Reeves Southeastern Corporation

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reeves Southeastern Corporation and Teamsters, Chauffeurs and Helpers Local Union No. 79, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Gregory H. Flemming, and John P. Martin. Cases 12-CA-9000 (1-2), 12- CA-9272, 12-CA-9039-1, and 12-CA-9039-2 June 15, 1981 DECISION AND ORDER On December 5, 1980, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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 rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Reeves South- eastern Corporation, Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative las judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 Member Jenkins wsould compute the interest due on anly loss of earn- ings suffered by tlunter, Flemming, Martin. and Phillips by reason of Re- spondent's discrimination in accordalce with his partial dissent in OlyIm- pic Medical Corporaion, 250 NILRB 140 (190O) 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 sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT fire employees for engaging in union and concerted activities among them- 256 NLRB No. 90 selves and with other employees for their mutual aid and protection. WE WILL NOT fire employees who appear and give testimony in a National Labor Rela- tions Board hearing. WE WILL NOT unlawfully interrogate our employees about their union activities or senti- ments or the distribution of union business cards to them and other employees. WE WILL NOT threaten that employees will be discharged for distributing union business cards which contain the time and place of a union meeting. WE WILL NOT threaten employees that they will be discharged if it is found that they have union business cards in their possession and order employees to surrender such cards to our supervisors. WE WILL NOT threaten an employee with discharge unless the employee allows supervi- sors to examine his wallet to see if he possesses any union business cards. WE WILL NOT require an employee to give a sample of his handwriting to a supervisor so that the supervisor can compare it with the handwriting on a union business card. WE WILL NOT instruct employees to report to supervisors the identity of employees dis- tributing union business cards. WE WILL NOT threaten to discharge an em- ployee if the employee accepts union literature which is being distributed at our plant gate. WE WILL NOT stand beside union agents at the plant gate who are distributing union lit- erature to observe and inhibit employees from receiving such literature. WE WILL NOT warn employees that we will close and move our plant before operating with a union. WE WILL NOT surveil the premises of the union hall at the time of a scheduled meeting for our employees. WE WILL NOT in the same or any other manner interfere with, restrain, or coerce em- ployees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WII.L offer Curbie Hunter, Gregory Flemming, John Martin, and Anthony Phillips immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them REEVES SOUTHEASTERN CORPORATION 575 a sum equal to what he would have earned, less interim earnings, plus interest. Our employees are free to become or remain members of Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. REEVES SOUTHEASTERN CORPORA- TION DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Team- sters, Chauffeurs and Helpers Local Union No. 79, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, the Union, or Charging Party Union, filed the charges in Case 12-CA-9000(1-2) on February I and 8, 1980,1 against Reeves Southeastern Corporation, herein called Respondent or the Company, alleging that the Company had violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amend- ed, by terminating Curbie Hunter on January 31, and en- gaged in surveillance of employees' union activities. Gregory Flemming filed the charge in Case 12-CA- 9039-1 on February 1, alleging that Respondent had vio- lated Section 8(a)(1) and (3) of the Act by reducing his work hours and changing his pay rate because of his union activity. John P. Martin filed the charge in Case 12-CA-9039-2 on February 25, alleging that Respondent had violated Section 8(a)(3) and (1) of the Act by terminating him on February 20. The Regional Director for Region 12 issued an order consolidating cases and a consolidated complaint and notice of hearing on March 17, alleging that Respondent Vice Presidents Junior White and Leon Ponte and Fore- man Don Westra and Traffic Controller Edward Murphy had engaged in numerous violations of Section 8(a)(1) and that Respondent had terminated Hunter, Flemming, and Martin in violation of Section 8(a)(3) and (1) of the Act. Respondent's timely answer admitted the service and commerce allegations, the status of the Union, and the supervisory status of the individuals alleged to have com- mitted 8(a)(1) and (3) violations, and of four other named supervisors, but denied that it had violated the Act in any manner. Hearing of the consolidated cases took place in Tampa, Florida, on June 18 and 19, and among the indi- viduals testifying on behalf of the General Counsel was Respondent employee Anthony Phillips. The Union filed a charge in Case 12-CA-9272 on July 17 and amended it on August 4 to allege that Respondent had terminated Phillips on or about July 15 in violation of Section 8(a)(l), (3), and (4) of the Act. The Regional Director I Unless specifically stated otherwise. the esents herein occurred during 1980 issued a complaint on August 13, alleging Phillips' termi- nation as violating Section 8(a)(3), (4), and (1) of the Act, and Respondent filed a timely answer on August 18 denying that it had violated the Act in any manner. On August 20, counsel for the General Counsel made a motion to me to consolidate Case 12-CA-9272 with the cases previously heard and to reopen the record for purposes of taking evidence on the consolidated com- plaint. Respondent filed its opposition to the General Counsel's motion on September 2, and on September 9 I granted the motion to reopen the record and consolidate the cases. Respondent filed a request for special permis- sion to appeal from my ruling, which was denied by the Board. The consolidated matter was heard in Tampa, Florida, on September 24, 1980. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearings held on June 18 and 19 and Sep- tember 24 and the General Counsel and Respondent filed briefs following both hearings. In considering the evidence in this case, I resolved credibility issues against several of Respondent's wit- nesses, noting that some of Respondent's testimony con- tradicted stipulated facts and other matters of record. In sum, I have found that Respondent violated the Act as alleged in the consolidated Complaints. On the entire record in this case, including the exhibits and the testimony, and on my evaluation of the reliability of the witnesses based on their demeanor, the evidence and lack of it in certain instances, and noting various contradictions, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is a Florida corporation with its office and plants in Tampa, Florida, where it is engaged in manu- facturing fencing and related products. During the past year Respondent purchased and received at its Tampa plant, directly from points outside the State of Florida, supplies and materials valued in excess of $50,000 and during the same period sold and shipped, directly from its plant to points outside Florida, finished products valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Fac.ts Respondent has two plants approximately 100-200 yards apart located in Tampa, Florida. In one of the plants it galvanizes fencing material and other products and some products for various customers. In the other plant it receives and stockpiles supplies and materials, prepares and manufactures its products, and operates a garage for its forklift trucks and other vehicles. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its operations Respondent maintains a large fleet of forklift trucks and has some four or five mechanics and mechanic helpers engaged in routine maintenance of these vehicles and, on occasion when it has in its employ mechanics with sufficient ability, performs more than routine maintenance on these vehicles and on trailers and some other company vehicles. It also has at least one flatbed truck. With the exception of some local deliveries within a 200-mile radius, it ships its product by tractor- trailers, with the tractors being leased from and main- tained by Ryder Corporation. Leon Ponte is the senior vice president of the Compa- ny, and Junior White is the vice president in charge of production. Maintenance Plant Superintendent Manuel Copaz reports to White, and Foreman Judge Cochran re- ports to Copaz. Don Westra is the mechanic foreman while Bill Scott is a maintenance foreman. Edward Murphy is the traffic controller who sets up the sched- ules for trips and assigns drivers who deliver Respond- ent's products or pick up supplies. B. Curbie Hunter Curbie Hunter testified that he had worked as a labor- er for Respondent for approximately 10 years. On Monday, January 28, at lunchtime, Hunter went to the Teamsters office and spoke to Teamsters Representative Dennis Fernandez. Arrangements were made to hold a meeting for Respondent's employees at the Teamsters headquarters on Sunday, February 3, at 3 p.m. Fernan- dez gave Hunter a stack of his business cards to distrib- ute to employees so they would know where the union meeting would be held. Hunter returned to the plant and, using a red ink pen, wrote "3PM Sun." on a number of the cards. In the ensuing days he gave some of the cards to Gregory Flemming and others to Gerard (Gerry) Reinard and to a welder named Chico to pass on to other employees. Reinard, who was a maintenance man under Supervi- sor Bill Scott, gave one of the cards to John Martin and testified that Foreman Don Westra saw him hand the card to Martin. Approximately 1 hour later, Reinard was called to Vice President White's office along with Superintendent Manuel Copaz. White told Reinard he had heard Rein- ard was the man giving out union cards. Reinard said that he was not giving out union cards but finally Rein- ard admitted giving out two business cards. White said, "We're not going to have no damn union in here. If you're not the one giving out cards, who is giving out cards?" Reinard said he would tell Copaz but he would not tell White. White told Reinard he was Reinard's boss and threw one of Fernandez' business cards on the table in front of him. Reinard admitted that Curbie Hunter gave him the card. White told Reinard to go back to work. Hunter was then called to Foreman Bill Scott's office where Scott, Judge Cochran, and White met him. White asked why Hunter was giving out union cards, and Hunter denied it. White said he had seven or eight wit- nesses that Hunter had done so and that the cards were in Hunter's wallet. White asked if he or Judge Cochran could look in Hunter's wallet and Hunter refused. White left the room and came back in a few minutes with Gerry Reinard and Manuel Copaz. White and Copaz said that Reinard was the instigator in giving out union cards, and Reinard said he was not the instigator, that Hunter had given him the union business cards. Hunter again denied giving the cards to Reinard. Copaz and Reinard left the office. White said he had no choice but to see Hunter's wallet. Hunter refused, saying he had personal things in it. White said Hunter had to show it to him or Cochran, and Hunter refused. White told Hunter to write "3 p.m. Sunday" on a piece of paper and Hunter did so. White compared the writing sample to the busi- ness card and said, although he was not a handwriting expert, it was Hunter's writing and Hunter was the only one using a red ink pen. Again White demanded that Hunter show his wallet to either White or Judge Coch- ran, or he could pick up his timecard. White told Coch- ran to get Hunter's timecard, and Hunter relented and said he would show the wallet to Cochran. White said, "Yes, you have to save your job, don't you?" Hunter took out his wallet and placed his thumb over the part of the wallet where the cards were and showed Cochran the other section of the wallet. Cochran told White he did not see anything but money in the wallet. As they left the office, White said that if Hunter saw anybody passing out cards to tell him about it and that Hunter would not be writing on cards. White told Hunter to return to work but to see him the next morning before punching in. Hunter worked about 30 minutes before taking weigh bills to the office. White and Copaz were there, and Hunter told White he had never passed out union cards. Hunter saw White leave the plant in his car. Around 15 minutes later, Hunter had to go back to the office and White returned and said that Hunter had lied to him, that two truckdrivers told him Hunter had given them cards. White said, "You don't work here any more, you're fired. Pick up your things in the morning." Hunter picked up his checks and vacation check the fol- lowing day, and that was the last contact he had with Respondent. Reinard corroborated Hunter's account of Reinard's second visit to the office when he named Hunter as the one who gave him Fernandez' business cards. White admitted questioning Reinard and said that Reinard named Hunter as the one giving out the Fernan- dez business cards. During the hearing when objections were raised as to whether Respondent was enforcing a no-solicitation rule, Respondent's counsel said that the Company had a no- solicitation rule that prevented all solicitation. Respond- ent was requested to produce the rule at that time, but did not do so then or thereafter, although there was some indication that a no-solicitation rule was contained in some posted company rules. Some of the General Counsel's witnesses testified they did not know of any no-solicitation rule and that solicita- tion for various things went on in the plant, including gifts for the sick, flowers for the funerals, and in one case a petition to the Florida Public Service Commission regarding hearings on public utilities. REEVES SOUTHEASTERN CORPORATION 577 Distributing Fernandez' business cards to employees would not, under ordinary Board rules, be considered equivalent to solicitation for signing a union authoriza- tion card. Here, Respondent has not shown a no-solicita- tion rule, and the evidence shows some solicitations being allowed by supervision. I find that the actions of Hunter and Reinard, in giving Fernandez' business cards to others employees, were not solicitation. Respondent reacted solely to the concept of something being done for a union which amounted to little more than conversation. Respondent further defends its termination of Hunter by stating that Hunter was a supervisor. Judge Cochran, who was termed a plant superintendent, stated he was present with White when White explained Hunter's duties to him concerning receiving incoming black steel. According to Cochran, White said it was his job to stop the steel if there was a problem with it and to come and get Cochran. Cochran made other statements that there was a foreman in each of the departments and that Hunter had a man to assist him but he was rather vague concerning what supervisory duties, if any, Hunter had. White testified that Hunter was carried on the compa- ny charts as a supervisor. White was specifically contra- dicted by the Company's January 2, 1980, document en- titled "New Shifts and Job Assignments" showing that Hunter was an employee and not a foreman. On that same document Judge Cochran was listed as a general foreman and there were no foremen for departments, in- cluding the yard, the bolts, the scale, or the inspection and CU units. In the Excelsior list prepared by Respond- ent in March for the election scheduled in April, the person who replaced Hunter in his job, Steve McCor- mick, was listed as an employee and not as a foreman. However, a later document prepared by the Company on May 16, 2 months after the complaint issued and a month before the first hearing in this consolidated case, showed foremen in all of the yard departments and listed McCormick as the foreman in the receiving department. Respondent's attempt to portray Hunter as a foreman failed in another area. It had been traditional for foremen to wear yellow hardhats and regular employees to wear white hats. Hunter never wore anything but a white hat, and his successor, McCormick, never wore anything but a white hat until shortly before the hearing in this matter, apparently about the time that Respondent put out its new assignments of foremen in May. Hunter had been with Respondent about 10 years and was experienced in parts of Respondent's operations. On occasions, someone assisted Hunter in receiving black steel and they shared the work, with one doing the pa- perwork and the other moving the steel and reversing the procedure on the next occasion. At the most, Hunter was a senior employee with more knowledge and skill than others who did the same work and he might be considered a leadman, but certainly he had no supervi- sory authority and used no independent judgment in a supervisory sense. On the basis of all the testimony and evidence, I con- clude and find that Curbie Hunter was discriminatorily discharged in violation of Section 8(a)(1) and (3) of the Act. I further find and conclude that Respondent, by Junior White, questioned Hunter and Reinard about their union activities, threatened Hunter with discharge unless he showed his wallet and his personal possessions to White or Cochran, told Hunter to report anybody he saw passing out union cards, and demanded that Hunter write "3 p.m. Sunday" on a piece of paper so that White could compare the sample with the Fernandez business card. All of these activities, actions, and threats, I find, violated Section 8(a)(l) of the Act. C. Events Between January 31 and February 14 On January 31, Traffic Controller Murphy, a supervi- sor with Respondent, asked Gregory Flemming if he had signed anything. When Flemming replied no, Murphy asked how he felt about the Union. Flemming gave a dis- sembling answer. Murphy stated that he never discussed the Union with Flemming. I credit Flemming over Murphy. As will be seen later, Murphy's testimony in other areas was not credible. I find that the questioning of Flemming by Murphy violates Section 8(a)(l) of the Act. On either January 31 or February 1, Don Westra, the mechanic foreman, called a meeting of the employees in that section. According to John Martin, Westra said that they knew the Union was trying to get in the plant and that Junior White was not going to let it come in, that he was going to fight it and, before he would pay higher wages and have a union, Respondent would close the plant and move to another State. Westra told the em- ployees to hand in any union literature they had and, if they were caught with it, they would be fired immedi- ately. When Martin and others protested that this was unfair and not allowed by law, Westra replied that they could be fired for any little thing so it would be better not to be caught with the union literature. Employee DiSalvo corroborated Martin, stating that Westra said that they had heard of the union activities and White had given the word that if the employees had union cards they had better give them up, that if they were caught with them they would be terminated. When Martin objected that what was in his wallet was his per- sonal business, DiSalvo agreed. Westra then said they could be fired for any little reason and it would be best not to be caught with union cards. Anthony Phillips, who was a tire repairman in the garage, testified that in the meeting Westra said that any- body engaged in union activities would be fired and that they had better give up their union cards or they would be fired on the spot. When Martin said it was against the law to threaten the men about getting involved in union activities, DiSalvo agreed with Martin. Westra did not admit the 8(a)(l) nature of his remarks but did admit that he called a meeting about that time concerning union activity and told the men he felt it was company policy not to have solicitation and it would be best not to be caught showing or passing cards around. He did not know of the Company having objections to any other type of solicitation. I credit Martin, DiSalvo, and Phillips and find that Westra threatened the discharge of employees found to possess union cards and told employees to surrender 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such cards, Westra threatened that Respondent would close the plant and move it to another State if the Union came in, and that these remarks violated Section 8(a)(1) of the Act. On either February 7 or 8, Union Representative Fer- nandez stood near the plant gate on public property and distributed handbills to employees going in and out of the plant. Within a few minutes Vice Presidents Ponte and White went to the area adjacent to Fernandez and for part of the time Vice President Ponte stood approxi- mately 3 feet from Fernandez, with White a little farther away near the guard shack. Fernandez testified that he saw Ponte and White take some literature Fernandez had given to employees away from those employees. Phillips testified that Hunter accompanied Fernandez in distributing literature that day and Westra said, "What do you think about the unions-," and he replied noth- ing. Westra said, "See them two guys out there. If you run them over, I'll guarantee you a raise." Phillips re- plied, "Man, you're crazy, I'd go to jail about that." Westra said, "I was just kidding you," but added that, if Phillips took one of the papers from them, he would guarantee that Phillips would be fired right then. Fernandez testified that while at the gate the police came and spoke to Ponte and White and left, and then Ponte came over and stood right next to him for about 15 minutes. Fernandez said he got in his car with Hunter and they drove across the road to the other plant and were followed by Ponte and White. When Fernandez got out to hand out literature, Ponte came over and stood beside him again for some 15 to 20 minutes. There was some discussion between them as to Fernandez' legal rights to be there, with Fernandez pointing out that he was on public property. Westra said he did not make the statements which An- thony Phillips attributed to him concerning the men at the gate or about taking leaflets. Westra also denied that he had told anyone they could be fired for union activi- ties but did not specifically deny the testimony concern- ing his telling employees to turn in the union cards. Wes- tra's statement about running over Hunter and Fernan- dez was probably said in a kidding way but it demon- strated Westra's feelings toward unionization. I credit Phillips that Westra made those remarks and told Phillips that he would be discharged if he took a handbill from Fernandez or Hunter. Accordingly, I find that Westra's threat that employees who took union literature would be summarily discharged violated Section 8(a)(1) of the Act. White did not deny that Ponte stood next to Fernan- dez. In fact, most of White's testimony concerning hand- billing related to other times when a number of hand- billers were present. Ponte did not deny standing next to Fernandez but merely testified that he was out there about 20 minutes to see what was happening. The actions of Ponte in standing next to Hunter and Fernandez and White's standing close by were meant to intimidate employees and inhibit and restrict their right to receive union handbills; they amounted to overt sur- veillance of union activities. I find that these actions of Ponte and White violated Section 8(a)(1) of the Act. Union meetings were usually held on Sunday. As John Martin was driving his car approaching the driveway to the Teamsters hall on Sunday, he saw White in his car with the car partially blocking the driveway. Martin drove a short distance away and observed White con- tinuing to sit in his parked car. Fernandez testified that he saw Junior White in his car parked in the union driveway. He also testified that he saw a company guard parked down the street in a Pinto automobile and he spoke to the guard who said that he was on an assignment. He later saw that same guard on duty at Respondent's gate. White, in response to this tes- timony, denied being on the union parking lot, which is not a denial of being seen by two people in the driveway and is no explanation of what two witnesses saw. I credit Martin and Fernandez and find that White was engaged in an attempt to surveil the Teamsters hall to determine which of his employees were attending the union meeting held there on Sunday, February 10. John Martin testified that, I to 2 weeks after the Janu- ary 31-February 1 meeting held by Westra, he was in the parts room eating lunch when Westra asked if he had heard anything about the Union and how many had signed up. Martin said he had not heard but that he had signed a union card. Westra testified he had not questioned anyone as to who had signed union cards. I credit Martin. Westra ap- peared to try to talk away from words or phrases that might violate the Act. I conclude and find that this ques- tioning by Westra was coercive and violated Section 8(a)(l) of the Act. Around February 14, Fernandez and Hunter came back to distribute more literature at the plant gate and again Ponte and White went out, with Ponte again stand- ing close beside Hunter and Fernandez while they were distributing literature. I conclude and find again that Ponte and White's ac- tions were a deliberate attempt to inhibit and intimidate the employees and restrict them from their right to re- ceive union literature and, as such, violated Section 8(a)(1) of the Act. D. Gregory Flemming Gregory Flemming started with Respondent as a la- borer in April 1978. After working about 2 weeks, he started driving trucks; his supervisor was dispatcher Edward Murphy. Flemming drove a straight flatbed truck, No. 99, on trips within a 200-mile radius of Re- spondent's Tampa plant. He would also use the truck to drive products to the other plant to be galvanized and bring them back. Flemming was the only one assigned to this truck while he was employed. When he was not so employed, Flemming worked with the yard crew around the plant. He worked from 7 a.m. to 4:30 p.m. Monday through Thursday and from 7 a.m. to 3:30 p.m. on Friday and was paid on a straight hourly basis. At the end of January or the beginning of February, Flemming received some of Fernandez' business cards at lunchtime from Hunter and passed them out to other em- REEVES SOUTHEASTERN CORPORATION 579 ployees then and after work. His conversation with Su- pervisor Murphy on January 31 is referred to above and is found to be 8(a)(1) interrogation by Murphy. On February 14 when Fernandez and Hunter were passing out literature at the gate, Flemming went through the gate while Ponte and White were there; he waved to Fernandez and took literature from him. On the next day, February 15, Flemming's supervisor, Murphy, told him his method of pay was being changed from an hourly rate to a 10-cent-per-mile rate. Flemming asked the reason for the change and Murphy said Flem- ming had asked White to be put on that pay basis. Flem- ming denied that he had ever requested any such change and said he did not understand the reason for it. Murphy told him that from then on he was to call him or, if he was not there, to check with the guard to see if there was any work for him and not to come in unless there was. Flemming checked on Sunday and was told there was no work for him on Monday; he decided to go to the Union's office on Monday and tell Fernandez about it. They wondered how they could prove that Flemming had called in or was available for work and decided to send a telegram advising the Company that Flemming was available for work. On Monday evening Flemming was called to work on Tuesday. He moved material from one plant to the other for about an hour and then was sent by White with several others to the house of the Company's president to clean the yard. When they re- turned to the plant about 3 p.m., he moved one more load and was told by Supervisor Octavio to return to work the next day. While moving another load across the street, Flemming was stopped by Ponte and White. Ponte had a telegram in his hand and asked Flemming what he was trying to prove by sending a telegram from the union hall and asked if he hated the Company. Flem- ming replied that he did not, that he liked the people that worked there. Ponte asked how he felt about the Company and Flemming said only no comment. Ponte then pushed the telegram towards Flemming's face and said, "I want to tell you something. You tell the Team- sters to get you a job because you won't be working here any more." White said that he was the one who had called Flemming to come in that day to work. Flemming asked why he had not been called to come to work the previous day and White said he did not have anything for him to do. Flemming said that when there was noth- ing to do previously he worked in the yard. That ended the conversation. After completing his work, Flemming went back to the office where another employee gave him a message from Octavio not to come in the following day, that they had canceled the load. Flemming called the next day and got no work; he said he called in every day for about a month and on each occasion was told the same thing, that they did not have anything for him to do. He has not been called back to work since that time. Edward Murphy testified that, about 2 weeks prior to Flemming's ceasing work, Flemming had talked to him several times about being paid by the trip on a mileage basis and locally by the hour. He said that after he had discussed it with Junior White, he told Flemming on a Friday that he would be putting him on the flat rate and that they would start the next week. Murphy was absent the following Monday through Wednesday; he said he got a call from Flemming on Thursday and Friday and thereafter Flemming would call in one day and miss call- ing a day and that, when Flemming quit calling in, he assumed Flemming had quit or got something else. He said that the truck was laid up for a while and that one of the yard employees would go across the street to pick up the loads. Murphy said they finally hired Billy Joe Waddill to run the truck and that Waddill was still em- ployed there. Murphy also stated that he told Flemming to call him, not the guard. This method, according to Murphy, would have differed from the method by which the other drivers called in to go to work. Murphy did not explain how Flemming could have called him for work when Murphy was absent for a period such as he was on the Monday through Wednesday following the change of Flemming's pay rate. Murphy then agreed that Flem- ming could have called the guard shack but stated there really was not enough work to bring him in. Waddill who replaced Flemming was paid by the hour. Accord- ing to Murphy, Waddill makes a trip and then goes home and he approximated that Waddill only worked 30 to 45 hours per week. Murphy testified to Waddill's hours following a stipu- lation by the parties that during Waddill's first partial week he worked 26 hours, and that for the 3 or 4 weeks after that Waddill worked 50 hours per week. Murphy was asked what accounted for the drop in work and he said that the Company doubled up some loads and sent them by tractor-trailer and thus it cut down its expenses during that period when it was not running the flatbed truck. Murphy failed to explain that, if it was cutting expenses then, why the Company hired Waddill and put him back on the flatbed truck to contin- ue running the loads within the 200-mile radius. White testified that he and Ponte talked to Flemming after they got the union mailgram; he asked if Flemming sent the telegram and Flemming said yes. He said Ponte asked why Flemming had sent it from the Teamsters hall and Flemming said he was a member. White did not deny that Ponte told Flemming he would not be work- ing there any more. In regard to the pay rate, White tes- tified that Muphy asked him to approve putting Flem- ming on the trip rate and that he did so. Ponte testified that Murphy mentioned to him that he was considering putting Flemming on the same pay basis as other employees and that he approved. Ponte said he asked Flemming why he had sent a mailgram regarding work when he was already at work. He said Flemming replied that he was a member of the Union and that he said, "And I told him that if that's the way he felt, that he should talk to the Teamsters Union." Ponte's statement of what he said appears to be a modification of what Flemming testified Ponte said about seeing the Union about getting work since he would not be working there any more. I credit Flemming's testimony. Ponte's version of the event makes no sense in any other way. White did not 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deny that Ponte had made the statement attributed to Ponte by Flemming although he testified to other things that were said. I credit Flemming's testimony throughout this matter since I find that Murphy was denigrating the amount of work available and the amount Waddill worked despite clear records to the contrary. It is clear that the volume of work done by Flemming continued, but Respondent found another way to do it to discourage Flemming and not to give him any work. From Murphy's explanation, it is clear that Respondent used a tractor-trailer with a doubled load to make the trips and rival the expenses of having loads sent out by the smaller flatbed truck. The timing of Flemming's friendly wave to Fernandez and his pay rate being changed and this new method of work the following day make it all too clear what Re- spondent was doing. Respondent attempted to make it appear that Flemming quit work and did not come back by Flemming's not continuing to call in for a period of a month or better. Respondent's maneuver was transparent enough to Flemming or any other observer, and the Board would not require useless action by Flemming in such a case. The work did not magically reappear a month later but continued to be there in the interim and was done by others while Respondent eased Flemming from its employ by this subterfuge. Ponte's statement that Flemming should get the Union to get him a job be- cause he would not be working there any more tells the story. I conclude and find that Ponte's threats to Flemming are violative of Section 8(a)(1) of the Act. There is a complaint allegation that on February 19 Junior White questioned an employee about the employ- ee's membership, apparently referring to Flemming, but I find no testimony to support this allegation and therefore will dismiss paragraph 16 of the complaint. I conclude and find that Respondent violated Section 8(a)(1) and (3) of the Act by its termination of Flem- ming, which I find took place on February 19, 1980, and that Flemming was not thereafter recalled or rehired. Ponte's statement was acted on by Respondent in cancel- ing the work scheduled for Flemming the next day and Flemming at that point was effectively terminated by Respondent, in fact if not in words. E. John Martin John Martin began work with Respondent on April 20, 1977, as a mechanic and worked principally on fork- lift trucks repairing transmissions and rebuilding one or more engines as time permitted. There is no question but, at the time of Martin's termination, he was the most skilled and most senior mechanic employed by Respond- ent. In January, he received a raise and an evaluation by Westra which ranged between good and excellent. On February 20, Martin was asked by Westra to go to the office where Maintenance Foreman Copaz said, "Here are your two checks. We don't need you any more." Martin, startled, asked why and Copaz said that for any information Martin should see Vice President Junior White. Martin left the office and started getting his tools together. Westra told him he had no idea that Martin was to be discharged when he went into the office with him. Westra corroborated Martin's testimony of his termination, agreeing that Martin was not given a reason although demanding one. Westra also acknowl- edged that Martin was the most skilled and most senior mechanic in the shop and did the most complicated work done in the shop. Martin then went to Junior White and asked why he had been terminated. White gave no reasons except that they did not need him any more. After further protests by Martin, White said something about cutting back on the work force and Martin replied that White knew that was a lie, that the trainees could not work on industrial transmissions and the other work that he was doing. During his cross-examination, Martin denied that he had ever threatened anyone concerning the Union and particularly denied threatening an individual named Ed Garland. White testified that Manuel Copaz fired Martin on his instructions because an older employee named Edward Garland was upset because he had been threatened by Martin. White admitted that he made no investigation of the threat insofar as Martin was concerned. According to White, the threat was that, if Garland did not sign a union card, the Union would fire Garland. Garland testified that he had been with the Company 2 years and 8 months and knew John Martin from the maintenance department. He said he had talked to Martin on several occasions and once Martin asked if he belonged to the Union and he replied no. Martin then said they were going to vote the Union in and anybody that did not belong to it would be fired. Garland said he talked to his foreman, Reynolds, about this and Reynolds knew nothing about it; they both then went to see White who told them the Union could fire nobody. During cross-examination, Garland changed his testimony a bit and said that Martin asked if he had signed a union card. In rebuttal, Martin was recalled; he testified that he knew Garland and talked to him on occasions but testi- fied that he did not recall any discussion with Garland regarding the Union; he said that he had never had union authorization cards in the plant and did not offer union authorization cards to any employee or ask them to join the Union. He specifically denied the statements Garland made, saying that he knew a union could never fire an employee. I am inclined to discredit Garland and White since, if this statement had been made by Martin and Respondent really believed this gave it sufficient reason to discharge Martin, there was no reason for White or Copaz not to have said so to Martin or not to have investigated such event by asking Martin about it. However, Respondent did nothing, and this alleged incident was never men- tioned at the time of Martin's discharge. It appears that this is an ex post facto attempt at formu- lating a reason for discharging Martin. Even if the events occurred as Garland said, it would not have been a threat of any moment by an employee to another em- ployee. Florida is a "right-to-work State," and Martin and others apparently knew that and therefore this so- called threat had nothing behind it and this was well known to employees. REEVES SOUTHEASTERN CORPORATION 581 The discharge of Martin was violative of the Act since Martin was fired because he was a union member who stated so, and Respondent was ridding itself of union members whenever an opportunity presented it with what it felt was a sufficient covering reason. This dis- charge and the discharge of Phillips, infra, were graphic demonstrations of Westra's threats to employees to dis- charge them for union activities or find another reason for discharging them. I conclude and find that Respondent violated Section 8(a)(l) and (3) of the Act by its termination of Martin on Febuary 20, 1980. F. Anthony Phillips Anthony Phillips testified for the General Counsel on June 18 in the first hearing in this case. As set forth above, I credit Phillips' testimony concerning the state- ments made to him and the other statements made to the group of employees. Phillips started as a laborer with Respondent on Janu- ary 8, 1979, and in July 1979 was made a tirechanger in the mechanical department. Respondent's brief errone- ously states that on July 20, 1979, Phillips was promoted to be a mechanic in the maintenance department and was in that position until his discharge. Phillips worked on changing and repairing tires and inspecting the lights on trailers from July 1979 until about a week before his dis- charge. Martin, among others, noted at the hearing in June that Phillips was a tirechanger. When Phillips testi- fied in June, he said he worked in vehicle maintenance as a tire mechanic which means that he was servicing the trailers and changing and repairing tires. About 2 weeks after the hearing, on July 2, Phillips was told by Westra that he was being made a mechanic and would be trained on the job. Phillips objected, saying that he had not had any training and would prefer to remain as a tireman but he was changed anyway. Fol- lowing this change, Phillips worked for a short time with DiSalvo and said that about all he did was to hand DiS- alvo requested tools. After a new man was hired as a tir- echanger and remained only a few days, Phillips asked Westra whether he could go back to being a tireman. Westra refused and put mechanic helper Ramos on the tirechanging job and said he wanted Phillips to stay as a mechanic. Phillips worked on one other trailer prior to July 8 when trailer 16 was brought into the shop with a broken hub and needing new tires, brake shoes, new bearings, race, and a brake drum. Westra said that Ramos, the tire- man, had put the tires on backwards and had not insert- ed a spacer and that had caused the damage. Ramos was not terminated, and there is no testimony to show whether he was even reprimanded. Phillips was assigned to remove and replace the parts. He removed the parts on Wednesday and put the brake shoes, drum and bear- ings, race, and a new hub on the trailer by the end of the day. He had not completed the work since he had not put oil in the hub or greased it and the trailer needed two new tires as well as the oil cap on the wheel hub and the brakes adjusted. When Phillips reported for work on Thursday, Phillips was told by Westra to replace an axle in a forklift truck and to come back to the trailer later to finish it, that the other job was more important. Phillips worked on the forklift truck on Thursday. On Friday, Phillips was told to put spark plugs and points in a Toyota lift truck rather than finish the trailer which was still in the shop. Where Phillips worked on the Toyota was on the other side of the shop with a fence, a small building, and sup- plies between them so he could not see the trailer. No one denied that Phillips could not see the trailer from where he was working on the lift truck. After complet- ing work on the lift truck, he found that the trailer had been pulled out of the shop but did not know who, if anyone, had completed the trailer and replaced the tires. Phillips asked Westra on Friday if he could take off Monday for some personal business and was told it was okay. On Monday, he called Westra and said his business was not finished and Westra told him not to worry about it, that he would see him on Tuesday. When he reported for work on Tuesday, Phillips did not find his timecard in the rack and Westra told him to go to the personnel office. In the personnel office he was told that Westra could explain why the card was missing, and Westra was called. Westra and Copaz came to the office and Westra told Phillips they were letting him go, that he had messed up and caused $1,000 worth of damage to a trail- er because he had not put oil in the wheel hub. Westra testified that the trailer came into the shop on Wednesday and that Phillips worked on it all day Thurs- day, although it was only a 2-hour job to replace the hub. Westra said he asked Phillips at the end of the day if he had greased the trailer and Phillips said he had not. Westra said Phillips called in sick on Monday and was out that day; on Tuesday he discharged Phillips for not putting oil in the bearing cup which had resulted in melt- ing the bearings which damaged the axle and caused ex- tensive damage. Westra said he had to burn the bearings off the axle and send it to a machine shop to be turned down and that it needed a new hub, bearings, and race and new brake shoes. In his estimate of $1,000 damage, Westra included both replaced hubs and the brake shoes for both sides. In comparing the amount of damage caused by Ramos with that allegedly caused by Phillips, there would appear to be little difference since the cost of the new tires would appear to equal the cost of having the axle turned, while the other items replaced were nearly the same. Phillips stated that, after he completed any work, Westra would usually check to see that it was done properly and that Westra checked the work of most em- ployees. When asked why he did not try to find out who, if anyone, had completed the work on the trailer, Phillips said that a foreman usually checks the work and he presumed that Westra would have checked the trailer before allowing it to be removed from the shop. Re- spondent offered no bills or other record to show that work other than what Phillips testified to was done or that the work that he said he did was not done. Presum- ably, Respondent should have such records available. Since Phillips had been a tirechanger until a week or 10 days prior to his termination, it seems extremely odd 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the work he had done would not have been closely checked by a supervisor. I credit Phillips' testimony as to the amount of work and the day he worked on the trailer. Westra's testimony was rather curt and, if Phillips was wrong, Respondent did not attempt to prove it. Westra did not testify to making any inspection of Westra's work or to checking the trailer before releasing it. Respondent produced no testimony to show that the work remaining to be done, as Phillips testified, was not in the state in which Phillips testified. It should have been simple for Respondent to produce testimony from Westra or witnesses in the area that the trailer had been seemingly completed by Phil- lips. It appears that Westra did not act in a reasonable manner in not checking the trailer before releasing it, knowing that Phillips had not worked on it for 1-1/2 to 2 days and knowing that somebody had to complete the work since Phillips had told him that the work was not completed. The situation with Phillips appears somewhat akin to that of Flemming, in that Respondent made changes against the employee's wishes and then found a way to terminate the employee. Here, Respondent put Phillips in a job that was beyond his depths in knowledge and did not provide him with any training in the apparent hope that Phillips would give Respondent some reason to dis- charge him. It is not suggested that Respondent purpose- ly overlooked checking the work that Phillips did on the trailer, but it did seize on it as a reason to terminate him. The amount of damage to the trailer would be about the same amount as the damage caused by Ramos. When it is considered that Phillips testified at the first hearing and specifically accused Westra of several violations of Sec- tion 8(a)(l), including violations to which no other person testified, it is apparent Respondent and perhaps Westra had reason to seek Phillips' termination. Phillips testified that his relationship with Copaz had been friend- ly prior to his testimony but that, after his testimony, Copaz refused to talk to him and ignored him. From the credited testimony, it is clear that Respond- ent blamed Phillips for something that was not Phillips' fault and that the trailer had not been sufficiently checked or completed and that such fault would more clearly fall to supervision in this instance rather than an employee with I week's experience. Respondent had great animus against the Union and towards Phillips for the testimony he gave against Respondent. I conclude and find that Respondent terminated Phillips in violation of Section 8(a)(3), (4), and (1) of the Act. II1. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II and therein found to constitute unfair labor practices in viola- tion of Section 8(a)(1), (3), and (4) of the Act, occurring in connection with Respondent's business operations as set forth in section I, have a close, intimate, and substan- tial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged Curbie Hunter on January 31, Gregory Flem- ming on February 19, John P. Martin on February 20, and Anthony Phillips on July 15, 1980, I recommend that Respondent offer Hunter, Flemming, Martin, and Phillips full reinstatement to their former positions or, if such positions have been abolished, then to any substan- tially similar position, without prejudice to their seniority or other rights and privileges, and that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's discriminatory actions by pay- ment to them of a sum equal to that which each would have normally received as wages from the dates or their termination, until Respondent offers them reinstatement, less any net earnings for the interim. Flemming is to be reinstated to his former job on an hourly paid basis and Phillips is to be reinstated to his tirechanging job if he so desires. Backpay, plus interest, is to be computed on a quarterly basis in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 I further recom- mend that Respondent make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpay due them and other rights they might be entitled to receive. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(3) and (1) of the Act by the discriminatory termination of Hunter, Flem- ming, Martin, and Phillips because they engaged in union and concerted activities among themseleves and with other employees for the purpose of mutual aid and pro- tection. 3. Respondent violated Section 8(a)(4) and (1) of the Act by its discriminatory termination of Phillips because he appeared and gave testimony in a Board hearing. 4. Respondent violated Section 8(a)(1) of the Act by: (a) Unlawfully interrogating employees about their union activities and sentiments and the distribution of union business cards to them and other employees. (b) Threatening that employees would be discharged for distributing union business cards which contained the time and place of a union meeting. (c) Threatening employees that they would be dis- charged if it was found that they had union business cards in their possession and ordering employees to sur- render such cards to Respondent's supervisors. (d) Threatening an employee with discharge unless the employee allowed supervisors to examine his wallet to see if he possessed any union business cards. (e) Requiring an employee to give a sample of his handwriting to a supervisor so that the supervisor could 2 See, generally, Isis Plumbing & Heatring Co., 138 NLRB 716 (1962). REEVES SOUTHEASTERN CORPORATION 583 compare it with the handwriting on a union business card. (f) Instructing employees to report to supervisors the identity of employees distributing union business cards. (g) Threatening to discharge an employee if the em- ployee accepted union literature which was being distrib- uted at Respondent's plant gate. (h) Standing beside union agents at the plant gate who were distributing union literature to observe and inhibit employees from receiving such literature. (i) Warning employees that it would close and move its plant before operating with a union. (j) Surveilling the premises of the union hall at the time of a scheduled meeting for Respondent's employees. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The Respondent, Reeves Southeastern Corporation, Tampa, Florida, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Discriminatorily terminating employees because they engage in union and concerted activities among themselves and with other employees for their mutual aid and protection. (b) Discriminatorily terminating employees because they appear and give testimony in a National Labor Re- lations Board hearing. (c) Unlawfully interrogating employees about their union activities and sentiments and the distribution of union business cards to them and to other employees. (d) Threatening employees that they would be dis- charged for distributing union business cards which con- tained the time and place of a union meeting. (e) Threatening employees that they would be dis- charged if it was found that they had union business cards in their possession and ordering employees to sur- render such cards to Respondent's supervisors. s 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 find- ings, 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. (f) Threatening an employee with discharge unless the employee allowed supervisors to examine his wallet to see if he possessed any union business cards. (g) Requiring an employee to give a sample of his handwriting to a supervisor so that the supervisor could compare it with the handwriting on a union business card. (h) Instructing employees to report to supervisors the identity of employees distributing union business cards. (i) Threatening to discharge an employee if the em- ployee accepted union literature which was being distrib- uted at Respondent's plant gate. (j) Standing beside union agents at the plant gate who were distributing union literature to observe and inhibit employees from receiving such literature. (k) Warning employees that it would close and move its plant before operating with a union. (1) Surveilling the premises of the union hall at the time of a scheduled meeting for Respondent's employees. (m) In the same or any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer full and immediate reinstatement to and make Curbie Hunter, Gregory Flemming, John Martin, and Anthony Phillips whole for the loss of pay they suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Post at all customary places in its plant and office copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by an au- thorized representative of Respondent, 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. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4In 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."