Ontario Gasoline & Car Wash

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C.S.C. Oil Company, a Division of Cook United, Inc., d/b/a Ontario Gasoline & Car Wash and Retail Store Employees Union, Local 954, AFL- CIO, Retail Clerks International Association. Case 8-CA-9745 March 21, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On July 20, 1976, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this pro- ceeding. Thereafter, counsel for the General Counsel and the Charging Party filed exceptions and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i Counsel for the General Counsel and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 The Adnumstrative Law Judge declined to draw an inference of company knowledge of employee Teetnck 's union activity based on the small employee complement. In so doing, the Administrative Law Judge suggested that the absence of evidence that employees informed manage- ment of Teetrick's action, coupled with the fact that Teetrick's union activity took place under "covert circumstances" required the conclusion that the Board's so-called small plant doctrine was inapplicable. We disagree with the Administrative Law Judge insofar as he suggests that these factors necessari- ly prohibit drawing the inference of knowledge. Clearly, if there is evidence that management has actually been informed of the union drive and of the identity of the union activists, no inference of knowledge need be drawn. Just as clearly an inference of company knowledge may be drawn in the absence of such evidence based on the size of the employee work force among other factors. And, in such instances, the fact that the employee union activists took some pains to conceal their activities would not necessarily prohibit the drawing of such an inference . See Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). Chairman Murphy finds that the General Counsel has failed to establish that the discharge was unlawfully motivated even if Respondent were aware of the employee's union activities . Therefore, she finds it unnecessary to pass 228 NLRB No. 119 on the Administrative Law Judge's Decision insofar as it discusses the small plant theory. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was heard in Toledo, Ohio, on May 10, 1976, upon a charge filed on January 14, 1976, and a complaint issued on February 25, 1976, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Timothy Teetrick and John Gascon because of their union activity, and violated Section 8(aX5) of the Act, under authority of Trading Port, Inc., 219 NLRB 298 (1975), by refusing to recognize and bargain with the Union as the majority representative of employees in the appropriate unit. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were filed by the General Counsel and Respondent. Upon the entire record in this proceeding,) including my observation of the witnesses while testifying, and consider- ation of the posthearing briefs, I hereby make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT CSC Oil Company is a division of Cook United, Inc, an Ohio corporation, with its principal office and place of business in Louisville, Kentucky. CSC Oil Company is engaged in the retail operation of carwash and gasoline stations at numerous sites, including a location in Toledo, Ohio, the sole facility involved herein. Annually, in the course and conduct of its business, Respondent realizes gross revenues exceeding $500,000 and receives at its various carwash facilities and gas stations in Ohio, goods valued in excess of $50,000, shipped directly from points located outside the State of Ohio. Respondent admits, and I find, at all times material, that Respondent is, and has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Retail Store Employees Union, Local 954, AFL-CIO, Retail Clerks International Association , is, and has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Whether Respondent violated Section 8(aX3) and (1) of the Act by discharging employee Timothy Teetrick on November 24, 1975, and employee John Gascon on November 29, 1975, because of their union activity. i Certain errors in the transcript have been noted and are hereby corrected. ONTARIO GASOLINE & CAR WASH 951 Whether in accordance with N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), and Trading Port, Inc., supra any such acts of unlawful discrimination warrant an order requiring Respondent to recognize and bargain in good faith with the Union as exclusive majority representative of employees in the appropriate bargaining unit. B. Background Cook United, Inc., operates retail discount stores, known as Ontario Stores. At certain of these locations, Cook, through CSC Oil Company, maintains gas stations and carwashes . This is the situation at the location in Toledo, Ohio, from which the instant proceeding arises. At that shopping area, employees of the Ontario store have been represented for a number of years by the Union. On the other hand, employees of CSC Oil Company involved in operation of the gas station and carwash are unrepresented and have no history of collective bargaining. The instant case stems from an organizational effort among employees at CSC's carwash and gas station. The gas station was subject to immediate supervision of Rick Amstutz. With respect to the carwash, it appears that in mid-November 1975,2 but prior to the events involved here, Gilbert Rodriguez terminated his employment as manager of the carwash. He was temporarily replaced by a rank-and-file employee, Mark Roberts. It was not until November 25 that Respondent hired Roger Mock as its permanent carwash manager. Employees are assigned to either the carwash or gas station, but are interchanged between the two operations as manpower needs dictate. The first formal step in the organization effort among the gas station and carwash employees occurred on November 19, 1975, when Timothy Teetrick contacted Elden T. Leedy, Jr., a representative of the Union, and scheduled a meeting with union officials. Prior thereto, Teetrick had discussed the possibility of organizing with four employees.3 According to Teetrick, he simply asked these individuals if they were interested in getting a union at the gas station and carwash . Subsequent- ly, on November 21, Teetrick met with two union represen- tatives and obtained authorization cards and union litera- ture. On that same date, Teetrick distributed the literature and authorization cards to certain employees requesting that they sign the cards and return them to him if they wished to join.4 On that same day, Tarry Stoner, and John Gascon signed authorization cards and returned them to Teetrick. Mark Roberts did not sign his card on that day, but later delivered his signed card to Teetrick on November 24. Prior to any union activity, in early November, Robert Williams, a regional supervisor of CSC Oil, was informed by Art Feldman, a managerial official of Cook United connected with the Ontario store in Toledo, that service at both the gas station and carwash was not satisfactory. In addition, it was company practice to advise the various managers of its gas station and carwashes to be on their toes and give good service during the holiday season when business volume customarily increased. Consistent with the foregoing, credible evidence established that CSC officials, during early November, directed their attention to remind- ing managers and employees of certain company policies in connection with service and security and to checking individual performance by employees. These efforts to prod employees toward more rigid adherence to company policies preceded, and hence were not prompted by, any union activity. On November 24, Teetrick, a gas station attendant, was discharged. Thereafter, on November 29, John Gascon, an employee assigned to the carwash, was terminated. On or about November 27, Mark Roberts was terminated. Anoth- er employee assigned to the carwash, Rodney Shaw, who apparently had no connection with the organizational effort, was also terminated in late November. It was not until November 24, after learning of the discharge of Teetrick, that the Union, by telegram, de- manded that Respondent recognize it as majority represen- tative. Under the instant complaint, no evidence exists, nor is there any allegation that Respondent committed indepen- dent violations of Section 8(a)(l) of the Act. It is claimed that the discharge of Teetrick and Gascon violated Section 8(a)(3). As the claim that Respondent also violated Section 8(aX5) is based entirely on N.LR.B. v. Gissel Packing Company, supra, the refusal-to-bargain allegations may only be substantiated on evidence that Respondent engaged in independent unfair labor practices so serious as to render it unlikely that a fair election could be held, even after compliance with conventional Board remedies. Thus, any unlawful refusal-to-bargain finding herein turns critically on the existence of merit in the 8(a)(3) allegations relative to the discharges of Teetrick and Gascon. C. Concluding Findings 1. The alleged discrimination a. In general There is no direct evidence that, prior to the discharge of Teetrick, Respondent knew of his involvement in union activity or that an organizational effort was then underway. In the case of Gascon, it also does not appear that Respondent was aware of his union activity, which was apparently limited to his execution of a union organization card, prior to his discharge. In addition to the foregoing the General Counsel 's claim of discrimination is further compromised by the fact that Cook United, Inc., has had a long bargaining history with the Union relative to its employees at the Ontario store in Toledo, and the further fact that there is no evidence of union animus or a history suggesting that Respondent harbored any resentment to employee assertion of their statutory rights. Accordingly, based on the foregoing, Respondent urges dismissal of the complaint, claiming that the General Counsel failed to meet his burden of proof since the critical elements of knowledge and union animus are absent. The 2 All dates refer to 1975 unless otherwise indicated. 3 The four employees were Mark Roberts, John Gascon , Tarry Stoner, and Dave Wismer. Of this group, all ultimately signed union authorization card, except Dave Wismer. 4 Cards were distributed to Mark Roberts, John Gascon, Tarry Stoner, Kevin Merritt, and David Wismer. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel counters with the view that a proscribed motivation may nonetheless be inferred from the timing of the discharge, the nature of the union activities of the dischargees, the small size of the plant, and the incredulous reasons assigned by Respondent for the terminations. Persuasive authority supports the General Counsel's claim that the missing elements in his case-in-chief do not necessarily warrant summary dismissal of the 8(aX3) allegations herein, and accordingly disposition of the motivation issue turns upon full examination of the total circumstances as set forth below. b. Timothy Teetrick Timothy Teetrick was initially hired by Respondent in October 1973, when he was but 14 years of age. He worked as a gas station attendant during the entirety of his employment. When discharged, Teetrick was in charge of the night shift, a rank-and-file position which did not entail possession or exercise of supervisory authority. Teetrick's normal work hours were from 3 until 10 p.m. As heretofore indicated the station manager was Rick Amstutz, who normally worked from 7 a.m. until 5 p.m. It is a fair statement on this record that the relationship between Amstutz and Teetrick was less than harmonious. Amstutz described Teetrick as a poor employee, who had failed to perform adequately for some time prior to his discharge, but whose derelictions worsened during the later stages of his employment. Specifically, Amstutz indicated that Teetrick was slow in approaching cars needing service, that his physical appearance was not up to par, with Teetrick frequently needing a haircut and wearing a messy uniform. Amstutz relates that Teetrick would violate the Company's rule which preferred two-man car service, that on one occasion Teetrick neglected to lock the gas station after closing, and that Teetrick did not wash windshields as is required under the Company's rules. Amstutz relates that he frequently warned Teetrick concerning these deficien- cies, and even threatened discharge, but that his efforts in this regard did not result in improvement. Teetrick admit- ted that he had been warned about his appearance and about wiping windshields. Also undisputed is the fact that shortly before his discharge, Billy Cravens, a CSC supervi- sor primarily responsible for carwashes, caught Teetrick in violation of the company policy which limited gas station attendants to carrying no more than $50, requiring the balance to be deposited in a safe. I credit Amstutz' general description of Teetrick's adverse work history. Nonetheless, Amstutz took no action to terminate Tee- trick until Monday, November 24. Prior to that date, Teetrick had made initial contact with the Union on November 17, and had distributed union authorization cards among his fellow employees on November 21. On the morning of November 24, Teetrick went to Respondent's premises where he obtained a signed, union authorization card from Mark Roberts. At that time Teetrick was directed by Roberts to Amstutz. Amstutz then s I discredit Teetnck's testimony that, in discharging him, Amstutz stated that, on the night in question, Teetrick had sussed "four windshields," and that Kevin Merrick , who was also on duty that Saturday evening, also missed windshields. In rejecting this testimony I note that from my observation of Teetrick, I did not regard him as an entirely trustworthy witness. He struck effected the discharge, stating that Teetrick's failure to wash windshields on Saturday evening, November 22 was the basis for his action.5 No other reason was given Teetrick for the discharge. The termination notice appearing in company files, recites that Teetrick was discharged because his work was unsatisfactory, specifically indicating "this man was slow waiting on customers and did not do windshields on customers' cars." Despite the absence of union animus and the lack of direct evidence that Respondent was mindful of union activity prior to the Teetrick discharge, the General Counsel urges that a union-related motivation be inferred from the timing of Respondent's action, Teetrick's role in the organizational effort, the small size of the work force, and the allegedly unacceptable explanation given by Respondent for the discharge. I find no merit in the General Counsel's position. With respect to the issue of knowledge, though Teetrick was the principal protagonist of the Union at Respondent's carwash and gas station facility, in the circumstances I am unwilling to infer knowledge under the Board's small plant doctrine, or from the total circumstances. In this latter regard, while the combined crew of the gas station and carwash consisted of but seven employees, Teetrick's union activity, apart from conversations with employees concern- ing the desirability of a union, consisted of soliciting of union authorization cards on November 21 from five of the seven employees. At all times, his union activity was conducted under conditions failing to warrant an assump- tion that any management representative would have been in a position enabling detection thereof. Any inference of knowledge, drawn on the basis of the small plant doctrine herein would necessarily rest on an assumption that Teetrick's efforts were reported by one of his fellow employees, despite the absence of evidence that this was the case. As it does not appear that any managerial official questioned employees concerning union activities or that employees volunteered any such information to manage- ment, and since the union activity was conducted under covert circumstances, I am unwilling to find that the size of Respondent's work force, under established Board policy, warrants an inference that Respondent, prior to Teetrick's discharge, either knew of his union activity or that an organizational drive was then in progress.6 As for the General Counsel's claim that Respondent's reasons for terminating Teetrick were pretextual, and coupled with the timing of the discharge, warrant an inference of discrimination, I am not persuaded that the evidence supports such a claim. Although the immediate reason afforded by Amstutz for Teetrick's discharge was not representative of the more grievous employee offenses, I am unwilling to infer that Amstutz acted upon any reason other than Teetrick's poor work performance. Teetrick admitted that prior to his discharge, he had been called down by Amstutz for a variety of indiscretions, including the amount of cash he carried while on duty, his physical appearance, leaving the station unlocked, letting other me as a somewhat difficult and argumentative individual not above coloring facts to further his own interest. I also note that the specific testimony in question here did not have a ring of truth. B See Picker Corporation, 222 NLRB 2%, 299 (1976). ONTARIO GASOLINE & CAR WASH station attendants off early, slow service, and failure to wash windshields. Amstutz credibly testified that his efforts to correct Teetrick in these areas often went unheeded.? It is true that Respondent did not act upon Teetrick's work inadequacies until after commencement of union activity, and, indeed, there can be no quarrel with the General Counsel's observation that pretext to cover union- related discrimination is often suggested in such circum- stances. However, I find that Amstutz' delay in taking action against Teetrick is credibly explained on this record. Thus, according to uncontradicted testimony of Amstutz, after having voiced a threat of discharge to Teetrick because of a job indiscretion well prior to the termination in question, Teetrick's father intervened and threatened to have Amstutz terminated. Parenthetically, it is noted that Teetrick's parents are involved in the operation of an ice cream store, which trades under the name of "Zip's," an operation in which Art Feldman, an official of Cook United, Inc., was believed to have held an interest. Because of this relationship with Feldman, Amstutz, a young man who impressed me as having limited sophistication, did not take lightly the warning conveyed by Teetrick's father. Amstutz, with substantial corroboration from Robert Williams, the individual responsible for the overall opera- tions of CSC gas stations and carwashes, testified that his fears concerning the threat were not allayed until he had a conversation with Williams shortly before the discharge. In that conversation, Williams urged Amstutz to assume full responsibility in assuring that station attendants live up to their responsibility for providing quick and adequate service to customers.8 Amstutz in response to Williams complained that he was not happy with Teetrick. Williams indicated that as manager, it was Amstutz' responsibility to replace men who didn't do their job. Amstutz then advised Williams that he had been threatened by Teetrick's father. Williams assured Amstutz that he would handle any problem that Amstutz ran into and again instructed Amstutz to do his job. Before the conversation ended, Amstutz informed Williams that he would warn all employ- ees that they would be terminated if they failed to do their job properly. That same evening, Amstutz parked in the shopping area at a vantage point enabling him to observe the gas station. Amstutz testified that after observing Teetrick engage in further violations of company policy that evening, he decided to discharge him.9 The next morning, Sunday, November 23, according to the credited testimony of Williams, Amstutz called him informing that he had checked out Teetrick and found that he was not doing his job, and accordingly had decided to fire him. r My general impression that Teetrick possessed a cavalier attitude towards company rules is confirmed by his own admission that shortly after Cravens caught him carrying more than $50, Amstutz on November 22 caught him in the same violation. 8 Teetnck's own testimony tends to support the testimony by Cravens, Williams, and Amstutz , that prior to the advent of the Union Respondent's officials attempted to tighten up on employees at the gas station and carwash. Teetrick admitted, on cross-examination, that prior to his discharge and the union activity , he learned that Amstutz met with employees and discussed the company policy concerning windshields and the limitation upon the amount of money gas station employees were permitted to carry 9 Teetrick was not scheduled to work on Sunday, and according to 953 In view of the foregoing, particularly Respondent's credited explanation for the timing of the discharge, and the failure of the General Counsel to establish knowledge or union animus, I find that the General Counsel has not established by a preponderance of the evidence that the stated reason for the termination of Teetrick was pretextual or that Teetrick was discharged because of his union activities in violation of Section 8(a)(3) and (1) of the Act. c. John Gascon John Gascon was 16 years of age when he was hired to work in the carwash in October 1975. On November 21, he obtained a union authorization card from Tim Teetrick, signed it, and immediately returned it to Teetrick. Although Respondent at the time of Gascon's discharge was aware of the Union's demand for recognition, there is no direct evidence that Respondent's representatives had any knowl- edge that Gascon was a union supporter.10 According to Gascon, Roger Mock, the newly hired carwash manager, on November 26, remarked that Bill Cravens, Williams' subordinate who was primarily respon- sible for all CSC Oil's carwashes, had informed Mock that everybody "under 18 years old would be let go because they were not old enough to work." This occurred on the first day that Mock began his duties as carwash manager. Thereafter, Gascon, continued to work until his termina- tion, which took place prior to the commencement of work on Saturday, November 29. On that occasion, Gascon was told that since a replacement had been hired, his services were no longer needed. Mock testified that the day before he started work, Williams and Cravens advised him that they wanted to do away with part-time help. According to Mock, they indicated that because of the outside interests of these part- time employees, the Company could not get adequate shift coverage, in that the hours in which these people could work were limited. Mock explained that he decided to lay off Gascon because, of the part-timers, Gascon had the least seniority. In addition, according to Mock, he suspect- ed that he could not rely on Gascon because of certain actions and statements by the latter which suggested his lack of responsibility to his job. This related to Mock's observation of Gascon talking on the telephone for about a half hour on one occasion, and a further incident in which Gascon informed Mock that the employees could get away with a "lot of stuff" when Rodriguez was carwash manager, including sleeping on the job. The termination notice on Gascon, prepared for compa- ny records, was dated December 8, 1975. It states that Gascon was "laid off," and as the reason for his termina- Amstutz, he did not discharge Teetrick immediately on Saturday night, because he wanted Teetrick to check out the station at closing time. Therefore, the actual discharge was not consunun ated until Monday, No- vember 24. 10 Gascon testified that he intended to attend a union meeting scheduled for November 21, and that Kevin Merrick had offered him a ride to said meeting. However, he did not attend because Merrick did not pick him up. Merrick, though given a card by Teetrick, never signed same. Contrary to the General Counsel, I am not willing to infer from this evidence that Merrick was so hostile to the organizational effort that he would report to Respondent the union leanings of a fellow employee. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, recites: "he was under age and the hours were inenterfearing [sic] with his work & school - replaced with a full-time man." The termination form further indicates that Gascon was recommended for reemployment. As in the case of Teetrick, there is no direct evidence that Respondent knew of Gascon's union activity. Here again, the Board's small plant doctrine does not furnish a reasonable basis for inferring such knowledge. Gascon's union activity was limited to the execution of a card and there is no indication that this was observed by any representative of management. In the absence of evidence that union activity was a subject of discussion between employees and any management representative, I find that it would be inappropriate to apply the small plant doctrine in these circumstances. It is true, as the General Counsel observes, that the stated reason for termination of Gascon raises several questions. Thus, according to Mock he selected Gascon to be among the part-timers laid off becuase he was the least senior of that group. Company records on the other hand indicate that another carwash attendant, Rodney Shaw, was hired on November 15, 1975, and hence was junior to Gascon. The company records also show that Shaw was only 16 years of age when Gascon was terminated, yet Shaw did not lose his job, but was continued as an employee until terminated for cause for reasons other than his age. Aside from the contradictions in Mock's testimony, evidence adduced by the Respondent concerning the mishandling of rewash coupons and discount coupons at the carwash seemed so tenuous, in terms of its relationship to the termination of Gascon, as to also arouse suspicion. For this was not linked with any evidence tending to show that Gascon was suspected, more than any other employee assigned to the carwash, of responsibility for any losses sustained by the Company as a result of improprieties in this area." There can be no question as to the soundness of the General Counsel's observation that a proscribed motivation might be inferred in circumstances where an employer's explanation for a discharge is shifting and marked by contradiction and implausibility. For, if "the stated motive for discharge is false, . . . [one ] can infer that there is another motive." See Shattuck Denn Mining Corporation (Iron King Branch) v. N.LRB., 362 F.2d 466, 470 (C.A. 9, 1966). However, in the circumstances presented here, I am not persuaded that the questionable nature of the defense necessarily points to a conclusion that the reasons assigned for the termination of Gascon were false. In my opinion, having considered all the evidence, with the opportunity to observe and question the witnesses directly, the confusion apparent on the face of the defense stems from Roger Mock's own confusion, and his limited capacities for comprehension and recollection. Mock struck me as a young man, with limited experience in the ways of managing, who was awe stricken by this proceeding. 1 i There was testimony that Rodney Shaw, after the discharge of Gascon, accused Gascon of having given away free carwashes. Although this evidence and the background facts concerning Respondent's poor rewash and discount coupon experience at the Toledo carwash may have been adduced for the purpose of portraying Gascon in an unsympathetic light, this implication of Gascon in possible dishonest behavior did not occur until after his discharge, and hence could not have been a causative factor therein He was hired on November 26, as carwash managirr, apparently, with no background whatever in supervision. Only a few days after his assumption of responsibility as carwash manager, Mock found it necessary to terminate three of the four employees assigned to him. Thus, on November 27, Mark Roberts was terminated for not showing up for work, on November 29, Gascon was terminated, and, on or about November 30, Mock termi- nated Shaw. His testimony at this hearing touched on circumstances surrounding all three discharges and the confusion under which he labored in relating that testimony was obvious. I simply do not believe that Mock was capable of a clear articulation of the basis for his actions against Gascon. I do not attribute his difficulty in attesting to the facts as suggesting a bungled attempt at pretext. Mock, with corroboration from Cravens and Williams, truthfully testified that before assuming his duties as carwash manager, he was instructed to eliminate substan- tially all of the part-time carwash employees, who had other work or educational responsibilities on a daily basis. Indeed, according to Mark Roberts, a witness called by the General Counsel, in mid-November, at a time which apparently predated union activity, Williams and Cravens informed him that part-time carwash attendants would have to be replaced by full-time employees. However questionable this directive may have been, its origin predated the union activity, and hence the Gascon issue is narrowed to whether or not Mock's implementation of that directive against Gascon was founded on the latter's union activity. Considering the nature of Gascon's union activity, the absence of knowledge thereof on the part of Respon- dent and the lack of evidence that Respondent had a hostile attitude toward employee organizational rights, it strikes me as entirely unreasonable to conclude that the weakness- es in the General Counsel's case should be excused because, as heretofore explicated, the key defense witness was personally incapable of rendering a clear and convincing explanation of the reasons for his actions. Accordingly, though I would agree that in certain circumstances the missing elements in the General Counsel's case might be overcome by the suspicious and highly questionable nature of an employer's explanation for a discharge,12 in this case a preponderance of the evidence does not persuasively support rejection of the conclusion that Mock replaced and then terminated Gascon pursuant to his understanding of the instruction by higher management officials that part- time employees be replaced by full-timers, action which in no way related to Gascon's union activity.13 Accordingly, I shall recommend dismissal of the 8(a)(3) and (1) allegations concerning Gascon. D. The Refusal to Bargain The 8(a)(5) allegation appearing in the complaint, based as it is on N.LR.B. v. Gissel Packing Co., 395 U.S. 575 and 12 Cf. Long Island Airport Limousine Service Corp, 191 NLRB 94 (1971). 13 See Siltec Corporation, 217 NLRB 282 (1975); Bayliner Marine Corporation, 215 NLRB 12 (1974); Viking Body Repair, Inc., 189 NLRB 482 (1971). ONTARIO GASOLINE & CAR WASH Trading Port, Inc., 219 NLRB 298, depended critically on the existence of merit in the 8(a)(3) allegations. With dismissal of these latter allegations, the predicate for the refusal-to-bargain allegation fails to exist, and, accordingly, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS 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 mean- ing of Section 2(5) of the Act. 3. Respondent did not violate Section 8(aX3) and (1) of the Act by discharging employee Timothy Teetrick on 14 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. 102.48 955 November 24, 1974, and employee John Gascon on November 29,1975, because of their union activity. 4. Respondent did not violate Section 8(aX5) and (1) of the Act by refusing, since November 24, 1975, to recognize and bargain with the Union as majority representative of employees in the appropriate bargaining unit. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 It is hereby ordered that the complaint herein be, and hereby is dismissed in its entirety. 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.