) of the Act by discharging Moore because of his union activities. The Adminis- trative Law Judge concluded that the General Counsel did not prove any of these unfair labor practice allegations by a preponderance of the evidence, and therefore recommended that the complaint be dismissed in its entirety. The General Counsel excepted to those conclusions. We agree with the General Counsel with regard to each of the 8(a)(1) allegations. However, we adopt the Adminis- trative Law Judge's recommendation to dismiss the 8(a)(3) matter, although we rely on a rationale different from that set forth in his Decision. The pertinent facts are as follows. Respondent is engaged in the manufacture and distribution of chemical and chlorine products. Many of its custom- ers are swimming pool supply stores. Respondent provides some of its products to these stores by means of its own trucks and drivers. One such driver was Robert Moore. Moore was employed by Re- ' All dates herein are in 1976 unless otherwise stated. 2 The other active union adherent was Timothy Espley. Espley was the first employee who sought to interest his coworkers in joining a union and 232 NLRB No. 112 spondent from May 1974 until his discharge on September 8, 1976.' In April, Operations Manager Terry Lowe called Moore into his office to discuss customer complaints about Moore's conduct and attitude. According to credited testimony, Lowe also discussed the fact that Moore had been talking to other employees about the need for better wages. Lowe then told Moore to keep his own salary problems to himself and to "mind his own business" regarding other employees' salaries. Lowe placed Moore on 90-day probation. According to Lowe, the reasons which dictated probation were Moore's poor attitude with customers and his discussion of salary with the other employees. Moore became one of two active union advocates among Respondent's employees. 2 In August, he contacted Local Union 17 of the International Longshoremen's and Warehousemen's Union seek- ing its representation of Respondent's employees. Thereafter, he provided the use of his home in mid- August for an organizational meeting attended by 10 of Respondent's employees, and also obtained authorization cards from approximately 9 of his coworkers. On the day following the union meeting at Moore's home, Wayne Bradley, Moore's supervisor, made the following comments to Moore at Respondent's plant: "I know about the meeting at your house. You ought to be more secretive in what you do. If I can find out about it, other people can find out about it." Bradley and Moore discussed topics relating to the Union on approximately four other occasions as well. At one discussion, Bradley stated to Moore: i[T]he front office wouldn't like it if they found out about [your] Union activities." Bradley also ques- tioned Moore regarding the benefits sought by the employees and asked Moore which employees had attended certain union meetings. In addition, Brad- ley talked to some of Respondent's other employees about the Union. Bradley asserted at the hearing that his interest in the Union was purely for personal reasons-he stated that he thought he could become a union member and wanted to know what benefits union representation could provide for him. On either September 7 or 8, Respondent received a telegram from the Union seeking recognition for the purposes of collective bargaining. Thereafter, in the early evening of September 8, Lowe telephoned Moore informing him that he had been terminated. Lowe told Moore that he based his discharge on continued complaints received from Respondent's customers regarding Moore's attitude and perfor- mance relating to his deliveries of Respondent's solicited Moore's assistance toward that objective. Espley also obtained authorization cards from 20 of his fellow employees. However. he. unlike Moore. was not terminated from Respondent's employ. 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD goods. In particular, Lowe cited a complaint made earlier that same day by the owner of the Vacaville Pool Service and Supplies Company concerning Moore's poor attitude and uncooperative conduct on that day. As mentioned above, the Administrative Law Judge dismissed each 8(a)(1) allegation of the complaint, and the General Counsel excepted there- to. First, the General Counsel contended that Lowe's comments to Moore regarding Moore's discussion of salary with the employees violated the Act.3 We agree with the General Counsel and find that Lowe's statement to Moore ("mind your own business") regarding employee salaries constituted restraint and coercion of Moore's Section 7 rights, and, thus, violated Section 8(a)(1). Second, the General Coun- sel asserted that Respondent violated the Act when Lowe placed Moore on 90-day probation. Lowe admitted that one of the reasons he placed Moore on probation was his discussion of wages with the employees. We find that such discussions constitute concerted protected activity. We also find that Lowe's admission, by its very nature, demonstrates that he restrained and interfered with Moore's exercise of protected concerted activities and there- fore violated Section 8(a)(1). Third, the General Counsel maintained that Bradley violated the Act by interrogating employees about their own and their coworkers' union activities. 4 Credited testimony indicates that Bradley questioned Moore about the types of benefits the employees sought from union representation and which employees attended union meetings. Moreover, Bradley admitted discussing the Union with various other employees. We find merit in the General Counsel's contention that these interrogations reasonably tended to interfere with the employees' Section 7 rights and therefore violated Section 8(a)(1). Fourth, the General Counsel con- tended that Bradley violated the Act by creating in the minds of employees the impression that their 3 In support of his recommendation to dismiss that allegation, the Administrative Law Judge relied on the facts that the word "union" was never mentioned and that the remarks occurred at a time when L owe had reprimanded Moore because of customer complaints. The Administrative Law Judge inferred from those facts that "Lowe probably made a reference to Moore's excessive talking and suggested that he spend more time paying attention to his job duties." The facts cited by the Administrative Law Judge. however, are not dispositive of whether Lowe's comments to Mxore interfered with his exercise of the right to engage in protected concerted activities, nor do those facts support the inference reached by the Administrative Law Judge. 4 The Administrative Law Judge dismissed this allegation on the basis that Bradley was motivated to ask those questions solely by his own interest in possibly becoming a union member. However, it is well established that "interference. restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive. .... The test is whether the employer engaged in conduct which. it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." American Freightways Co., Inc., 124 NLRB 146. 147 (1959). See also Lition Dental Products Division of Litton Industrial Products, Inc., 221 NLRB 700, fn. 2 (1975). union activities were under surveillance. We find that Bradley's statement to Moore ("I know about the meeting at your house. .... If I can find out about it, other people can find out about it.") also reasonably tended to interfere with its employees' right to engage in union activities, and, accordingly, violated Section 8(a)(l). 5 Finally, as noted above, the Administrative Law Judge dismissed the 8(a)(3) discharge allegation. In support of that conclusion, he found that Lowe, Respondent's agent who discharged Moore, was without knowledge of Moore's union activities at the time the discharge occurred. The Administrative Law Judge based that finding on Lowe's denial of such knowledge and Bradley's testimony that he never told Lowe or any other management personnel of his knowledge of Moore's union activities. The General Counsel excepted to this finding, contending that Respondent, as a matter of law, possessed knowledge of Moore's union activities at the relevant time. We agree with the General Counsel on this matter. As previously mentioned, Bradley told Moore, immediately following the day on which Moore provided the use of his home for a union organiza- tional meeting, that "I know about the meeting at your house." Respondent also admitted in its answer to the complaint that Bradley was a supervisor. According to well-established Board precedent, knowledge of an employee's union activities by a supervisor is imputed to Respondent.6 This rule prevails despite denials by the supervisor that he mentioned the employee's conduct to other manage- ment personnel and denials by management person- nel that they otherwise knew of the employee's union activities.7 Consequently, we find that Respondent had knowledge of Moore's union activities. We also find that Respondent's statements and conduct provide sufficient evidence to infer a discriminatory intent to discourage union membership.8 According- ly, the General Counsel has established a primafacie 5 The Administrative Law Judge based his dismissal of this allegation on the inference that Bradley's remarks to Moore were "obviously intended as the warning of a friend and colleague to be more discreet in such matters." The Board has stated, however, that the test of interference, restraint, and coercion under Sec. 8(aX 1) does not depend on whether the supervisor and employee are on friendly or unfriendly terms. Florida Steel Corporation, 224 NLRB 45 (1976). Rather, the test is that stated in fn. 4. supra. Here, even if Bradley did warn Moore for personal reasons, it would be reasonable for Moore to have assumed that his "friend" was warning him about actual surveillance undertaken by the Company. 6 See. e.g., James T Hughes Sheer Metal, Inc., 224 NLRB 835. fn. 2 (1976); Rilei Stoker Corporation. 223 NLRB 1146, 1151 (1976); Warren Chateau Hall, Inc., 214 NLRB 351,352 (1974). 7 See, e.g., James T Hughes Sheet Metal, supra at 837. Moreover. the Board follows this rule despite the fact that the supervisor is "friendly" with the employee, as reflected by the testimony in this case. See, e.g., Asiro- Space Laboratories, Inc., 203 NLRB 700, 702 (1973). n As noted above, Bradley told Moore at one of their discussions that "the front office wouldn't like it if they found out about [your] Union activities." Moreover, Moore was discharged within a single day after 706 CONTINENTAL CHEMICAL CO. case for a violation of Section 8(a)(3). Thus, the burden of coming forward shifted to Respondent to demonstrate that Moore's discharge was motivated without regard to discriminatory considerations. Moore indeed was prone to arousing complaints from Respondent's customers regarding his conduct and attitude. In March, Lowe received a complaint about Moore from Capital Pools, a customer of Respondent. Lowe reprimanded Moore and the latter agreed to try to improve his attitude. In late May, Respondent received a complaint regarding Moore from Guyton's Pool Center, another custom- er. Walter Yell, its manager, testified that Moore was "pushy" and rude and delivered chemicals in a dangerous manner. Yell informed Respondent that he no longer wanted Moore to make deliveries if he engaged in such conduct. In late summer, Robert McLaren, owner of Capital Pools, also complained to Respondent about Moore. McLaren testified that Moore interrupted his wife while she was waiting on customers and initially refused to deliver the chemi- cal goods inside the store, as required. McLaren had encountered earlier problems with Moore and told Respondent that he did not want Moore back on his premises if he continued to exhibit such a poor attitude. McLaren further threatened that, if a similar incident occurred in the future, he would terminate his business relationship with Respondent. In addition, Orville Sprock, owner of Crystal City Pool Supply and a customer of Respondent, twice complained of Moore's conduct. On the first occa- sion, Sprock complained that Moore refused to count the cases of products being delivered and, in his rush to leave the premises, backed his truck into the cases and caused some of them to topple. On the second occasion, occurring within a week of Moore's discharge, Sprock complained that Moore again backed his truck into some cases and scattered them about. The final customer complaint occurred on Septem- ber 8, the day on which Moore was discharged. Francis Amerine, assistant at Vacaville Pool Service, testified that Moore refused to pick up five chlorine cylinders (with a credit value of $250) for return to Respondent. Additionally, Amerine stated that Moore left some cylinders in a position that blocked a doorway and delivered a broken bag of chemicals which could not be resold in that condition. Gordon McDonald, owner of the store, thereafter registered a heated complaint with Respondent. Respondent received a telegram from the Union requesting recognition. Additionally, Respondent committed several independent violations of Sec. 8(aX I). Moore received a letter from Respondent a few days after his termination setting forth the reasons for his discharge (continued unsatisfac- tory attitude toward customers despite agreeing to improve his conduct; latest complaint by Vacaville Pool). Moore testified that the reasons This evidence of customer complaints and threats to discontinue business with Respondent amply demonstrates that Respondent had legitimate busi- ness reasons for discharging Moore. Furthermore, the last two complaints occurred within a week of Moore's discharge, and Respondent discharged Moore immediately after the last complaint. The evidence also clearly establishes that, in discharging Moore, Respondent relied on these business consid- erations. 9 In response to this persuasive evidence justifying Moore's discharge, the General Counsel failed to provide any evidence to rebut Respondent's assertions. In these circumstances, we find, in accord with Respondent's contentions, that Moore was discharged not for his protected activities but rather for economic considerations.10 Thus, contrary to the conclusion of the Administrative Law Judge, we find that Respondent did not violate Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse Union Local 17, International Longshoremen's & Warehousemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By instructing employee Robert Moore not to discuss wages among its employees, placing Moore on 90-day probation because he discussed wages among the employees, creating in the minds of its employees the impression that their union activities were under surveillance, and interrogating its em- ployees about their and their coworkers' union activities, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. mentioned in the letter were identical to those presented to him by Respondent's president, which were the same as those testified to by Lowe. io See Independent Life & Accident Companv d hb a Herald Life Insurance Copoany, 227 NLRB 1546, 1553 (1977); Erie Strayer CompranI, 213 NLRB 344, 346, at fn. 9 (1974); P. G Berland Paint City, Inc., 199 NLRB 927. 928 (1972). See also Concrete Technology, Inc., 224 N LR B 961, 965 (1976). 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Continental Chemical Company, Sacramento, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Instructing its employees not to discuss wages among the employees. (b) Placing an employee on probation because he discussed wages among his fellow employees. (c) Creating in the minds of its employees the impression that their union activities are under surveillance. (d) Interrogating its employees about their and their coworkers' union activities. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Sacramento, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representa- tive, shall be posted by Respondent 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Respondent unlawfully discharged Robert Moore, be, and it hereby is, dismissed. I In the event that this 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 After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following. Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL NOT instruct our employees not to discuss wages among the employees, place our employees on probation because they discuss wages among the employees, create in the minds of our employees the impression that their union activities are under surveillance, and interrogate our employees about their or their coworkers' union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. CONTINENTAL CHEMICAL COMPANY DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard in Sacramento, California, on March 17, 1977, based on a complaint dated October 22, 1976, which was duly served on Respondent, and Respondent's answer to the complaint dated November 3, 1976.1 The complaint stemmed from a charge filed September 9 charging the Employer's refusal to recognize the Union and the Employer's termination of Robert Moore because of his union activities as being violative of the Act.2 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine I The significant and relevant events with which we are herein concerned occurred in the year 1976 and unless otherwise indicated all dates hereinafter will refer to the calendar year 1976. 2 Both at the hearing and in Respondent's brief there was substantial time devoted to the question as to whether or not the complaint was too broad to be supported by the charge inasmuch as the charge did not indicate anything regarding the unlawful interrogation or surveillance. Respondent's objections at the hearing to the receipt of evidence regarding what he considered to be the "too broad allegations" were rejected. The complaint is not restricted to the precise language of the charge. So long as there is a 708 CONTINENTAL CHEMICAL CO. witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record in this case and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the manufacture and distribution of chemical and chlorine products. During the past calendar year, in the course and conduct of its business operations, Respondent purchased materials in excess of $50,000 directly from outside the State of California. Respondent admits and I herewith find .that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOI VED The Warehouse Union Local 17, International Long- shoremen's & Warehousemen's Union, hereinafter the Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The only real problem involved herein is one of discerning and perceiving the true motivating factors which precipitated the discharge of Robert Moore. B. The Evidence Robert Moore was first employed by Respondent in May 1974 and worked until his discharge on September 8. Moore was first employed as a laborer in the liquid section at a rate of $2.50 an hour; after approximately 3 months he was promoted to a local truckdriver (bobtail truck) and received a 50-cent-an-hour increase; there were other small raises and at the time of his discharge he was a diesel truckdriver receiving $4.25 an hour. His immediate supervisor was Wayne Bradley whose title was traffic supervisor and Respondent stipulated that Bradley was a supervisor within the meaning of the Act.3 There is no question but what Moore was active in the employees' efforts to bring a union into Respondent's plant. According to Moore, he was the most active employee in seeking organization. However, Timothy Espley, whose testimony I credit over that of Moore, timely charge the complaint may allege any matter closely related to or growing out of the charged conduct. or related to the controversy which produced the charge, or which relates back to or defines the charge more precisely. N.L.R.B. s. 'ant Milling Co. 360 U.S. 301 (1959); National Licorice Co. v N.L. R. B 309 US. 350 (1940), Erher. Inc. d ' a El Corte. Hotel v. N L R. B. 390 F.2d 127 (C.A. 9, 1968). Thus, in N.L.R.B, v. Kohler Companv. 220 F2d 3, 7 (C.A. 7. 1955). the court said: "So long as the Board entered the controversy pursuant to a formal charge, it ma) allege whatever it finds to be a part of that controversy. But if It gets so completely outside of the situation which gave rise to the charge that it may be said to be initiating the proceeding on its own motion, then the complaint should fall as not testified that he was the employee who first sought to interest his fellow employees in joining the Union and Moore volunteered to help. Espley asked Moore to find a union that would be willing to accept them, because Espley was a maintenance employee and did not have the opportunity to get away from the plant as did Moore, who was involved in driving a truck. Espley testified that he obtained approximately 20 of the 29 union authorization cards that were obtained. According to Moore, his organizational efforts started sometime in July and it was in August that he contacted the Union. In the middle of August an organizational meeting attended by 10 employ- ees of Respondent was held at Moore's home. According to Moore, the morning after this meeting Bradley said to him, "I know about the meeting at your house. You ought to be more secretive in what you do. If I can find out about it, other people can find out about it." Moore testified that he spoke to Bradley on three or four occasions and on each occasion Bradley was interested in what kinds of things we were going to ask for, whether it was wages, benefits, and how many employees were interested in the Union. Moore related that on one occasion when he had been called into Terry Lowe's office for a reprimand that Lowe had said to him, "I have had complaints from the employees that you're discussing wages. You're getting them upset. You can't do this." On September 8 at approximately 5:30 in the evening, Moore received a telephone call from Terry Lowe at which time Lowe informed Moore that he was terminated as of that day. According to Moore, he (Moore) then asked Lowe, "If it's because of the Vacaville Pool incident, it wasn't my fault," and he (Lowe) said no, that wasn't it. "And I told him, 'Well, I'd like my check,' and he said, 'Well, come in in the morning and we'll give it to you.' " When Moore insisted that he was entitled to his money immediately, he was told by Lowe to come in and get it, but then Moore changed his mind and said he would come in the following morning and pick up his check. Wayne Bradley acknowledged that he had talked to a number of employees concerning the Union, including Moore who had asked him to sign a union authorization card. His testimony, which I herewith credit, unmistakably indicated that he was curious about the Union and talked to other employees about the Union because he was of the opinion that he could and would become a member and he wanted to know more about the Union for his own personal reasons. It is apparent that he cautioned employ- ees about talking "unionism" on the job and the necessity of a certain degree of discretion because he was personally concerned as to what Respondent's attitude would be and not because of any conduct which might be attributed to Respondent tending to coerce, interfere with, or restrain supported by the charge." For a specific case which permitted allegations of interrogation and surveillance in the complaint based on a charge which only alleged a discnminatory discharge see Hotel Conquistador, Inc, d b a Hotel Tropicana. 398 F.2d 430 (C.A. 9. 1968). 3 From my observation and so far as the record reveals. Bradley occupied a position more commonly known as a "dispatcher." The job of truck dispatching is a lower level borderline supervisory job and oftentimes is included within the bargaining unit. Since Respondent has acknowledged the supervisory status of Bradley it is not an issue. but the level and type of his responsibilities must be considered in evaluating his conduct vis-a-vis the Union in this dispute. 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of their Section 7 rights. His remarks to Moore about the union meeting was obviously intended as the warning of a friend and colleague to be more discreet in such matters and could not have interfered with, restrained, or coerced Moore in anyway. Bradley testified that prior to the discharge of Moore he had never spoken to Mr. Lowe or Mr. Lavelle, the company president, regarding the union activity among the employees at Respondent's plant. Bradley testified that to the best of his knowledge the union activities of the employees were kept secret until the telegram from the Union demanding recognition was received.4 Bradley further testified that he had received complaints from customers, as well as Ed Kochish, the sales representative, regarding Moore's inadequate performance on the job and that it had been necessary for him to report these incidents to his superior, Mr. Lowe. Bradley testified that he was not consulted, however, by Mr. Lowe at the time Moore was terminated. Bradley regarded Moore as a difficult employ- ee. Tim Espley, who initiated the union activities at Respondent's plant, described Moore as "hot-headed." Walter Yell testified that he is the manager of Guyton Pool and is a customer of Respondent. Yell testified regarding an incident with Moore in which Moore was insulting to the customers and to him (Yell) and that he had reported the circumstances to Ed Kochish with the comment, "that I didn't want him back on the premises if that's the way he was going to operate the rigs." Orville Sprock, owner of Crystal Pool Supply, testified that he had complained to Wayne Bradley because of Moore's refusal to work with him in counting the cases of products delivered and his generally impudent, uncoopera- tive manner concluding by telling Bradley, "I was really upset and I told him if he ever sent that driver back to deliver chemicals, I'd quit taking chemicals from him." Robert McLaren, owner of Capital Pools, testified that he had complained to Ed Kochish on more than one occasion. When Moore refused to deliver the chemicals into the store where they belonged, instead of outside the store area where they were accessible to young children or could be stolen, he (McLaren) told Kochish, "I did not want this man back on the premises with that attitude, that if he did continue, we'd have to go to another chemical company." Frances Amerine testified to the Vacaville Pool incident which led to the discharge of Moore. Amerine stated that she was a general assistant or "jack-of-all-trades," for Vacaville Pool Service and Supplies and that Moore had refused to pick up five chlorine cylinders as she requested on September 8 and that each of these cylinders had a credit value of $50 (a total of $250) with Respondent Company. A failure to return the cylinders resulted in an additional $250 billing for the customer. Amerine testified that when her boss, Gordon McDonald, returned from lunch and saw that the cylinders had not been picked up by Respondent's driver he was quite angry. Mr. McDonald had lunched that day with Ed Kochish and he so expressed himself to Kochish. Additionally, Amerine said the I There were indications in the record that the Union failed to identify itself in their telegram to Respondent. However, on September 7 the Union filed a petition for an election-this was docketed as Case 20-RC-13753. The record does not reveal the status of this petition. cylinders had been left in the doorway which prevented her from getting to the liquid acid and she had asked Moore to remove them so that she might have access to the liquid chlorine and acid, but he did not do so. Moreover, Amerine testified that Moore left "a broken bag of diatomaceous which wasn't any good because people will not take a broken bag." Ed Kochish, the company sales representative, con- firmed the testimony of the customers as heretofore related, indicating that in each instance he had relayed this information to Wayne Bradley and in most cases had advised Lowe of the type of work being performed by Moore and the customer complaints which he (Kochish) was receiving. Besides confirming the testimony of Ame- rine, Kochish added that Moore had also delivered some 35-pound pails of dry chlorine which were greasy and that the broken bag of soda ash had been partially spilled on the customer's driveway. Kochish testified that he immedi- ately called Wayne Bradley regarding the conduct of Moore at Vacaville Pool which occurred on September 8. Mr. Terry Lowe testified that on September 8 he was operations manager in charge of traffic maintenance and production for Continental Chemical and as such had responsibility for the performance of the truckdrivers. Lowe reported to the president, Dan Lavelle. He testified regarding the various customer complaints regarding the performance, or lack of performance, by Robert Moore as reported to him by Wayne Bradley and Ed Kochish. He further testified that he had talked to Moore on one or two occasions regarding his uncooperative, belligerent attitude and that shortly before his discharge he had been placed under a 90-day probation. Lowe denied that he ever told Moore to stop talking with other employees about wages but acknowledged that he had told him "in fact to keep his salary, his business and the employees-quit harassing the other employees about what he was making.... I said that I would appreciate it if he would mind his own business, but I did not direct him not to discuss-I couldn't, even if I wanted to." Lowe testified that he was directly responsible for the discharge of Moore and that he had not consulted with Bradley immediately prior to the discharge but that it was the Vacaville Pool incident which he felt was the last complaint regarding Moore that he was going to tolerate. Lowe testified he had absolutely no knowledge of Moore's interest or activity on behalf of the Union until he (Moore) raised the issue at the time Moore was being advised by Lowe of his discharge. There was also testimony in the record to the effect that Moore was the only driver that Bradley had found it necessary to report to Mr. Lowe-apparently in all other instances Bradley had been able to correct the drivers' poor performance or difficulties on his own. General Counsel's Exhibit 2, the termination letter from Respondent to Robert Moore from Terry Lowe, confirms the reason testified to by Lowe as the final straw which precipitated the discharge of Moore.s s The termination letter is dated September 9. General Counsel attempted to show that the letter was an afterthought because, although it is 710 CONTINENTAL CHEMICAL CO. C. Analysis and Conclusions Generally speaking, an employer is held responsible for statements or acts of his supervisors which constitute any sort of interference with self-organization of his employ- ees. 6 Normally an employer is held responsible, regardless of whether the statements or conduct occur within the scope of the supervisor's employment.s However, under the circumstances of this case I am convinced from the credited testimony of Bradley that his questions and actions were solely motivated by his own interest in possibly becoming a union member and did not in any manner interfere with, restrain, or coerce employees of Respondent in the exercise of their Section 7 rights.8 In Bonnie Bourne, d/b/a Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2, 1964). modifying 144 NLRB 805 (1963), the court set forth five factors to be considered in weighing the lawfulness of company interrogation of employees. These were: (I) The background, i.e., is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e., how high was he on the company hierarchy? (4) Place and method of interrogation; e.g., was employee called from work to the boss' office. Was there an atmosphere of "unnatural formality?" and (5) Truth- fulness of the reply. In applying these tests to the activities of Bradley it becomes readily apparent there were no violations of the employees' Section 7 rights. Nor am I convinced that Terry Lowe ever instructed Moore that he was not to discuss wages with other employees in a manner that interfered with Moore's dated September 9. it was not received by Moore until after his visit to the Regional Office on September 14 and the exhibit bears the Regional Office date stamp of September 23. Regardless of when the letter may have been received by Moore. I am not convinced that it was an afterthought or that the letter predated the time of its actual mailing. i La Salle Srteel ('o. 72 NLRB 411, enfd 178 F.2d 822 ((.A. 7, 1949): Jmo Silk Mills, Inc., 85 NLRB 1263 11949). modified and enfd. 185 F.2d 732 (C.A.D.C. 1950). J. S. Ahercrombie Conmpany. 83 NI RB 524 (1949). 8 See National Food Stores. Inc., T A Bit Bear Super Markets, 169 NL RB Section 7 rights. Moore acknowledged that the word "union" was never mentioned during this conversation and because the remarks occurred at a time when Moore was being given an oral reprimand because of customer complaints, Lowe probably made a reference to Moore's excessive talking and suggested that he spend more time paying attention to his job duties.9 I shall recommend dismissal of all allegations of 8(aX I ) violations. Knowledge of union activity is a necessary ingredient in order to be able to find a violation of Section 8(a)(3) of the Act. Terry Lowe was solely responsible for the discharge of Moore and I am convinced from all of the evidence that he was without knowledge of Moore's union activities. In addition, through the testimony of fellow employees, as well as customers with whom Moore had direct but unsatisfactory relationships, Respondent has unmistakably and credibly established good and sufficient reasons for the discharge of Robert Moore on September 8 wholly unrelated to protected concerted activity. I shall recom- mend the dismissal of the 8(a)(3) allegation. CONCI USIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 94 (1968), where an employer was not held responsible for a lower level supervisor's remarks Also W'estern Sample Book and Printing Co. Inc. 209 NILRB 384. 385 (1974). 9 If Moore's version of the conversation was accepted as the more accurate, under a recent Board decision. it would constitute a violation. Jeannette Corporation. 217 NLRB 653 1975). However, as indicated above. I have credited the testimony of Lowe over that of Moore and at best this would be an isolated incident of a very questionable violation unworthy ol a remedyv. 711