Associated Milk Producers

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Associated Milk Producers, Inc. and Chauffeurs, Teamsters and Helpers Local 47, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 16-CA-8782 and 16-RC-8022 April 8, 1981 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On September 9, 1980, Administrative Law Judge Clifford H. Anderson issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions, as modi- fied herein, and to adopt his recommended Order. The Administrative Law Judge properly found that Respondent violated Section 8(a)(l) of the Na- tional Labor Relations Act, as amended, in Septem- ber 1979,1 by the following preelection conduct: 2 interrogating employees L. D. McDaniel and Charles Tingle about their union activities, solicit- ing their grievances, and creating the impression that they would be solved; and threatening McDaniel and Tingle with reductions in wages, hours, and retirement benefits, and with discharge on a pretext if the Union organized Respondent's employees. The Administrative Law Judge also correctly concluded that Respondent violated Section 8(a)(1) and (3) of the Act by withholding until November 18 its systemwide wage increase of October 7 from the Crowley employees involved in this proceed- ing. In so doing, we rely on his rationale insofar as he found that said employees would have received the increase but for the presence of the Union. 3 In addition, we agree with the Administrative Law Judge that Respondent's asserted reason for discharging Tingle on October 20, namely, his vio- lation of a rule against removing equipment from a damaged truck, was pretextual, and that Respond- ent's "true reason" therefor was to punish Tingle for his union activities and to influence other em- ployees to vote against the Union. In this connec- tion, the Administrative Law Judge observed that it is "axiomatic that an employer under the Act ' All dates helow, refer to 1979. 2 The election as held on November 2 with the results indicated helovr ' See Ru.sel Stover Cindies. Inc.. 221 NlRB 441, 447 (1 975). a;nd lte Gatet Rubber Comlnpanuy. 182 NLRI 95. 98 119)7(0) which v.ere properl invoked hy the Adminisratie Law Judge Accordingly. we do not find it necessary to adopt his alternatise Finding that the wilhholding of the increase, if not unlawful initially, suhsquenll 5 became ulalssful wshen Respondent iterated its unlawmful realon to anl cnplh eec 255 NLRB No. 104 may fire an employee for any or no reason so long as the discharge is not in whole or in part based on an employee's union or protected concerted activi- ties." As the Board in Wright Line4 abandoned the "in part" language, we disavow the Administrative Law Judge's statement in that regard. Finally, the Administrative Law Judge correctly found merit in the Union's first and second objec- tions in the election held on November 2, 1979, in Case 16-RC-8022, to the effect that Respondent's unfair labor practices also interfered with the elec- tion. 5 Although the Administrative Law Judge found no merit in the Union's third objection, which alleged that a letter sent to employees on October 29 contained misrepresentations that inter- fered with the election, 6 the Administrative Law Judge recommended, and we agree, on the basis of the two meritorious objections that the November 2 election should be set aside and that Case 16- RC-8022 be remanded to the Regional Director for the purpose of holding a new election. The Admin- istrative Law Judge further recommended in light of Respondent's unfair labor practices that the Re- gional Director include in the notice of election the following paragraph consistent with the Board's Decision in The Lufjkin Rule Company, 147 NLRB 341 (1964), and Bush Hog, Inc., 161 NLRB 1575 (1966): 7 Notice To All Voters The election conducted on November 2, 1979, was set aside because the National Labor Rela- tions Board found that certain conduct of the Employer interfered with employees' exercise of a free and reasoned choice. Therefore, a new election will be held in accordance with the terms of this notice of election. All eligible voters should understand that the National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit, and protects them in the exercise of this right, free from interference by any of the parties. 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 4 right Lilne a Divisiont of Wright Lif.e. Inc.. 251 NL RI 1083 ( 198t) ' There were re 15 votes for and 16l against h Ulliii, and I challengcd ballot, that of Tingle. w ho, as fouid above. silas discriminaltorily dis- charged and therefore enliled to ole As the Adminlistratic Lass Judge polnted out. even if i i assumed that Tingle soletd fior the Lnioln, the rcsult Xould he ia tie ole anid a loss foir the Ullioln. ';In the absence of exception, to his inding, e adopt it pro ibraliu. I7 lie ahi senllce if exceptionlls thiercti. a [e adopt this recinnnemilldalio prn Jorin ASSOCIATED MILK PODUCERS 751 hereby orders that the Respondent, Associated Milk Producers, Inc., Crowley, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.8 IT IS FURTHER ORDERED that the election con- ducted on November 2, 1979, among the Employ- er's employees be, and it hereby is, set aside, and that Case 16-RC-8022 be, and it hereby is, severed and remanded to the Regional Director for Region 16 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] , We hereby correct the Adminitratice Las% Judge's Order and lnoti " hich state that the wIage increase ,,is withheld from the Crowtle) em- ploycee until November 13 rather than No ember 18 DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge: This case was heard before me at Fort Worth, Texas, on April 22, 1980. The case was heard pursuant to a report on objections, order consolidating cases and notice of hearing issued by the Regional Director for Region 16 of the National Labor Relations Board on November 28, 1979. The order consolidating cases consolidated: a com- plaint in Case 16-CA-8782 issued by the Regional Direc- tor on November 27, 1979, based on a charge filed by Chauffeurs, Teamsters and Helpers Local 47, affiliated with International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers of America (herein the Union), on October 25, 1979, and amended on No- vember 26, 1979, against Associated Milk Producers, Inc. (herein Respondent or the Employer), and a hearing on objections, based on the Charging Party's objections to the election held among Respondent's employees on No- vember 2, 1979, in Case 16-RC-8022, filed by the Union on September 13, 1979. The complaint, as orally amended at the hearing, al- leges certain statements by agents of Respondent as vio- lative of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, and the with- holding of wage increases to employees at Respondent's Crowley, Texas, facility and the discharge of employee Charles Tingle as violative of Section 8(a)(3) and (1) of the Act. Respondent, admitting the agency status of the individuals involved, denies the occurrence of statements violative of the Act. It admits the termination of Tingle and the withholding of the wage increase, but asserts these actions were taken for nondiscriminatory reasons. The issues raised by the report on objectionst include the conduct alleged in the complaint and an additional I The parties did not sck revicex of tile Regional D)irclor's repor t o objectlions and all parties propperl) trcated the nlattier re,ol\cd therc il. such as the issue of the esr,. ice of the objectliol upon Respondent.; a no locger in issue allegation that Respondent made prejudicial misrepresen- tations in a preelection letter to employees. All parties were given opportunity to participate at the hearing, to introduce evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file post-hearing briefs. Upon the entire record herein, including the post-hear- ing brief of each party, and from my examination of the witnesses and their demeanor, I make the following: FINDIN(iS 0- FACt I. JURISI)ICTION Respondent is a Kansas corporation with corporate headquarters in San Antonio, Texas, division offices in Amarillo, Texas, and distribution facilities in Crowley, Texas. Respondent annually, in the course of its business operations, has gross sales in excess of $500.000 and pur- chased goods and services valued in excess of $50,000( which are shipped directly to its Texas facilities from points located outside the State of Texas. II. L.ABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. I H IEV-NTS A. Background Respondent is involved in the transportation of milk. Its operations are divided into three regions including the Southern Region. There are seven divisions in the Southern Region including the Dallas-Fort Worth Divi- sion. The Dallas-Fort Worth Division has Texas facilities at Crowley, Sulphur Springs, Sanger. and Stephenville- Comanche. The Crowley facility (sometimes referred to as the facility) employs local and transport truckdrivers and mechanics. At relevant times there were approxi- mately 34 such employees at the facility. Some years ago, the Union had attempted unsuccess- fully to organize Respondent's Crowley employees. It again commenced an organizing campaign in 1979.2 In very early September a fellow driver at the Crow- ley facility asked long-time employee L. D. McDaniel to solicit employee support for the Union. McDaniel agreed and immediately commenced such activity. The Union. by letter dated September 7, informed Respondent of its organizing campaign and identified McDaniel as active in that campaign. B. Evidence Concerning Statementv .411eged as 8(a)(l) Violations McDaniel testified that on or about September 7. after he had completed his day's driving assignment, he spoke alone with Location Supervisor J. D. Foster in Foster's office. Foster asked McDaniel if he knew anything about union cards being handed out to employees. McDaniel responded that he did and offered Foster an authoriza- lion card, which Foster declined. Foster asked McDan- ' All daic hltercinaflter rfle to 197 i h's'm olltr c tolcd ASSOCIATED MILK PRODUCERS 75 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iel, in McDaniel's recollection, if "I thought that was going to do any good." McDaniel answered, "I thought it was probably the only way we had the way it looked." Foster testified that he had learned of union ac- tivity from an employee on the date a letter concerning the Union had been signed; i.e., September 7. Foster could not recall the above conversation with McDaniel. McDaniel testified to a conversation with Jack Hagler, then Respondent's Fort Worth division manager, and Foster on September 10 in the Crowley facility employ- ee break room. Hagler told McDaniel he had received the letter from the Union and "he wanted to know what was the problem." McDaniel responded that he desired increased compensation. Hagler referred to a previous wage increase and noted that it was "the best they could do." Hagler suggested he opposed the Union and the conversation ended. Hagler did not address this conver- sation in his testimony. Foster was unable to recall this conversation with McDaniel. Former employee Charles Tingle testified that, on Sep- tember 12 or 15, he completed his run and was called into Foster's office where he had a conversation with Foster and James McAdams, Respondent's transportation manager. Tingle testified that Foster asked him if he had received a union card and if he were going to sign it. Tingle replied that he had received a card and had al- ready signed it. Foster then asked if Tingle knew what the card meant. Tingle replied that he did not, but that he was going to a meeting that evening to form an opin- ion on which way he was going to vote in the election.a Foster opined that the Union would hurt the Employer. Tingle disagreed stating employees "needed something anyway and we weren't going to lose anything, and it didn't cost anything to vote one way or the other. Tingle testified that Foster and McAdams then asked him questions "about what I thought the location needed." Tingle suggested Respondent provide a me- chanic on weekends. McAdams said that had been tried before and did not work out. McAdams could recall having a single conversation with Tingle concerning the Union although he was not asked its date. He testified that during the conversation Tingle told him that he had signed a union card. Mc- Adams further testified, "I asked [Tingle] what problems we had that he felt we needed to correct within our or- ganization." He recalled Tingle's response as being that Tingle did not like the type of trucks the Company was using. Foster did not recall this conversation. Tingle testified to a conversation in the office with Foster and Janice Dickerson, a transportation clerk/secretary-not a unit position, at the end of his workday on September 15. In a discussion about the Union, Foster asked Tingle his views. Tingle told Foster he was for the Union and was going to vote for it. As the conversation developed, Foster asked Tingle what had been discussed at the union meeting. Tingle replied the main topics were retirement and insurance. Insurance and retirement were then discussed and as Tingle charac- terized it, the "discussion got pretty heavy." Tingle testi- ' lgle testified he attended a union meeting on September 12. thus placing this conversation on Septemher 12 rather tha i on September 15. fled that, at this point in the conversation, L. D. McDan- iel entered the room and joined the discussion. Tingle testified that Foster then said that Respondent "could bust your [sic] back on your retirement" and "could cut us back to 40 hours a week and minimum wage." Foster continued in Tingle's recollection to state that if Respondent "did go union that the dairymen could buy milk trucks and they could haul their milk in- dependently like they did years ago." Foster added fur- ther that if Respondent wanted to fire somebody during the union election, "they could find a hundred and one reasons to fire somebody." McDaniel testified that on September 15 he came upon and joined a conversation among Dickerson, Foster, and Tingle. McDaniel testified: Well, they was discussing the union and it was getting along pretty good on it really. Foster asked McDaniel what he thought about the Union and he answered that "we had to try it, it was the only way to go." McDaniel recalled Foster said that Re- spondent could take away union benefits and go back to leasing trucks from individuals to haul milk as they had done in prior years. He also recalled Foster saying that "under the union" Respondent "could come up with a lot of ways of firing a person, you know, just if they wanted to get rid of them. Dickerson did not testify. Foster did not recall ever having had a conversation with McDaniel and Tingle present in the office during this period. C. The Omitted Wage Increase Respondent, until October, had a practice over many years of granting single annual across-the-board wage in- creases in or about June. This had been the case in 1979. On September 21, Respondent's division management learned that, as a result of changes in the interpretation of language in applicable Federal Wage and Price Guide- lines, divisional employees could receive an immediate additional 8-percent across-the-board wage increase. Ef- fective October 7, all divisional employees, except the Crowley location employees, received an 8-percent in- crease. On advice of counsel, because of the union cam- paign and forthcoming election, Respondent did not give Crowley employees the increase. On or about November 18, Crowley employees were given the wage increase al- though it was prospective rather than retroactive to Oc- tober 7. McDaniel, in the course of his duties, has occasion to see drivers from other divisional facilities on a regular basis. He learned on an uncertain date from such em- ployees that they had been told a day or two before that they were going to receive a raise. McDaniel testified to a conversation with Foster on or about September 15 in which he asked Foster about a raise and Foster said he did not know anything about it. McDaniel testified to a second conversation, by telephone, with Foster on Octo- ber 20, 1979. The conversation concerned the following day's assignment but then turned to the raise. Foster told McDaniel that the Crowley employees would not be re- ceiving the raise. McDaniel testified that Foster told him: ASSOCIATED MILK PRODUCERS 753 "Well, he said [what] with the union activity they couldn't give the raise; it would interfere with it." While conceding a "slim" possibility he had raised the matter of the Union, McDaniel said he did not think he first men- tioned the Union or union activities in the conversation. Tingle testified to an October 12 conversation in the office with Foster, James Raifsnider, 4 and W. W. Spoon, employees of Respondent. During the conversation Tingle made it clear he was in favor of the Union. The discussion included union retirement benefits. During that conversation, Tingle testified that he and Spoon asked [I]f the reason they got the eight percent raise was because the union talked at the Crowley yard and that we hadn't received one, and they said it couldn't come in effect until October the Ist . . . J. D. Foster said they couldn't put it in the budget until October the Ist. Tingle testified a second time to the comments regarding the wage increase: W. W. Spoon and I both asked James Raifsnider and J. D. Foster if the reason that the other yards got the eight percent raise was because of the union talk at Crowley and they said definitely it wasn't, that it was going to be decided in the budget for October Ist. Neither Spoon nor Raifsnider testified. Foster testified that he learned of the raises at other facilities at or about the time they were issued, i.e., on October 7. He was unable to place exactly when he learned the Crowley employees would not receive the wage increase. He fur- ther testified that whereas he did not "really" know the reason the Crowley employees did not receive the raise: Well, I didn't think they could give a raise when they was having an election or something like that. I had heard this. Without establishing a date, Foster recalled McDaniel asking him about a raise that had been issued to other lo- cations. He recalled telling McDaniel that he did not know why Crowley employees had gotten a raise. He did not testify concerning the other remarks attributed to him concerning the wage increase. D. The Discharge of Tingle Charles Tingle had been employed as a truckdriver hauling raw milk since March 1978. He was fired on Oc- tober 20 and had not been offered reinstatement as of the time of the hearing. He voted under challenge in the No- vember 2 election; however, the challenge was not deter- minate of the results of the election and was withdrawn. Respondent at its Crowley facility operates both owned and leased trucks. Tingle's regular truck was 4 Raifsnider was identified by Tingle as the location supervisor's assist- ant. The General Counsel had originally pled Raifsnider as assistant yard supervisor. Respondent denied the allegation and the General Counsel withdrew it at the commencement of the hearing as well as a paragraph alleging certain conduct by Raifsnider on October 12. Raifsnider "sas on the agreed-upon voter eligibility list. owned by Respondent. For some time Tingle was dissat- isfied with the suspension system of the driver's seat. Ap- parently some mechanical malfunction prevented the seat from absorbing road shock. Tingle's routes included non- paved roads and he felt repair or replacement of the seat was desirable. He had complained to the facility mainte- nance staff concerning the matter without result. On October 16 an employee of Respondent operating a leased truck had a fatal accident. The heavily damaged truck was brought on a flatbed truck to the Crowley fa- cility on October 17 pending resolution of the complica- tions arising out of the accident. The damaged rig was off loaded at the facility on October 19. Tingle saw the damaged rig in the yard on October 17. On October 18, Tingle and several other employees were sitting in the Crowley yard along with Melton La- boski. Laboski was regularly involved in truck mainte- nance and repair at the facility. Tingle believed at the time he was the shop foreman, but in actuality he was a unit employee who voted in the election without chal- lenge. Tingle asked Laboski what was to be done with the seats in the damaged truck. Laboski answered that there was nothing that could be done with them, that they would be "salvaged out." Tingle asked Laboski if he could take a seat from the wrecked vehicle and sub- stitute it for the defective seat in his own truck. Laboski responded, "Hell, I don't care. A.M.P.I. bought that truck when it hit the bridge." 5 Tingle also testified that he asked and received permission from Laboski to also remove the side door panels and armrests from the dam- aged truck so he could install these parts as well in his assigned vehicle. That same day, Tingle removed the parts described from the damaged truck and substituted these parts for those in his own rig. To do so he drilled new mounting holes in appropriate places. The now removed original seat, side door panels, and armrests from his truck were placed with the damaged truck. McAdams testified that he received a call on the eve- ning of October 19 from Foster who told him that Tingle had removed the seat from the damaged truck and had installed it in his own company truck. McAdams consulted with his superior Dallas-Fort Worth Division Manager Hagler the next morning and told him that he felt Tingle should be terminated for his actions. Hagler gave McAdams permission to do what he thought right. McAdams went to the Crowley facility on October 20 and spoke to Tingle. McAdams testified he called Tingle to the office as Tingle ended his route. He asked Tingle if he had taken the seats from the damaged truck and in- stalled them into his own assigned truck. Tingle said he had. McAdams continued: I asked him why, I believe, at that time, and he said because he wanted them, something to this effect. I asked him, I believe, if he had permission at that time and he told me he had talked to Melton La- boski. The statement of Lahoski, irtuall) identical to the testinyll of McAdanes at the hearing, refers to the fact that Respondent purchases from les, ors those schiclcs dstroed hile in Respondent', custloI ASSOCIATED MILK PRODUCERS 753 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I told him that he knew that Melton Laboski was not his supervisor, that J. D. Foster was his supervi- sor, and that I was terminating him. Tingle testified that upon reaching the office Mc- Adams told him to "punch the timeclock you're termi- nated as of now." Tingle asked why whereupon McA- dams told him he had stolen the seats out of the wrecked truck and that he had spread rumors that the driver of the truck was using alcohol and drugs. Tingle told McAdams he had taken the seat of the truck, but that he had done so with the permission of Melton Laboski and that his own seat was broken. McA- dams told Tingle, Laboski did not have "any kind of au- thority to say anything like that." Tingle then turned to Foster who was also in the office. Foster, however, only pointed to McAdams and said "that's the man you go to talk to." Tingle offered to return the seat, but was told "that wouldn't do." Tingle then challenged McAdams by as- serting that the proffered reason for his termination was not the true reason. McAdams answered: "Well that's reason enough." Tingle then gathered his belongings and left the facility. He had not been offered reinstatement as of the time of the hearing. Foster did not testify regard- ing these events. Tingle testified without contradiction that he had pre- viously neither received a reprimand nor been told his work was unsatisfactory, although he did admit he had been talked to about his driving. He further testified that Foster had discussed a promotional opportunity with him. Respondent was apparently considering giving Tingle the position. The promotion did not occur how- ever. Tingle testified that Foster had told him that he had a good future with the Company. Foster did not tes- tify regarding these matters. E. Election Campaigning and Result Respondent sent to employees a letter dated October 29, 1979, which was received by employees on or about October 30. The letter contained campaign material. The Union sent a letter to the employees on October 31, re- ceived on or about November 1, which addressed certain of the contentions contained in Respondent's October 29 letter. A meeting of employees was also held by the Union on the evening of November 1, although it was not attended by all employees. On November 2 the election was held with the Union losing by a single vote with Tingle's vote challenged. Since, assuming Tingle's vote was in favor of the Union, his challenged vote could at best have resulted in a tie vote which results in a loss for the Union, the challenged vote was not determinative of the results of the election. On November 9 the Union filed objections to the con- duct of the election. IV. THI AlI.EGED UNFAIR LABOR PRACTICES Statements Alleged as Violative of Section 8(a)(l) of the Act Tingle and McDaniel creditably testified to a variety of conversations with admitted agents of Respondent: Foster, McAdams, and Hagler. Foster generally pro- fessed an inability to recall the conversations. He im- pressed me as a witness lacking in candor who, now un- comfortable with his conduct in issue, had determined to avoid responsibility for his actions by failing to recall them. I specifically discredit Foster whenever his testi- mony is inconsistent with that of Tingle or McDaniel. Hagler did not testify concerning the statements attribut- ed to him. McAdams' recollection of the conversations, while fragmentary, was not directly inconsistent with that of McDaniel and Tingle. I found his demeanor to be significantly less than that of Tingle and McDaniel and also discredit McAdams where his testimony is inconsist- ent with Tingle or McDaniel. Based on the above, I specifically find that Respondent engaged in the conduct attributed to them by Tingle and McDaniel as set forth in section III, b, supra. Thus on September 7, Foster interrogated McDaniel about his union activities; on September 10, Hagler solicited McDaniel's grievances and created the impression he would solve those grievances to discourage support for the Union; on September 12, Foster and McAdams inter- rogated Tingle about his union activities, solicited his grievances, and created the impression they would solve those grievances to discourage support for the Union; on September 15, Foster interrogated Tingle concerning his support for the Union, threatened Tingle and McDaniel with reductions in wages, hours, and retirement benefits if the Union organized Respondent, and threatened them with discharge on a pretext if the Union successfully or- ganized Respondent. While the complaint does not without exception cor- rectly allege the date each incident occurred, it is not so inaccurate as to be prejudicial to Respondent and the conduct in question was fully litigated. Respondent, by engaging in the conduct described above, violated Sec- tion 8(a)(1) of the Act. The Withheld Wage Increase There is no dispute with respect to the facts concern- ing Respondent's decisionmaking process and implemen- tation of the October wage increase. Respondent had a longstanding practice of granting single, divisionwide, across-the-board wage increases in the summer of each year. It did so in 1979. After the filing of the petition on September 13 and for objective reasons unrelated to union activity at Crowley, Respondent's divisional man- agement learned that a substantial across-the-board wage increase was to be issued. Respondent's counsel advised that the increase be withheld at Crowley due to the peti- tion and pending election. This wage increase was grant- ed to all division employees effective October 7 except the Crowley yard. The increase was granted Crowley employees effective November 18. ASSOCIATED MILK PRODUCERS 755 I The General Counsel and the Union contend the delay in granting the increase at Crowley was improper. The General Counsel argues further that, even if the withheld increase was not per se illegal, it became so when Re- spondent omitted to explain its rationale of withholding to employees. Respondent argues its actions were neces- sary and proper. The Board's rule with respect to the granting or with- holding of wage increases during union organizing is simply stated, but its application varies. An employer must take the action that it would have taken were there no uion activity underway. The Board places an affirm- ative duty on employers who grant wage increases during the pendency of an election petition to come for- ward with an explanation for the increase. Where an em- ployer has decided to grant a wage increase, but has no objective evidence of the innocent reason for the in- crease, the Board has allowed the benefits to be withheld by the employer in order that it may avoid risking un- lawful interference with the election. The Singer Compa- ny, Friden Division, 199 NLRB 1195 (1972); Great Atlan- tic & Pacific Tea Company, Inc., 192 NLRB 645 (1971). Where the increase withheld from employees is a normal one so that a normal course of action is altered because of employees' union activities, the employer vio- lates Section 8(a)(1) and (3) of the Act. Russell Stover Candies, Inc., 221 NLRB 441 (1975); The Gates Rubber Company, Inc., 182 NLRB 95 (1970). The Board has also held that a good-faith belief by an employer that it could not award a wage increase because of the existence of a representation petition is not a defense to otherwise vio- lative conduct. Dorn's Transportation Company, Inc., 168 NLRB 457 (1967). Nor is the possibility of being exposed to unsustainable allegations of wrongdoing by another party a defense to actions resulting in a denial of employ- ees' statutory rights. GAF Corporation, 196 NLRB 538 (1972). Respondent seeks to characterize its October increase as unusual, irregular, and not based on business consider- ations. It argues that, had it granted the wage increase to Crowley employees, it would have been unable to justify its decision to do so and would therefore have been held to have violated the Act. It notes further that it "at- tempted to minimize the impact of the legal dilemma it found itself in by not discussing the wage increase in any communications with its employees." Respondent's October wage increase, viewed from the prospective of the Crowley location, had aspects of both regularity and irregularity. Respondent is correct that an October increase was unprecedented, that the traditional annual increase had already been awarded, and that there was no reasonable expectation by any divisional employ- ees of such an increase. On the other hand, there was un- disputed evidence that the increase was decided upon by higher officials free from any consideration of the union campaign at the Crowley facility. More importantly, the increase was given to all division employees, save Crow- ley employees, and Crowley had a longstanding history of receiving increases at the same time as other divisional units. Where, as here, a systemwide increase is put in effect in a manner free from union considerations, the with- holding of that increase at a subdivision unit undergoing union organization is not necessary to avoid risking un- lawful interference with the election as in Singer. supra. This is so because the systemwide application does what a regular pattern of wage increases does in other circum- stances-provides the evidence necessary to demonstrate that the increase was given free from union or other pro- hibited considerations. On this record, there can be no contention that Respondent would have been at risk had it granted the wage increase at Crowley at the same time all other divisional facilities received their increase. The increase was occasioned by independent events totally unrelated to the Crowley union election campaign and Respondent had a long history of treating Crowley as an integral part of its division. The Board has considered systemwide changes in wages and benefits as "normal" or free from improper considerations without inquiry as to their historical pat- tern and has found the withholding of such an increase at a single facility during preelection campaigning to be violative of Section 8(a) (1) and (3) of the Act. Russell Stover Candies, Inc., supra. Accordingly, I find that Re- spondent violated Section 8(a)(1) and (3) of the Act by withholding its systemwide increase from its Crowley fa- cility employees because of the pendency of the repre- sentation petition. Even were I to have concluded that the withholding of the increase was not improper from its inception. I would find it became so when Respondent told at least one employee that the raise was withheld because of union activity.6 Sta-Hi Division. Sun Chemical Corpora- tion, 226 NLRB 646 (1976). The Discharge of Charles Tingle Employee Tingle was discharged on October 20, 1979. Respondent asserts that he was fired for violating a rule against removing equipment from damaged vehicles. It correctly notes on brief that "an employer has the right to discharge for good cause even the most active and outspoken union organizer." The General Counsel con- tends that the asserted reason for the discharge was pre- text with the actual reason being Tingle's sympathy and support of the Union. It is now axiomatic that an employer under the Act may fire an employee for any or no reason so long as the discharge is not in whole or in part based on an employ- ee's union or protected concerted activities. Thus, in this sense, it is immaterial whether an employer had "good cause" or not when it discharged an employee. Where, however, the discharge is assertedly for reasons other than those offered by the employer, it is appropriate to examine the circumstances of the discharge to determine not if the employer's reasons were sufficient but rather if they were in fact the true cause of the discharge. Where there is an absence of credible explanation for the dis- charge, it may be inferred that the discharge was moti- vated by reasons prohibited by the Act. Shattuck Denn 6 I again credit the testimony of McDaniel over Foster, to the extent Foster's limited recollection contradicted McDaniel. and find that Foster told McDaniel that the Crowley facility employees would not be getting the raise because of union activity. ASSOCIATED MILK RODUCERS 755 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966); General Thermo. Inc., 250 NLRB 1260 (1980). For the reasons hereinafter set forth, I find that Re- spondent's asserted reason for the discharge of Tingle was pretext and that the true reason for his discharge was his union activities and the expectation of Respond- ent that his discharge would have a chilling effect on employee expression of their voting preferences in the forthcoming election. Accordingly, I find that Respond- ent by discharging Tingle has violated Section 8(a)(l) and (3) of the Act. The predicate to my determination that Tingle was discharged because of his union activities is the illegal conduct of Respondent's agents as described, supra, under my analysis of conduct alleged as violative of Sec- tion 8(a)(1) of the Act. Respondent came to learn of Tin- gle's intention to vote for the Union and general proun- ion sympathies on or about September 15. In addition to illegally threatening loss of benefits, Respondent's agents suggested to Tingle that union supporters could be termi- nated for contrived reasons. Thus, not only had the Gen- eral Counsel proved knowledge of Tingle's union activi- ty and union animus on the part of Respondent, but also it established a threat to discharge union supporters for false reasons. Tingle's "discharge is thus a fulfillment of this prophecy." General Thermo, Inc., supra at fn. 4. Tingle's actions, which were asserted as the cause of his discharge, are not in dispute. Tingle, with the prior consent of the yard mechanic, substituted functional components taken from a damaged vehicle for inoper- ative components in the company vehicle he was as- signed. In so doing he drilled mounting holes in his vehi- cle.7 This conduct was reported by Foster to McAdams who contacted his superior. McAdams, receiving permis- sion to do what he thought right, then terminated Tingle. I have previously found agents Foster and Mc- Adams have violated the Act and I have discredited their testimony to the extent it was contradicted by em- ployees McDaniel and Tingle. I here discredit their testi- mony to the extent that it asserts that Tingle's discharge was not for prohibited reasons. My findings herein do not rest solely on demeanor evi- dence and my previous findings with respect to Re- spondent's agents' knowledge and animus regarding Tingle and other employees' union activities. Two incon- sistencies exist with respect to the discharge which criti- cally undermine Respondent's defense.8 First, employee knowledge of and the previous application of the pur- ported rule against transferring parts from damaged equipment was much in doubt. Second, Respondent nei- ther investigated the contention of Tingle that he had re- ceived permission to remove the seat from Laboski, nor 7 I do not accept the contention that these mounting holes, which were revealed when the damaged vehicle parts were removed from Tin- gle's truck, constitute more than cosmetic damage to the rig. 8 Additional evidence auguring against Respondent's contention is the lack of warning or punishment less than discharge given to Tingle. This is especially true where there was no dispute that Tingle had been a not unsatisfactory employee, mentioned for possible consideration for promo- tion, and that he had had no prior warnings or reprimands. punished Laboski for his giving Tingle permission to un- dertake the switch. The rule Respondent asserted in defense of its termina- tion was that employees are not permitted to remove parts from damaged vehicles unless and until the vehicle had been released to the location and the location man- ager supervises their removal. This rule or instruction was apparently orally transmitted to location manage- ment, but there is no evidence that the rule was in writ- ing or that employees were made aware of the rule. Rather, the record reflects that neither Tingle nor the other employees present when Tingle asked Laboski for permission to remove the parts nor Laboski considered that Tingle was proposing that a rule be broken when he asked to remove the seat from the damaged vehicle. Moreover, there is additional evidence, which I credit, that employees had been taking parts from damaged ve- hicles previously without criticism or discipline. No evi- dence was introduced that any employee has ever been warned or otherwise disciplined, let alone discharged, for violating this rule. Respondent's position is that the rule and its enforce- ment are important to Respondent's business operations and the termination to Tingle for a violation was done free from union considerations. One must leave establish- ment of rules and the severity of punishment for a viola- tion of such rules to Respondent. Yet it appears to me to be inconsistent with Respondent's enforcement of the rule against Tingle that no action of any kind was taken against Laboski for assertedly giving Tingle permission to make the switch. Inasmuch as mechanics have ad- mitted authority in some circumstances to remove parts from damaged vehicles, it would seem proper that La- boski should have been reprimanded and/or informed that he was not to issue such permission in the future. The record is silent on these matters. Lastly, I find the discharge under all the above-de- scribed circumstances to be a severe punishment for an infraction which involved open conduct not designed to improperly benefit an employee or to convert Respond- ent's property to private uses. The apparent unreason- ableness of the punishment here carries an inference that the asserted reason for the discharge was pretext. In summary, I find that Respondent had knowledge of Tingle's union activities and his intention to vote for the Union. It had animus against the Union as demonstrated by the various threats, interrogations, and solicitations of grievances undertaken against employees, including Tingle. It made a specific threat to Tingle that union supporters could be fired for false reasons. I find that Re- spondent's agents, Foster and McAdams, whom I have discredited, supra, fired Tingle because of his union sym- pathies and in order to influence other employees to vote against the Union.9 Respondent's asserted reason for the discharge I find to be mere pretext. Having so found, I further find that Respondent, by firing Tingle for his union sympathies, violated Section 8(a)(3) and (1) of the Act. 9 The discharge of a union supporter just before an election is likely to reduce support for the Union. Respondent strongly opposed the Union and well knew the effect on others Tingle's discharge would have. ASSOCIATED MILK PRODUCERS 757 THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend it cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. Having found that Respondent withheld a wage in- crease at the Crowley facility in violation of Section 8(a)(3) and (1) of the Act, I shall order Respondent to make the Crowley facility employees whole by paying them the amount they would have received if the wage increase had been given them at the same time as other division employees. Having found that Respondent terminated the employ- ment of Charles Tingle because of his union activities and sympathies in violation of Section 8(a)(3) and (1) of the Act, I shall order that Respondent offer Tingle im- mediate and full reinstatement to his former position of employment, discharging if necessary any replacements hired to fill his position, or, if said position no longer exists, to a substantially equivalent position. I shall order that Respondent make Tingle whole for any loss of earn- ings he may have suffered by reason of Respondent's dis- crimination against him by payment of a sum equal to that which he normally would have earned from the date of the discrimination to the date Respondent offers him reinstatement, less his net earnings during that period. Backpay shall be computed in the manner de- scribed in F. W Woolworth Company, 90 NLRB 289 (1950). I shall order Respondent to pay interest on the above described sums in accordance with the policy of the Board set forth in Florida Steel Corporation, 231 NLRB 651 (1977), see also Olympic Medical Corporation, 250 NLRB 146 (1980), and see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). V. OBJECTIONS The Union's objections will be dealt with seriatim. Objection 1: The Union's first objection tracks essen- tially the 8(a)(1) allegations in the complaint occurring after the filing of the petition and also includes the dis- charge of Tingle. I have found certain violations of Sec- tion 8(a)(1) of the Act occurring after the petition was filed and have further found that Tingle was discharged because of his union activities in violation of Section 8(a)(3) and (1). Such violations also constitute objection- able conduct, Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962). Accordingly, I find that the Union's Objec- tion I has merit and should be sustained. Objection 2: The Union's second objection alleges as objectionable conduct the delayed wage increase dis- cussed supra. For the reasons there asserted, I found the delay in the wage increase violated Section 8(a)(3) and (1) of the Act. Such a violation also constitutes objec- tionable conduct. Accordingly, I find that the Union's Objection 2 has merit and should be sustained. Objection 3: The Union objects to 8 of 22 numbered paragraphs contained in Respondent's October 29, 1979, letter to employees which was received by employees on October 30, 1979. Even assuming that Respondent's letter contained misrepresentations which would other- wise require a new election, the Board's lead case in the area, Hollywood Ceramics Company, Inc.,10 also requires that in misrepresentation cases the injured party must have been denied an opportunity to effectively reply. In the instant case the Union mailed a letter to em- ployees on October 31, 1979, meeting the representations in Respondent's October 29, 1979, letter. It also held a union meeting on November 1, 1979, wherein the disput- ed representations were addressed. I find that time pro- vided the Union here was sufficient to reply to Respond- ent's alleged misrepresentations. The Board in Illinois Central Community Hospital, 224 NLRB 632 (1976), adopted the Administrative Law Judge's recommenda- tion that a union had sufficient time to reply to an em- ployer's January 10 letter before the January 14 election. In Montana Lumber Sales, Inc. (Delaney & Sons Division), 185 NLRB 46 (1970), the Board held a union was not precluded from replying to an employer's letter deliv- ered to employees the day before the election because the union held an employee meeting that same evening at a time when it was aware of the employer's letter. Inasmuch as I have found that, even if Respondent's October 31, 1979, letter contained misrepresentations, sufficient time for a reply existed, I shall not address the contents of Respondent's letter or the Union's specific objections thereto. This is so for, given time to reply, the alleged misrepresentations of Respondent cannot be found to have improperly affected the election results. Based on all the above, I shall recommend that the Union's Objection 3 be overruled. Recommendation that new election be directed: In view of my recommendation that the Union's Objections 1 and 2 have merit and should be sustained, I recommend that the results of the election held on November 2, 1979, be set aside and that Case 16-RC-8022 be remanded to the Regional Director for Region 16 for the purpose of con- ducting a new election at such time as he deems the cir- cumstances permit the free choice of bargaining repre- sentative. I further recommend, in light of the unfair labor prac- tices found supra, and my determination that Respond- ent's conduct was designed to and succeeded in interfer- ing with the employees' exercise of a free and reasoned choice in the November 2, 1979, election, that the Re- gional Director include in the notice of election to be issued the following paragraph consistent with the Board's decisions in The Lufkin Rule Company, 147 NLRB 341 (1964), and Bush Hog, Inc., 161 NLRB 1575 (1966): Notice To All Voters The election conducted on November 2, 1979, was set aside because the National Labor Relations Board found that certain conduct of the Employer interfered with employees' exercise of a free and reasoned choice. Therefore, a new election will be held in accordance with the terms of this notice of election. All eligible voters should understand that 10 140 NLRB 221 (1962); overruled in Shopping Kart Food Market. Inc., 228 NLRB 1311 (1977), but restored to vitality in General Knit of California. Inc.. 239 NLRB 619 (1978). ASSOCIATED MILK PRODUCERS 757 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit, and protects them in the exercise of this right, free from interference by any of the parties. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce 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 interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act and committed unfair labor prac- tices within the meaning of Section 8(a)(l) of the Act by: (a) On September 7, 12, and 15 interrogating employ- ees about their union activities. (b) On September 10 and 12 soliciting the grievances of employees and creating the impression said grievances would be resolved in order to discourage support for the Union. (c) On September 15 threatening employees with re- duction in wages, hours, and retirement benefits if the Union organized Respondent. (d) On September 15 threatening employees with dis- charge on a pretext if the Union organized Respondent. 4. Respondent discriminated against employees because of their union activities in violation of Section 8(a)(3) and (1) of the Act by: (a) From on or about October 7 to on or about No- vember 13 withholding a wage increase from employees at the Crowley facility. (b) On October 20 discharging employee Charles Tingle and at all times thereafter failing and refusing to offer him reinstatement. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. By the above conduct, as alleged by the Union in its objections, Respondent has prevented the holding of a fair election, and such conduct warrants setting aside the election conducted on November 2, 1979, in Case 16- RC-8022. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER" The Respondent, Associated Milk Producers, Inc., Crowley, Texas, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Interrogating employees concerning their union ac- tivities. I I 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. (b) Soliciting the grievances of employees and creating the impression said grievances would be solved in order to discourage support for Chauffeurs, Teamsters and Helpers Local 47, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (c) Threatening employees with reduction in wages, hours, and retirement benefits if the Union organized Re- spondent. (d) Threatening employees with discharge for a false reason if the Union organized Respondent. (e) Withholding wage increases from employees be- cause of their union activities. (f) Discharging employees because of their union ac- tivities and sympathies. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Pay to Crowley facility employees the wage in- crease paid to other divisional employees but withheld them from on or about October 7, 1979, to on or about November 13, 1979, with interest, in the manner set forth above in the section entitled "The Remedy." (b) Offer to Charles Tingle immediate and full rein- statement to his former position of employment discharg- ing, if necessary, any replacements hired to fill his posi- tion or, if said position no longer exists, offer him a sub- stantially equivalent position without loss of seniority or other benefits. (c) Make Charles Tingle whole for any loss of benefits he may have suffered by reason of Respondent's discrim- ination against him by payment of a sum equal to that which he normally would have earned from the date of the discrimination against him to the date Respondent offers him reinstatement less his net earnings during that period, with interest, in the manner set forth in the sec- tion entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords necessary to analyze and determine the amount of money due under the terms of this Order. (e) Post at its Crowley, Texas, facility copies of the at- tached notice marked "Appendix."1 2 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's au- thorized representative, shall be posted by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. II 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ASSOCIATED MILK PRODUCERS 759 IT IS FURTHER RECOMMENDED that the first and second of the Union's objections to the election held by the Board in Case 16-RC-8022 be sustained, and that the results of said election be set aside, and that said case be remanded to the Regional Director for Region 16 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bar- gaining representative and with a notice of election con- consistent with the findings herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and to obey its provisions. The National Labor Relations Act gives employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WIlll. NOT interrogate employees concerning their union activities. WE WILI. NOT solicit the grievances of employees and create the impression said grievances would be resolved in order to discourage support for Chauf- feurs, Teamsters and Helpers Local 47, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. WE WI.LL NOT threaten employees with reduction in wages, hours, and retirement benefits if Chauf- feurs, Teamsters and Helpers Local 47, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, organized our employees. WE WILL NOT withhold wage increases from em- ployees because of their union activities. WE WILL NOT discharge employees because of their union activities and sympathies. WE WILL NOT in any like or related manner vio- late the National Labor Relations Act. WE WILL pay to our Crowley, Texas, facility em- ployees the wage increase paid to other divisional employees but withheld from them from on or about October 7, 1979, to on or about November 13, 1979, with appropriate interest. WE WILL make Charles Tingle whole for any loss of benefits he may have suffered by reason of our discrimination against him by payment of a sum equal to that which he normally would have earned from the date of the discrimination against him to the date of our offer of reinstatement less his net earnings during that period, with appropriate inter- est. ASSOCIATED MIIK PRODUCERS, INC. ASSOCIATED MILK PRODUCERS 759