P.S.C. Resources, Inc.

P.S.C. RESOURCES, INC. P.S.C. Resources, Inc. and Teamsters Union Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case I-CA- 11776 August 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 7, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and briefs, and Respon- dent also filed a motion to reopen the record. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions, briefs, and motion and has decided to affirm the rulings,' findings, 2 and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, P.S.C. Resources, Inc., Watertown, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. I At the hearing, Respondent's attorney refused to allow Respondent's manager, Lee, to testify as an adverse witness for the General Counsel, thereby dishononng the subpoena duces tecum which had been issued to Lee. Respondent's counsel challenged the validity of rule 61 I(c) of the Rules of Evidence for United States Courts and Magistrates which the Board follows, and thus prompted the General Counsel's motion to reject both Lee's testimony and the subpenaed documents. At the conclusion of the General Counsel's case, Respondent sought to introduce those documents into evidence. The Administrative Law Judge reserved ruling on the General Counsel's motion and permitted Lee to testify. In his Decision, however, the Administrative Law Judge found it unnecessary to rule on the said motion because, in his view, the General Counsel's failure to renew his motion specifically in his brief to the Administrative Law Judge constituted a tacit withdrawal of the motion. The General Counsel has excepted and contends that Lee's testimony, insofar as it pertains to the allegations of the complaint., should be stricken. We find ment to the General Counsel's exception to the Administrative Law Judge's failure to rule on his motion. However, since the Administrative Law Judge did not rely on Lee's testimony and in view of the conclusions reached by the Administrative Law Judge and adopted herein, Respondent's counsel's recalcitrant conduct did not result in any prejudice to the General Counsel's case. We shall therefore not grant the relief sought by the General Counsel. 2 In concluding that Lee's testimony was contradicted by his affidavit, the Administrative Law Judge relied on a portion of the affidavit which was read verbatim into the record at the hearing. Although Respondent states in its brief to the Board that "Respondent's counsel attempted to introduce into evidence the affidavit of John Lee to save time. It was excluded upon 231 NLRB No. 46 objection of the General Counsel . .," it does not appear from the record that the affidavit was marked for identification or that a motion was made for its introduction into evidence. Furthermore, the affidavit does not appear in the record as a rejected exhibit. Accordingly. since there is, of course, no allegation that the affidavit constitutes newly discovered or previously unavailable evidence, we see no reason to reopen the record at this time to receive Lee's affidavit into evidence, and we hereby deny Respondent's motion to do so. Respondent also has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Likewise, we find without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge. There is no evidence of record to indicate that the Administrative Law Judge prejudged this case. made prejudicial rulings, or demonstrated a bias against Respondent or its counsel in his analysis, treatment, or discussion of the evidence. Similarly, Respondent claims that it was deprived of due process of law because, in essence, the Administrative Law Judge complied with Jencks v. United States, 353 U.S. 657 (1957), and then allegedly denied Respondent counsel adequate time to examine the witnesses' preheanng statements at the conclusion of their direct examination. Not only was the Administrative Law Judge correct in applying the Jencks rule and rejecting Respondent counsel's endeavors to abrogate that rule by seeking the preheating statements prior to witnesses' direct examination, but a careful examination of the record fails to substantiate Respondent's claim of inadequate examination time. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case was heard on September 30 and October 1, 1976, at Boston, Massachusetts. The complaint alleges that Respondent violated Section 8(aX3) of the Act by discharging Thomas Carleton on May 13, 1976, and further violated Section 8(a)(1) of the Act at various times in April and May 1976, by giving employees an impression of surveillance of their union activities, coercively interrogating employees, and threatening and intimidating employees. Briefs were received from the parties on or about November 23, 1976. Based on the evidence presented at the hearing' and after careful consideration of the briefs, I hereby make the following: FINDINGS 1. JURISDICTION OF RESPONDENT Respondent is a Delaware corporation whose principal place of business is located in New Jersey. Respondent maintains a place of business at Watertown Arsenal Building #37, in the town of Watertown, Massachusetts, at which it collects and distributes in interstate commerce waste oil and related products. The answer to the complaint admits, and I find, that Respondent is an employer engaged in commerce within the meaning of the Act. nI. THE STATUS OF THE LABOR ORGANIZATION The complaint alleges that Teamsters Union Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Certain errors in the transcnpt have been noted and are hereby corrected. 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Respondent so conceded at the hearing. I so find. III. RESPONDENT'S REFUSAL TO COMPLY WITH THE SUBPENA OF JOHN LEE On September 13, more than 2 weeks prior to the hearing, counsel for the General Counsel issued a subpoena duces tecum to Respondent's manager, John Lee, directing him to appear at the hearing to testify and further directing him to produce various documents relating to the years 1971-76, including personnel files, records concerning production levels and bonuses, route sheets, documents relating to the discharge or discipline of employees, documents showing the management and supervisory hierarchy of Respondent, and communications with the Union. At the commencement of the hearing on September 30, Respondent's counsel filed a written motion to quash the subpena, alleging that the subpena was "too broad in time," "not relevant to the charges," "burdensome and harassing," and, insofar as the personnel records of employees not involved in the case were concerned, "an invasion of privacy and violate the employer's privilege." 2 Since Section 102.31(b) of the Board's Rules and Regula- tions provides that any person who intends not to comply with a subpena "shall, within 5 days after the date of service of the subpoena upon him, petition in writing to revoke the subpoena;" since the petition was thus untimely and since no good cause was shown for waiving this requirement, I denied the motion to quash. The hearing opened, counsel for the General Counsel called Lee to the stand as his first witness, and counsel for Respondent stated that he was refusing to allow Lee to honor the subpena. It developed during argument that counsel for Respondent had previously attempted to secure from General Counsel copies of affidavits given by witnesses whom the General Counsel intended to present in his case-in-chief, a request which General Counsel lawfully refused to honor. Respondent's counsel stated that because he had thus not been made aware of the testimony which would be offered against Respondent, he would not permit Lee to "answer to specifics, under cross-examina- tion, when he has never been confronted with any knowledge as to the specifics of what he is supposed to have said." A subsequent effort by General Counsel to call Lee to the stand was similarly rebuffed. At the completion of General Counsel's case, counsel for Respondent announced that he was at that time willing to make the subpenaed documents available to General 2 Respondent's counsel refused to concede at hearing that Lee had in fact been served with the subpena, but nonetheless filed a motion to quash the subpena. The subpena is in evidence, along with the return receipt signed by "John Lee." The return receipt shows that the document was stamped by the letter carrier as delivered on September 15. In the absence of any evidence to the contrary, I shall presume regularity, as provided by Sec. 102.111 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended. In addition, as discussed hereafter, Respondent's counsel agreed at the end of General Counsel's case to furnish both Lee and the documents "[i In compliance with the subpoena." :¢ The claim that the subpena was "too broad in time" probably had some merit, as the circumstances were developed at the hearing. The record shows Counsel, and further stated that he would allow Lee to take the stand as a witness in General Counsel's case. General Counsel, having twice attempted to call Lee during the presentation of his case and having been twice refused, stated that he would not call Lee at the time that he was finally offered. He protested that Respondent was attempt- ing to force him to present the government's case in a manner contrary to the way in which the government wanted to present it, and the natural consequence of permitting Respondent to hear all of the government's other evidence deprived General Counsel of the advantage of calling Lee initially as an adverse witness under Rule 61 I(c) of the Rules of Evidence for United States Courts and Magistrates. General Counsel at that point asked me to draw "all negative inferences from [Lee's] earlier refusal to testify, and his counsel's refusal to produce him to testify or to produce the records which were subpoenaed when I called for Mr. Lee and those records at the beginning of my case." After some argument, General Counsel rested his case. Thereupon, Respondent called Lee as a witness. General Counsel stated at that time that he would "object in advance to any testimony this witness will give with regard to matters as to which I would have examined him at the time I called for him at the start of the General Counsel's case . . . [and] to the introduction into the record of any such testimony, as well as to the use of any records, which are among those that were subpoenaed, and which the Respondent refused to produce at the time I called for them." I reserved ruling on the motion and permitted Lee to testify. It should first be noted that the motion to quash filed by Respondent at the beginning of the hearing was obviously spurious in most respects. Although the motion had asserted that the requested documents were "not relevant," "burdensome and harassing in that the volume of docu- ments requested are too cumbersome to be produced," and "an invasion of privacy" insofar as personnel records of employees not involved in the case were concerned, Respondent was, at the end of General Counsel's case, quite willing to produce the requested documents without regard to those alleged disqualifying factors. 3 General Counsel had an unquestionable right to call Lee as an adverse witness. The documents requested in General Counsel's subpena, furthermore, were on their face rele- vant and material to the 8(a)(3) complaint allegation, as any experienced lawyer would have perceived.4 Had Respondent filed a timely motion to quash the subpena on the ground that it requested material preceding the present ownership, that motion might have been granted, upon a showing of the facts which would support the motion, and that the company was taken over by new owners, probably in 1974, and that Lee did not become a manager until 1975. Accordingly, insofar as the subpena requested documents for the period 1971-76, it is likely that any such documents preceding the tenure of the present ownership would not have been material. Respondent's failure to file a timely motion to quash, however, makes that argument moot. It should further be noted that the stack of documents which Respondent's counsel eventually proffered at the hearing, which he asserted were all the documents sought by the subpena over which Lee had control, was a very small pile. 4 Respondent's chief counsel stated that he had been engaged in the practice of labor law for 15 years. 234 P.S.C. RESOURCES, INC. a new subpena could have been issued decreasing the timespan of the original subpena. Respondent did not, however, file a timely motion. There appears to be ample basis in law for granting General Counsel's motion to deny Respondent the right to present testimony by Lee and to preclude Respondent from introducing any of the subpenaed documents. 5 In Bannon Mills, Inc., 146 NLRB 611, 633-634 (1964), the employer had refused to comply with a subpena seeking material records. General Counsel then proved his case by presenting secondary evidence. Thereafter, the employer "sought to introduce as part of its own case these subpenaed, but unproduced, payrolls and other records together with secondary evidence of other matters provable by said records." The Trial Examiner held that both the records and the secondary evidence were inadmissible. The Board affirmed that ruling. In the instant case, Respondent did offer to make Lee and the subpenaed records available before General Counsel rested his case. It is obviously improper, however, for Respondent to attempt to order and manipulate the timing and presentation of General Counsel's case in this manner. This stratagem deprived General Counsel of the advantage of attempting to draw damaging admissions from Lee as an adverse witness, a valuable and time- honored method of adducing evidence. In addition, had General Counsel accepted the tardy offer of the docu- ments, it conceivably could have meant that after inspec- tion of the documents he would have been forced to recall the witnesses previously presented by him in order to testify about issues raised by the documents, which would have substantially disordered the presentation of testimo- ny. In International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UA W [Gyrodyne Co. of America] v. N.L R.B., 459 F.2d 1329, 1338 (C.A.D.C., 1972), the court noted, "Indeed, in some circumstances defiance of a subpoena may justify striking a defense, cf Hammond Packing Co. v. Arkansas, 212 U.S. 322, 351 (1909), or completely barring introduction of evidence on the point in question. Cf Rule 37(bX2Xii), Fed. R. Civ. P." General Counsel's helpful brief, however, does not renew his motion to deny Respondent the right to present Lee in its defense. He asks only that "all adverse inferences that can be drawn from Respondent's noncompliance must in fact be drawn." I regard this as a tacit withdrawal of the I Respondent did not, in fact, offer to introduce any of the documents during the presentation of Lee's testimony. At one point. Respondent did attempt to refresh Lee's recollection by showing him a personnel record pertaining to a discharged employee. I ruled that Respondent could not do so, but by that time Respondent had already used the document for that purpose. There are only a few other instances in which Lee's testimony could be considered to implicate records, the most important of which is his testimony that he had discharged some 14 or 15 employees since becoming manager. Respondent did not attempt to introduce records in support of that assertion, nor did it make an offer of proof as to what Respondent's records might contain on that issue. 6 Lee replaced John Giordano, who then became a dnver. Respondent's brief argues that Giordano, who testified for General Counsel, desired revenge against his younger replacement, but the testimony of Respondent's former general manager, William White, makes it clear that at least as of May 1976, Giordano truly did not wish to be the manager. ? White was not located in Watertown. but visited there "once a month motion to preclude presentation of the testimony. Accord- ingly, I shall not rule on the motion. IV. THE EVENTS PRECEDING THE DISCHARGE OF CARLETON Respondent is engaged in the business of refining waste oil. At its Watertown, Massachusetts, facility, with which we are concerned here, it collects waste oil, which is thereafter shipped to one of Respondent's refineries. There are only five drivers and a manager at the Watertown facility, which is located in the Watertown arsenal. The drivers might more properly be called "driver-solicitors"; their function is to find waste oil, at filling stations, etc., purchase it, pump it into their trucks, and return it to the arsenal, where the oil is tested for purity, transferred into tanks, and shipped out for refining. The drivers are salaried and work a 40-hour week. They have no mandatory quota of usable oil which must be secured; however, if they bring in 6,000 gallons in a week, they receive a $25 bonus, and, for 8,000 gallons, a $50 bonus. The drivers are authorized to pay up to 3 cents per gallon for waste oil, but, of course, are encouraged to secure the oil as cheaply as possible. At the times relevant here, John Lee was the manager of the facility, and had been since April 1975. Lee was not himself an experienced solicitor, having served in that capacity for only 4-6 weeks before being elevated to manager. 6 One of the drivers during the relevant period was Thomas W. Carleton, who began employment on December 18, 1975, and whose discharge on May 13, 1976, is alleged here to be violative of the Act. In late February or early March 1976, after the drivers had had a fruitless meeting, requested by them, with General Manager William White about safety grievances and benefits,7 they began, according to Carleton, "talking union" "very frequently" in, among other places, the truck yard (which is located inside a building) and the trailer which served as Respondent's office. On one occasion, in April, Carleton noticed Manager Lee "staring" at them from 30-40 feet away. Giordano testified that Lee often walked into their midst as the employees were talking. On May 6, four of the drivers (Carleton, Anderson, Giordano, and Purcell) signed authorization cards. Subsequently, Carleton testified, during a conversation about the Union, Lee "came walking right through us, while we were standing there." One of the drivers indicated the need for or something like that." Respondent refuses to concede that White is a supervisor or agent of Respondent. White testified that at the time in question he bore the title of "general manager." Lee testified that his understanding of White's position was that "he was in charge of the operations of the Palmer plant, and also in charge of the operation of the Watertown." White came to Watertown at the request of the employees to discuss their grievances and promised to communicate them to Respon- dent's president, Russ Mahler. He also testified that he had received approval for this trip from Mahler. White said that, when, in May, the employees asked him whether he had made any progress on their previous complaints, he told them "no, I hadn't." When he talked to Giordano in May, after the discharge of Carleton, and the subject of the replacement of Lee as manager was discussed, he admittedly asked Giordano "would you be willing to carry the job until somebody moved in here...." Giordano said, that, in White's words, "to help me out he would do it." Without detailing other relevant evidence. there can be no question that White was an agent of Respondent at all material times. 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD silence, but Carleton said, loudly enough for Lee to hear him, that he "did not care if he heard what we were talking about, because we already signed the cards." David Purcell worked for Respondent from June to November 1975, when he was discharged for consistently bringing in small loads. He was rehired on May 5 (and terminated again on May 20). As soon as he became reemployed in May, he heard the discussions in the arsenal about a union, and signed a card on May 6. "[M]aybe two or so days" thereafter, Lee "asked me what I knew about a union coming in or about anybody starting a union coming in." Purcell said he knew nothing. Lee insisted that he thought Purcell knew about the Union, and Purcell denied it. Perhaps the next day, while Purcell was calling in from a stop, Lee "asked me again what I knew about a union coming in, and that he thought I definitely knew about it or had some information." Purcell again disclaimed knowl- edge. John Giordano testified that "a few days after" May 6, Lee asked him if he knew anything about the Union. Giordano told him the employees wanted a union, and that he had signed a card. Lee said, either at this or an earlier time, that "they might close the place down if we tried to get the union in." The last alleged remark had been made in the course of several conversations in which Lee had questioned him about a Union. David Anderson recalled an occasion, perhaps a few days after May 8, when Lee asked him "what I knew about the union," and "did you start the union," and said, "I know you hold a union card" (to which Anderson replied, "You knew that the day you hired me"). Lee also asked who gave Anderson the card. Anderson denied starting the union, admitted signing a card, but said he could not recall who gave him the card. Manager Lee testified that he did witness the men gathering to talk during the time referred to, but did not know what they were talking about. That something unusual was happening, however, is indicated by his testimony that during the first 2 weeks of May, "[t]he incidents of gathering could have been more frequent." That these phenomena made such an impress on Lee belies his statement that he was "[n ot really" paying attention to the gatherings. Lee further conceded that he did speak to the men about union organization. He said that in, perhaps, September 1975, a company driver (but not one of his employees) told him that "your men are organizing a union." Lee reported this to Respondent's president Mahler, who told him to be cautious in his conduct toward the employees ("you can't threaten anybody"). Mahler also told Lee he "would like to know if there are any union activities." Because Mahler was "concerned," Lee would thereafter, "once a month, once every two months," at random "just ask a man in the morning, had he heard anything of union organizing or anyone mention it to him."8 Lee received only negative replies. He also admittedly mentioned to the employees that he had heard that another of Respondent's facilities had been closed down because of an attempt to R On cross-examination, Lee restated the frequency as "about once a month, a couple times a month." 9 Lee admitted, on direct examination, that he had "no information to believe that that was the case where [he ] worked." organize, and told them "if that is the attitude of the company and you guys are organizing for a union, we are all out of a job in the event that happens." 9 He "may have" said this to each driver in "late 1975." Lee further stated that, around the end of 1975, he heard a rumor of a "more concentrated attempt" at organization from driver Gary Cox. He called Mahler at home and so informed him. Lee testified, however, that he heard nothing further about a union drive until about 4:30 or 5 on May 13, the date of Carleton's discharge, when a Board agent called to ask if he had received a copy of the letter and material mailed by the Region on May 10 pursuant to a petition filed by the Union.10 But despite this blanket statement, Lee testified on cross-examination, and in some confusion, that "there is a possibility" that driver Giordano could have told him, prior to the discharge of Carleton on May 13, that the men were organizing a union. Lee's candor with respect to having questioned and threatened employees about a union during 1975 is disarming; and I should say that Lee's demeanor was generally convincing. But I do not think this display of candor certified its own completeness. While Lee testified that he received no information as to union organization after late 1975, he did not testify that he ceased interrogat- ing employees, and since he said that he asked employees about unions "once a month, once every two months," I assume that this continued into May, as the employees testified. In view of Mahler's expressed "concern" and instruction to gather information, the late 1975 information about a "more concentrated attempt" at organization would likely have impelled a "more concentrated attempt" to discover information. Carleton seemed an honest witness, and I credit his testimony that he made a remark about signing "cards" in sufficient proximity to Lee to be heard. Purcell was quite impressive, and I credit his testimony, which both supports findings of coercive interrogation and an impression of surveillance ("he thought I definitely knew about it or had some information") on or about May 10 or 11, and also indicates, by its particularity, that Lee had some inkling that a union was on the move again. The testimony of Giordano in other respects raises some question of reliability, but, on the basis of Lee's concessions, especially that he might have heard from Giordano prior to the discharge of Carleton that a union campaign was in gear, I credit Giordano's testimony that Lee coercively interrogat- ed him around May 7. Although Lee clearly violated the statute by his threats of plant closure, the complaint was not amended to allege such violations, and the testimony of both Giordano and Lee as to the dates on which this occurred is too unspecific to permit a conclusion that it was within the Section 10(b) period. With a similar reservation about Anderson's credibility, to be discussed infra, but for the same reasons, I credit Anderson's account of being coercively interrogated around May 10. I do not believe, however, that the evidence given by Carleton and Giorda- no preponderates in favor of a finding that, "by staring" at 10 Lee testified that the letter had not been received, and that it had been sent to the wrong address. 236 P.S.C. RESOURCES, INC. the employees or walking through their midst, Lee was attempting to surveil the employees or to give them the impression that their union activities were under surveil- lance. V. THE DISCHARGE OF THOMAS CARLETON Thomas Carleton began work as a driver for Respondent in December 1975. On May 13, Manager Lee received a call from a Board Agent inquiring as to whether Respon- dent had received a petition for election which had been mailed from the Regional Office on May 10, and which Lee had not yet received. Shortly thereafter, when Carleton returned at the end of the work day, he was discharged. The discharge is alleged to be violative of Section 8(aX3). At the hearing, Lee took the position that the discharge of Carleton was based on four incidents of improper performance of duty by him, the latest of which had occurred on May 12. Because of a stark conflict between the testimony of Lee and a pretrial affidavit given by him to the Board, I am somewhat doubtful about the necessity for delving into the details of the four incidents. Lee testified that when Carleton returned from work on May 13, was told that he was terminated, and asked for the reason, Lee "cited the Gulf incident, the Boston Fuel incident, and the New Hampshire" incident. However, an affidavit given by Lee to the Board on June 8 states that when Carleton asked for a reason, "I told him he had tied up two trucks [the Boston Fuel incident], and then asked him for his keys and equipment." The affidavit nowhere makes mention of any other incidents which were related to Carleton as a predicate for his discharge. At the hearing, as indicated, Lee testified that he had in fact mentioned several incidents to Carleton on the day of discharge, and he repudiated his affidavit. A clearly intelligent man, Lee gave no explanation of why he would have told the Board Agent less than 4 weeks after the event that he had mentioned only one incident to Carleton if in fact he had referred to three. Carleton testified that Lee gave only the reason that he had ruined a day's work for drivers Purcell and Anderson (the Boston Fuel incident); on cross- examination, Lee expanded his testimony to agree that he might have been this specific. Despite my misgivings, however, I shall consider and analyze each of the incidents. In February 1976, Lee instructed Carleton and Anderson to go to the Gulf Oil separator in Chelsea, Massachusetts, to check on some reportedly usable waste oil. After arriving there, Carleton and Anderson concluded that the oil could be skimmed off the water and told that to Lee. Together with another driver, Manchester, the employees filled up two trucks, taking about 5,000 gallons of liquid. When they returned the oil to the yard, Lee, as he customarily did, tested the liquid and concluded that there was too much water in it to salvage any appreciable amount of oil. The fluid was dumped into a trailer. At the hearing, Lee cast blame for the collection of faulty oil on Carleton. He took the position that Carleton was in charge of the Gulf pickup. There appears to be no basis for this attribution of fault. This was not a source discovered I The complaint contains no specific allegations that such conduct by Lee was violative of the Act. by Carleton. Lee had ordered Carleton, Anderson, and Manchester to go to this potential supply of waste oil. At the time, Anderson had been in Respondent's employ for 8 months, Manchester was, according to Anderson, senior to him in service, and Carleton had been employed only 2 months. Lee testified that in talking to the three men about the incident, Anderson and Manchester had both excused their own failure to properly test the oil by saying that they thought Carleton was in charge of the operation. Anderson denied having made such a statement to Lee.12 Even if Anderson and Manchester had made such a statement, Manager Lee, knowing the background of the incident, clearly had no reason himself to think that Carleton was or should have been in charge. He testified, in fact, that "both these men knew better, all three of them did in fact." Thus, to later hold primarily against Carleton, an employee with only 2 months' tenure at the time, a mistake shared by more senior employees, seems plainly a sham. In addition, Anderson testified, without contradiction, that the load was later sold as "spray oil," which indicates that Respondent recovered some of its investment. The second incident relied upon by Respondent oc- curred in March. Lee instructed Carleton to drive a diesel truck rather than his regular truck. Carleton testified that he was reluctant to do so because he thought that the truck was unsafe and might tip over. Lee testified that Carleton had said the truck was too noisy. Carleton admitted that he argued with Lee about the matter, but they both agree that he finally give in and drove the truck for several days, although as Lee testified, Carleton "wasn't happy about it." The third incident occurred one day in April, when Lee instructed Carleton to pick up a known cache of oil in New Hampshire and to tour the area in search of more oil. Carleton protested, on the grounds that he was unfamiliar with the territory and that Respondent's competition was well entrenched in the New Hampshire area. Carleton nonetheless left on the route. He testified that he made the assigned pickup and then stopped at some 10 to 15 places, in an effort to secure waste oil. However, he found none. At about 2:30 or 3 o'clock that afternoon, Lee happened to see Carleton sitting in his truck on North Beacon Street. Carleton returned to the yard about 4 p.m. Lee asked why Carleton had been on North Beacon Street and Carleton replied that he had been eating lunch, which, he testified, was the fact. Lee became angry and told Carleton that he was not entitled to a lunch break. There is testimonial agreement between Carleton and Lee that a discussion followed about the amount of effort that Carleton should put into the job. I credit Carleton's testimony that he told Lee that he was hired only to work a 40-hour week and would work no more hours than that. Lee testified that he told Carleton that, after leaving New Hampshire, he should have explored his own territory in Boston, and Carleton replied that he had completed a day's work and "was not going to bust his hump running all over Boston looking for more oil." That also may well have been said. Carleton testified that Lee said he was "happy" with Carleton's production; Lee testified that he "may have said" that Carleton was "doing well." 12 Manchester did not testify at the hearing. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees keep logs of stops made by them. Carleton left the office for a short time, and Lee called four of the stops listed by Carleton as having been made by him in New Hampshire. Lee testified that two of the stops reported that Carleton had not been there that day. Carleton testified that he told Lee at the time that the persons he had spoken to must have been mistaken, but he admitted at the hearing that he had falsified one of the entries in order to avoid "static" from Lee. Lee testified that they again discussed production, and that Carleton stated that he would only obtain "6,000 gallons to keep you happy," but that he would not attempt to procure more than that. As noted, employees who procure as much as 6,000 gallons a week receive a $25 bonus. Carleton did not attempt to deny this in rebuttal and it seems likely to me that Carleton may have made such a statement. The final incident relied upon by Respondent, which it claims was the precipitating cause of the discharge of Carleton, was the "Boston Fuel" incident. On May 11, Carleton discovered, at the Boston Fuel Transportation separators, what appeared to him to be a large supply of usable waste oil. Because of the size of the batch, Carleton, instead of purchasing the oil on his own, told Lee of his find, and Lee asked Carleton to get a sample of the oil. Lee testified that Carleton did so, after work on the evening of May II, and brought the sample to him the next morning. Lee tested the oil sample by using a centrifuge test and concluded that the oil was of a high quality. It was Lee's thought to send a large transport trailer to pick up the oil, but Carleton told him there was no room at the separators for such a vehicle. Accordingly, Lee told Carleton and Anderson to go to Boston Fuel in their trucks. At the separators, the two men filled their trucks. A "skimming" method was used, in which, as each truck was being filled, the driver of that truck would stand on the top of his truck and watch the oil, which was coming into the truck through a hose being held by the other driver. Upon their return to the Arsenal, Lee tested the loads and pronounced them 'junk." He told Carleton and Anderson to dump the oil. Since oil and water have a tendency to mix while being driven, the two drivers convinced Lee to allow the oil to settle overnight in the trucks. Lee agreed to do so. The next morning, both the drivers and Lee tested the trucks for salvageable oil. The record is unclear as to the amount of usable oil found in the two trucks after the overnight separation. Carleton, whose truck, according to Anderson and Lee, had a 2,400 gallon capacity, testified that he tested his own truck and found that it contained 900-1,000 gallons of good oil, but that Lee "short-sticked" him in making his own test and gave him credit for only 700 gallons. Anderson testified that his own truck, which had a 2,500- gallon capacity, showed 2,300 gallons of usable oil by his own test, but that Lee only gave him credit for 1,600. Lee's testimony indicates that Carleton's truck contained more than the 700 gallons for which Carleton received credit; he testified: A:' It should he noted that although Lee referred to all four incidents in his initial explanation of the discharge on direct examination, in later direct examination he stated that he fired Carleton because of "a combination of Gulf, and Boston Fuel and a combination of the incident where he was Q. Do you remember the approximate propor- tions? A. The total number of gallons would be returned to Boston Fuel was 21 or 2,200 gallons, and Dave had, Dave Anderson had about 900 [or] 950 in his, so the balance of the 1,200 gallons or so of water would have been Carleton's. Q. How large a truck did Carleton drive? A. 2,400 gallon tank. Lee subsequently reaffirmed that of the 4,900 gallons collected, 2,100-2,200 were returned to Boston Fuel. At Carleton's suggestion, Lee called Boston Fuel and told the company that Respondent had not gotten all that it had paid for. Boston Fuel cooperatively agreed to reimburse Respondent for the 2,200 gallons of water taken from its separator. On the morning of May 13, the water was pumped out of the trucks used by Carleton and Anderson into the large capacity truck manned by Purcell. Purcell was assigned the task of returning the water to the Boston Fuel facility. The truck being operated by Purcell was equipped with a "fine" strainer, a problem which Purcell had complained about to Lee on at least two occasions shortly prior to May 13. When Purcell reached the Boston Fuel location and attempted to discharge the load of water, he found that the water contained consider- able impurities, and because of the nature of the strainer, it took him some 5-5-1/2 hours to unload his truck. According to the testimony of Anderson, he left for work on his regular route at about 10 a.m., as, presumably, did Carleton. When Carleton returned at the end of the workday, he was discharged by Lee. I find it inconceivable that Carleton was discharged either solely because of the Boston Fuel incident, the only reason assertedly mentioned by Lee to Carleton on May 13, as set forth in the affidavit given by Lee shortly after the event, or because of the combination of that incident and the other three briefly described above.13 The Gulf Oil episode was seemingly a trivial error of judgment for an employee who had been on the payroll only 2 months at the time. Lee's effort at the hearing to claim that Carleton was responsible for the operation has no basis in fact, and is contrary to the normal division of responsibility between a novice and more experienced employees like Anderson and Manchester. Although it is obvious that, in March, Carleton was grudging in his compliance with Lee's instruction that Carleton drive the diesel truck, the fact is that Carleton did accede to Lee's command, and it is obvious that the incident was one of the minutiae of a daily working routine. As noted, in his testimony, Lee at one point forgot about this incident completely. The New Hampshire occurrence was of a more serious nature. Carleton accomplished very little on the day that he was sent to solicit oil in New Hampshire. He was seen by Lee having lunch in his truck when Lee, according to his testimony, thought that Carleton should have been out looking for oil. He was caught by Lee in a falsification of caught on North Beacon Street." When General Counsel recapitulated the three reasons at the beginning of his cross-examination, Lee added "the incident also of the truck 37, which he refused to dnve. which was left out." 238 P.S.C. RESOURCES, INC. his log, involving two stops in New Hampshire that, according to Lee's information, he had not made. When they discussed his performance on that day, Carleton probably indicated that he was not going to overly exert himself at the job. There are, however, aspects of overkill and exaggeration in Respondent's attitude towards the New Hampshire affair. For example, although Lee seemed to believe that most of the drivers ate lunch only as they were driving along, there was no rule forbidding Carleton to stop and have lunch, and Lee testified "if he wanted to stop for lunch, he should have done so when he was on the road." The fact that Carleton stopped on Beacon Street rather than "on the road" seems immaterial.l4 Lee's testimony on direct examination was that Carleton had taken an unmistakable stance that he would not "bust his hump" for the company. According to Lee, they drank some beer and discussed the matter; Lee hoped that Carleton would express contrition and a resolve to "change [his] way," but "he didn't. He left feeling pretty much the same way he did when we first started talking." However, on cross-examination, Lee, when asked to explain why he did not fire Carleton at that time, contradictorily testified that by the end of the conversation, Carleton had "mellowed." Furthermore, it is difficult to understand why Carleton's threat to limit himself to 6,000 gallons per week was perceived as a serious abdication of his duties; if Carleton had carried out his "threat," he would have won a bonus every week. But if the New Hampshire business was not without its ostensibly serious elements, I am at a loss to understand why Carleton was not fired for that incident rather than for what occurred with the Boston Fuel load. For the Boston Fuel incident was at worst a slight and well-intentioned misjudgment, having very few reverberations. Carleton believed that he had spotted a promising source of supply and, as Lee testified, after work and on his own time, had gone to Boston Fuel to get a sample of the oil, as directed by Lee. Carleton did not err in taking this sample; according to Lee, "there was nothing wrong with the way" Carleton took the sample. The problem, Lee said, was that Carleton should have paid closer attention to what was coming into the trucks when he and Anderson were pumping out the supply. It may well be that Carleton committed an error on this score, but so did Anderson, as Lee testified. There is nothing in the record to suggest that the two men were not making an earnest effort to bolster their production records and to find good oil. Although there was a large amount of water in the Boston Fuel load, Respondent incurred no monetary loss therefrom. Carleton suggested to Lee that he attempt to get reimbursement for the water from Boston Fuel, and Boston Fuel agreed to make such reimburse- ment. Some 1,600 actual gallons of usable oil were pumped out of Anderson's truck, which was within Anderson's normal average of 1,500-1,800 for a day's work. As discussed above, perhaps as much as 1.200 gallons of usable oil were taken from Carleton's truck, according to 14 That the drivers were entitled to stop for refreshment is indicated by Lee's testimony that when he first saw Carleton on Beacon Street, he accepted it as within the norms of appropriate behavior, thinking, "well, maybe he had come back from New Hampshire and stopped to grab a cup Lee's testimony quoted above, which matched or exceeded Carleton's daily output of 1,100-1,200 gallons. In the end, the complaint against Carleton appeared to be found in Lee's testimony that the misjudgment "delayed actually three trucks," Carleton's, Anderson's, and Pur- cell's.'5 Why the misjudgment is laid at Carleton's doorstep, rather than the more senior Anderson's, is unclear, since the fault concededly lay not in taking the sample, but rather in monitoring the flow of oil into the trucks. But the only delay of Carleton and Anderson occurred on the morning of May 13 when they pumped water from their trucks into Purcell's truck, and they were on their way to perform their regular duties by 10 a.m. That some delay was occasioned to Purcell, who spent 5 or more hours pumping out the water at the Boston Fuel location, must have been recognizable to Lee as attributable to himself as much as to anyone. He chose Purcell's truck for the purpose. He testified that Purcell's truck was not the only one capable of holding the 2,100 gallons of water. Purcell credibly testified that he had complained to Lee about difficulties with his strainer, which Lee might have well foreseen as a source of problems when he assigned Purcell to the task, since Lee conceded that there are "frequent impurities" in waste water which could have been anticipated to clog Purcell's fine strainer. That Purcell was regarded as dispensable is indicated by his known poor productivity and Lee's testimony that Purcell was not "a regular driver" but "was in as a spare." Carleton was not discharged until the end of the workday on May 13, shortly after Lee had received a phone call from a Board agent stating that a representation petition had been filed. Apparently to avoid the obvious inference arising from the coincidence, and to make it appear that the incident of May 12 had been the precipitating cause of Carleton's discharge, Lee testified that he made the decision to discharge prior to the phone call: "I would say the evening of the 12th, the morning of the 13th." Lee's testimony in this regard is most unsatisfac- tory. Asked why he did not fire Carleton on the morning of May 13, since the Boston Fuel occurrence was completed the day before, he said, "I didn't feel like it." That is not very much of an explanation. Moreover, as discussed above, the only palpable loss to Respondent from the Boston Fuel incident was the time spent by Purcell attempting to drain off the water at the Boston Fuel location, but that unexpected delay was not known to or expected by Lee on the evening of May 12 or the morning of May 13; he testified that, normally, it should not have taken Purcell more than a half hour to pump off the water. Accordingly, since, as of the morning of May 13, Respondent had suffered no pecuniary loss from the Boston Fuel load, and had received perhaps as much as 2,800 gallons of usable oil from Carleton and Anderson as a result of that pickup, and the only time lost as of the morning of May 13 was that used by Carleton and Anderson in pumping off the water from their trucks, there appears to be simply no explanation in practical terms for a of coffee, and he is going to go around his own area in Boston and pick up more oil." 1i Lee testified that the amount of oil taken "was not the issue at the time." 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to fire Carleton to have been made as of that morning. At that time, at worst, there had simply been a misjudgment on Carleton's part with no detriment to Respondent. To the extent that Lee testified he held the whole incident against Carleton because "it was Mr. Carleton's idea to do it in the first place," it should be recalled that, as noted above, Lee testified that "there was nothing wrong with the way" Carleton took the oil sample, but that he should have detected that he was pumping an inordinate amount of water along with the oil while he was removing the liquid at the Boston Fuel location. That, of course, has nothing to do with it being "Carleton's idea to do it in the first place." Lee was open and candid about Carleton's excellent performance as a driver. Carleton was usually the second or third highest producer among the drivers. Lee testified that Carleton "was the kind of guy that could go out and pull 6,000, 7,000, 8,000, maybe more than that gallons of waste oil a week. And he knew where to go and get it and he knew how to do a good job .. ." Carleton would collect "at least 1,000 gallons of oil a day and many times more than that, a lot more than that." Carleton "frequently" used to receive a bonus for his week's work. Carleton displayed ambition and aggressiveness: Some people take to it and they start from the very first day. In Carleton's case, not only going out and doing the job, but formulating a route and writing down every stop, where it is, and how many gallons you can get there, above and beyond what you would normally expect a driver to do. And in that case you make exceptions. It is also clear that the dominant imperative of Lee's job was to collect as much waste oil as possible. He described the standard that was set for him in terms of production as being "to pick up as much waste oil as you possibly can." Despite the fact that, in the New Hampshire incident, Lee had assertedly discovered Carleton loafing on the job, not bringing in any oil other than that he had been dispatched to collect, lying about the number of stops that he had made that day, and indicating that he would not make an all out production effort, Lee explained that he had not discharged Carleton then because "I needed the oil." Since Carleton was clearly a good and consistent producer, and since Lee blithely ignored his derelictions in the New Hampshire incident in the interest of retaining a productive employee, I find it incredible that he would have been persuaded by the trivial Boston Fuel incident, in which the company lost virtually nothing, to discharge a proven capable employee. In view of the expressed need for production as the single motivating force of the operation, Carleton's sudden discharge is made even more suspect by the fact that Lee had no replacement in mind for him when he fired him on Thursday, May 13. A most instructive contrast is the case of David Purcell. Purcell testified, without contradiction, that he worked for Respondent as a driver for 5 months in 1975. During that time, Purcell's average collection of oil was about 650 '" It is myjudgment that Lee would not have made such remarks, in such a concerted manner, without prior sanction. gallons a day. Compared to Carleton's average of 1,000- 1,200 gallons, Purcell fares quite badly. Nonetheless, Lee tolerated Purcell's consistently poor production, which did not vary during his initial tenure, for 5 months before terminating him. Although Carleton may have indicated in April that he was not going to commit himself body and soul to the solicitation of waste oil, Lee could not testify at the hearing that Carleton's production had deteriorated between that time and the date of his discharge. And yet, for the negligible losses incurred by Respondent as a result of the Boston Fuel incident, which certainly could not have been considered by any objective standard to have been other than simply a judgmental error, Lee rid himself of a valuable employee who had plainly established his useful- ness. The record further shows that Purcell was rehired on May 5, indicating that Respondent was short-handed, and also shows that when Purcell was told by Lee on May 20 that he would not be needed, it was because "he had a man to drive the truck, a man I had been training for a couple of days." Thus, even Purcell was not discharged until a replacement had been secured for him. The reasons given for the discharge of Carleton seem so baseless and pretextual to me that I think the rule of Shattuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (C.A. 9, 1966), may properly be invoked: If [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. Lee's admission that, on two previous occasions, he had been told about efforts at unionization by the employees establishes that he had sources. It is quite possible that when Carleton said, in Lee's proximity, shortly after the employees had signed union cards, that he "did not care if [Lee] heard what we were talking about, because we already signed the cards," Lee heard and understood, and may have garnered from that remark that Carleton was a leader of the union effort. The record shows that Anderson as well as Carleton played an active part in the effort to organize, but the overheard remark may have lent special emphasis to Carleton's role. Respondent's keen interest in the union oriented activity of its employees is revealed by President Mahler's instructions to Lee to keep abreast of the situation. Its likely attitude toward possible organiza- tion of the employees is manifested by the threat of plant closure delivered to each of the employees, most probably with Mahler's approval.16 The anxiety and union animus thus displayed found expression in the precipitate termina- tion of Carleton on May 13, an action which, as explained by Lee, simply defies business commonsense and which may properly be ascribed to the information just previously received by Lee that the employees were now doing more than talking about a union. 240 P.S.C. RESOURCES, INC. There is in the record direct evidence of employer knowledge and motive. Employee Giordano testified that the day after Carleton was discharged, he had a conversa- tion with Lee in the office trailer; Anderson was possibly present. Lee "told me that he knew who the troublemaker was on the union; and right off the bat, the way he looked at me, and the way he had me sitting opposite him, I figured he was blaming me, but I didn't say anything."' 7 Giordano then left the trailer. Later that day, according to Giordano, General Manager White, who was talking to the men about their unsettled grievances, told Giordano, whom he had known for 25 years, that he wished to converse privately with him. White asked, as he had done previously, whether Giordano would accept the post of manager; Giordano declined the offer, mentioning, inter alia, that there would be problems with the Union which he did not care to confront. At the close of the conversation, Giordano said, "I think I'm being blamed for the Union." White replied, "No. We know it was Tom Carleton, and he's all through." Anderson had walked up next to the two at that time. In subsequent testimony, Giordano said that when he had mentioned possible "problems" which might be caused by the Union, White had said there would be none, since the company had gotten rid of the instigator, but that White had not given a name to the instigator. It was only later in the conversation, when Giordano mentioned his concern that he was being blamed for the advent of the Union, that White referred to Carleton. Apparently intended as support for Giordano's testimo- ny about his conversation with Lee on the day after Carleton was terminated, Anderson testified that Lee "said to me that-and Giordano that he knew who the instigator was in the union and they got rid of him." Anderson was obviously confused here. He testified that this occurred "about May 8," "right after the meeting with Walsh," the union representative with whom the employees had met on May 6, the day they signed cards. Plainly, since Carleton was not discharged until May 13, Lee would not have told Anderson and Giordano on May 8 that "they got rid of" the instigator. I think that Anderson was clearly confused and was attempting to refer to the later conversation with White on the day after Carleton's discharge. He subse- quently testified that on that day, he was nearby when he heard Giordano ask White, "Do you know that Mr. Lee is blaming Anderson and myself for the union?" to which White replied, "Don't worry. We know you didn't do it. We got rid of the troublemaker and the instigator- Carleton." Anderson further testified to a conversation with Lee, 2 days after the discharge, in which Lee asked him "why Carleton started the Union, what he thought he was going I7 Giordano testified that he had left early the preceding day and had not known, at the time of this conversation, that Carleton had been discharged. I' Respondent's brief assumr s that Anderson was here referring to the conversation testified to by Giordano as occurring on the day after the discharge, but the context and the date given by Anderson ("two days after Carleton was fired") makes it plain that Anderson was speaking of a separate conversation between him and Lee. '9 Respondent argues that certain testimony by Anderson on cross- examination constitutes a repudiation of his prior certainty that White had said Carleton was discharged because of his union activity. The passage reads: to benefit out of it." When Anderson asked what made him think that Carleton initiated the campaign, Lee "smirked at me and said, 'I know.' "s8 It is clear that the testimony of Anderson and Giordano about what seems to be a conversation with Lee on the day after the discharge of Carleton is not easily reconcilable. The testimony of Giordano and Anderson that they did not tell any union officials about these incriminating remarks, even though they had ample opportunity to do so at a meeting a few days after the discharge, and relayed the statements to no one until they talked to a Board agent in September, makes their testimony plainly suspect. I further tend to agree with Respondent's argument that White, a management representative with many years' experienced in dealing with unions and no longer in Respondent's employ at the time of the hearing, would not likely have made the incriminating remarks attributed to him by Giordano and Anderson, which he denied. And yet, despite the obviously confused state of Anderson's testimony, I found him to be an extremely impressive witness, brash, self-possessed, and spontane- ous.19 To only a slightly lesser extent was I impressed with Giordano. The issue as to whether they heard these alleged statements is a finely balanced one. I have decided to make no positive findings that such statements were made. This is not to say that I credit White and Lee or discredit Anderson and Giordano; those are labels which are not easy to affix in these circumstances, and if I should use those magic words, it would simply be a close judgment call on a difficult decision as to which I have set forth all the relevant factors. In the circumstances, I see no need to rely on that precise testimony or to base 8(aX)(1) findings on that testimony. In this connection, however, Lee gave an answer to a question which, in my view, is nearly as revealing with respect to Respondent's motive as the testimony of Anderson and Giordano referred to above. The following colloquy took place on direct examination of Lee: Q. Did you ever tell Bill White that you had discharged Carleton or words of this effect, that you had discharged Carleton because he was the union instigator? A. No, I didn't. Q. Did you ever say that to any other employee or to any other person? A. No, I can't recall that I did. For Lee to say that he "can't recall" that he ever told anyone that Carleton had been discharged because he was the union instigator is an extremely curious statement. If, as Lee maintains, he knew nothing of Carleton's union I don't know if Mr. White actually, if he really meant what he said about Mr. Carleton getting fired, about the union. Alright, Mr. Carleton could have been fired for several other things and he could have said union. This is clearly no retraction of the claim that White said Carleton's discharge was union-connected; it is simply a careful statement that while White "said union," Anderson was in no position to ascertain what ., actual reason was. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities and those activities played no part in the discharge, the answer to that last question should have been "absolutely not" or "no" or the like. To say that he "can't recall" that he made such a statement admits of the possibility that he did make such a statement, and that in turn implies that Carleton was discharged for the reason given. Despite my uncertainty about the reliability of the testimony of Anderson and Giordano, I am far from uncertain about the strength of the case presented by General Counsel. All of the circumstantial evidence-the timing, coincident with the news of the representation petition; the transparent weakness of the reasons given for the discharge of Carleton, together with the contradiction in Lee's testimony and his pretrial affidavit; the disparately harsh treatment of a valuable employee like Carleton as compared with the leniency accorded a much less useful driver like Purcell; and the many other factors detailed above-leaves me convinced that General Counsel has established by a preponderance of the evidence that the discharge of Thomas Carleton on May 13, 1976, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I. P.S.C. Resources, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Union Local 25, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Thomas W. Carleton on May 13, 1976, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating employees about their union activities and giving an employee the impression of surveillance of union activities in May 1976, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as found above, Respondent has committed no violations of the Act as alleged in the amended complaint. THE REMEDY In order to remedy the unfair labor practices found herein, I shall recommend that Respondent be required to cease and desist therefrom and take certain affirmative action. Having found that Respondent discriminatorily dis- charged Thomas W. Carleton on May 13, 1976, I shall recommend that it be required to offer Carleton immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, and 2" 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. to make him whole for any loss of earnings he may have suffered from the time of his termination to the date of Respondent's offer of reinstatement. His backpay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent be required to post appropriate notices to employees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER20 P.S.C. Resources, Inc., Watertown, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for assisting or supporting Teamsters Union Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or for engaging in other union activity or concerted activities for the purpose of mutual aid or protection. (b) Coercively interrogating employees about union activities or giving employees the impression that their union activities are under surveillance. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Thomas W. Carleton full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available for the Board or its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due to Carleton. (c) Post at its place of business in Watertown, Massachu- setts, copies of the attached notice marked "Appendix." 21 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall 21 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 242 P.S.C. RESOURCES, INC. be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT discharge or otherwise discriminate against any employee to discourage membership in Teamsters Union Local 25, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or to interfere with the union activities or other protected concerted activities of employees. WE WILL NOT coercively interrogate employees about their union activities or give employees the impression that their union activities are under surveil- lance. WE WILL NOT in any other manner interfere with the statutory rights of employees to engage in self-organiza- tion, to form, join, or help unions, to bargain collective- ly through representatives of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any or all these things. WE WILL offer Thomas W. Carleton immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent one, and wE WILL compensate him with interest for any loss of pay he may have suffered because we discharged him. P.S.C. RESOURCES, INC. 243