Alpers' Jobbing Co.

ALPERS' JOBBING COMPANY Alpers' Jobbing Company, Inc. and Teamsters Local Union No. 688. Case 14-CA-8933 August 16, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On June 30, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, a supporting brief, and a motion to correct the record, and General Counsel filed a motion in opposition to Respondent's motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, brief,' and motions 2 and has decided to affirm the rulings, findings, 3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. The Administrative Law Judge found that Respon- dent discharged Melvin Hagans "at least in part" in order to discourage union activity and therefore that the discharge was violative of Section 8(a)(3) of the Act. We do not agree. Hagans was hired as a stock clerk in May 1974, and terminated on October 17, 1975. Shortly before his hire, he was released from a hospital where he had spent several months being treated for tubercu- losis. At the time of hiring, Respondent was aware of this history and had agreed that Hagans could absent himself several times a month for the purpose of returning to the clinic for checkups. However, his absences during the period of his employment were far in excess of the amount of time necessary for his checkups. Thus, from May to December 1974, Hagans was absent from 8 hours to 50 hours each month and during 1975 his monthly absences ranged from 14 hours to 66 hours. During September 1975, the month immediately prior to his discharge, he was absent 61 hours. As the record. exceptions. and brief adequately present the issues and the positions of the parties, Respondent's request for oral argument is hereby denied. 2 In its motion to correct the record. Respondent alleges that the transcript in this case is incomplete in that it fails to include Respondent's statements and argument in support of its motion for sequestration of witnesses and fails to include the rulings of the Administrative Law Judge in connection therewith. We agree with counsel for the General Counsel that Respondent had an opportunity to state its position and to summarize any off-the-record discussions on sequestration of witnesses upon returning to the record. Having failed to do so during the hearing, it would be inappropriate for the Board to attempt to add to the record. Moreover, we find that the Administrative Law Judge did not abuse his discretion in his 231 NLRB No. 57 The incident which gave rise to Hagans' discharge occurred during the first part of October. On the weekend of October 4 and 5, Hagans drove to Kansas City with another employee in order to visit his mother who was ill. While there he apparently had car trouble, but failed to notify Respondent that he would not be at work, until Tuesday, October 7, when he telephoned Arnold Alper. Hagans and his fellow employee did report for work the following day, Wednesday, at 1:30 p.m. However, Alper was upset with them, told them that "they looked like they were tired and needed rest," and directed them to take the remainder of the week off to rest up. In concluding that Respondent discharged Hagans "at least in part" because of Hagans' preeminence in the union campaign to which Respondent was unalterably opposed, the Administrative Law Judge refused to credit Respondent's explanation that the sole reason for Hagans' discharge was his excessive absenteeism, relying on the following: (I) Hagans was never seriously warned or threatened with discipline prior to his termination; (2) even after Hagans was cautioned about his absences by Arnold Alper in July, Alper gave him certain responsibilities in the warehouse during Alper's absence in August; and (3) Respondent originally sought to ground Hagans' termination upon economic reasons, i.e., the work was "slowing up," but at the hearing Respon- dent shifted the explanation to alleged excessive absenteeism. The Administrative Law Judge conceded that for a period of time prior to Hagans' termination Respon- dent considered that his absenteeism was excessive and that excessive absenteeism may constitute good and sufficient cause for an employee's discharge. However, he inferred that this was not the sole reason for Hagans' discharge, relying on the factors set out above. We do not believe that the evidence preponderates in favor of the conclusion drawn by the Administrative Law Judge. We consider the factors he relied on seriatim. (As a preliminary matter, it should be noted that Hagans' discharge occurred approximately 6 months after the election which the Union won and 2 months after the Union's certification. There was no prospect of a second rulings on the sequestration of the witnesses. We therefore deny Respon- dent's motion to correct the record. 3 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 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 Drys 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, except as indicated hereinafter. In the absence of exceptions, we adopt proforma the Administrative Law Judge's finding that there is insubstantial evidence to establish a violation of Sec. 8(a)(I) by Respondent's conduct in "denigrating" the Union. 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election within any reasonable period of time after the discharge.) I. Hagans was never seriously warned or threatened with discipline prior to the termination. According to the Administrative Law Judge's own finding, in early July 1975 Arnold Alper confronted Hagans with a written list showing his numerous absences from the date of his employment to July and requested Hagans to improve his attendance, "because we needed the help, we didn't need people coming and going as they pleased." Hagans promised to do better. Because Hagans' attendance failed to improve (during the month of September he was absent 61 hours), Arnold Alper again criticized him for his absences during a meeting held a week or two before the discharge.4 The foregoing evidence establishes that Respondent was dissatisfied with Hagans' attendance record and notified him of that dissatis- faction prior to the discharge. When Hagans again failed to report for work on October 6, Respondent decided to discharge him. There is no statutory requirement that an employer must threaten an employee with discipline before discharging him for persistent absenteeism. The situation might be different if there was evidence of a practice on the part of Respondent to threaten or warn before discharging, but there is no such evidence in this case. Moreover, the two meetings at which Respon- dent criticized Hagans for his attendance could hardly be considered as anything other than a warning to him that he had to improve or face the consequences. Respondent was not required to use ritual words: "If you persist in absenting yourself, you will be discharged." 2. Even after Hagans was cautioned by Arnold Alper in July, the latter gave Hagans certain responsi- bilities in the warehouse during Alper's absence in August. In August 1975, when Arnold Alper went to a trade show in Las Vegas, he asked Hagans to watch over things more closely while Alper was gone, because Hagans "was pretty good at remembering where things were put and where things were and he was a good worker." The Administrative Law Judge "pondered" why this was done "if Hagans was as untrustworthy and unaccountable as Respondent sought to have us believe." But Respondent never said that Hagans was untrustworthy or unaccounta- ble. On the contrary, Alper testified that Hagans was a good worker. The only complaint against him was his bad attendance. This factor therefore is irrelevant 4 According to Alper, at this meeting he asked Hagans what the latter would do if their positions were reversed and he had an employee with Hagans' absentee record. Hagans replied, Alper testified, that he "would get rid of him." Hagans admitted the meeting and Alper's question but denied saying that he would fire the employee. According to Hagans, he answered, to the determination of Respondent's motive in discharging Hagans. 3. Respondent originally sought to ground the termination upon economic reasons, i.e.. that the work was "slowing up," but at the hearing shiftecd its reason for the discharge. According to Hagans, Arnold Alper started "telling a lot of people that the work was slowing up and that he was going to have to get rid of a few guys to cut down the work force. So, all week he had been saying that on Friday he was going to lay me off." Arnold Alper testified that he discharged Hagans because of his poor attendance record and not because of a work slowdown. The Administrative Law Judge credited Hagans' testimony and on that basis found that Respondent had shifted its reasons for the discharge. However, even were we to accept this credibility resolution-an issue which we need not reach-in the circumstances here where obvious and impelling lawful reasons existed justifying Hagans' discharge at the time he was dismissed, we find that his uncorroborated testimony that Alper offered shifting reasons for the discharge does not alone amount to substantial evidence that illegal motivation played a part in his separations True, when an employer with union animus discharges a leading union proponent, there is, as the dissent suggests, a strong suspicion that the discharge was motivated by the employer's antipathy to the employee's union organizational efforts. Neverthe- less, an employee's union activity does not insulate him from discharge for engaging in conduct for which he would have been terminated even if he had not been a union proponent. In Klate Holt Company, 161 NLRB 1606, 1612 (1966), the Board said: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent dis- charge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstances that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful. Here, there can be no question but that Hagans' attendance record was poor and getting worse, that despite Respondent's complaints and warnings there was no improvement, that his termination followed immediately an unexcused 3 days' absence during "I didn't know." The Administrative Law Judge did not discuss this evidence or resolve the testimonial conflict. s N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 506 (C.A. 6, 1967). 450 ALPERS' JOBBING COMPANY the first part of which he did not even bother to notify Respondent that he would not be in to work, and that Respondent was "mad" about Hagans' unexplained absence, as Hagans himself testified. Consequently, Respondent not only had a just cause but also what would usually be considered a moving cause for discharging Hagans. That being so, the suspicion based on Respondent's animosity is insuffi- cient to support a finding that the discharge was, despite its probable lawful basis, nonetheless caused in whole or part by Hagans' union activities. 6 As we have rejected the bases upon which the Administrative Law Judge inferred that Respondent discharged Hagans partly for his union activity, we also reject his conclusion that the discharge was discriminatory. Accordingly, we shall dismiss the complaint insofar as it alleges that Respondent discharged Hagans in violation of Section 8(a)(3) and (1) of the Act. AMENDED CONCLUSIONS OF LAW Delete the Administrative Law Judge's Conclusion of Law 3 and renumber the subsequent conclusions accordingly. 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, as modified below, and hereby orders that the Respon- dent, Alpers' Jobbing Company, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: I. Delete paragraph l(a) and reletter the subse- quent paragraphs accordingly. 2. Delete paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I am puzzled by the majority's reversal of the Administrative Law Judge's finding that Hagans' discharge was motivated in part by Respondent's desire to discourage union activity and not solely by his absentee record. There is no doubt that Hagans was absent from work several times a month during his 17-month employment with Respondent. It is also clear that Respondent was aware of his medical F In Member Walther's view, since Respondent established good cause for the discharge, the burden shifted to the General Counsel to prove that the alleged legitimate reason for the discharge was a pretext and that "but for" Respondent's union animus Hagans would not have been discharged. problem prior to the commencement of his employ- ment and tolerated his absences. The majority states, however, that during the period prior to his discharge his absenteeism increased. They particularly note that during September 1975, the month immediately prior to his discharge, he was absent 61 hours. However, Respondent's vice president, Arnold Al- per, testified that at the time Hagans was discharged his absentee records included the period only through June 27, 1975. Hagans testified that Alper told some of the employees (including Hagans) that work was slowing up and the work force would be cut. At the hearing, Alper denied that Hagans was discharged for lack of work, but did not deny that he informed employees that work was slowing up. The majority purportedly attaches no significance to the Administrative Law Judge's credibility resolutions which led to his conclusion that Respondent shifted its position as to the reason for Hagans' discharge. However, the majority proceeds to attack the essential credibility findings it has ignored, by stating that Hagans' testimony was uncorroborated. This feat of legerde- main does not withstand scrutiny. The failure to consider the material credited evidence, while plainly convenient, is otherwise inexplicable. The foregoing affirmative errors in the majority's rationale are only minor compared to the glaring omissions. The intensity of Respondent's union animus has been set forth by the Administrative Law Judge and his findings adopted by the majority, and I join them. The majority finds that Respondent violated the Act no less than 10 times by various acts of interference, restraint, and coercion. As correctly stated by the Administrative Law Judge, the point was singularly brought home to Hagans. Thus, the majority finds that Respondent was aware of Hagans' prounion sympathies and violated the Act by repeatedly suggesting to him that he take a layoff and draw unemployment until he found a better job. The majority also finds that Respondent's president, Irvin Alper, told an employee that Hagans and another employee would be "one of the first ones to go because they were supposed to be instigators of the union," and that the Union would not be of any assistance to the employees because "there are ways to fire a man and get around the Union." The majority, inexplicably, makes no reference to the above unfair labor practices. The most pronounced error in the majority's rationale is their attempt to completely ignore an incident which clearly demonstrates that Hagans' See Member Walther's dissent in East Bay Newspapers, Inc., d/b/a Contra Times, 228 NLRB 692 (1977). In Member Walther's judgment, the General Counsel has not met this burden. 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge was motivated by antiunion considera- tions. According to Hagans' credited testimony, shortly after the election, Irvin Alper asked him "why I was going to try and bring a bunch of gangsters down to run his business." Hagans responded that the employees would benefit from having a union. Alper then "called me a troublemaker and said he would get even with me." It is difficult to conceive of a more significant and incriminating statement. Finally, at the hearing, Respondent introduced another basis for discharging Hagans. The Alper brothers testified that they intended to discharge Hagans in the spring of 1975, but refrained from doing so on the advice of counsel, until October 1975, when they decided it was "permissible to terminate Hagans." It is apparent that Respondent sought merely to obfuscate the basis for Hagans' discharge by waiting for 6 months after the represen- tation election. Even were I to agree with my colleagues that Hagans' attendance record was poor and justified his discharge, I would nevertheless find that Respondent violated the Act. It is true that an employee's union activity does not insulate him from discharge for engaging in conduct for which he would have been terminated even if he had not been a union proponent. However, that is not dispositive of the issue, for it is well established that the mere existence of valid grounds for such action is not a defense unless the action was predicated solely on those grounds. 7 In order to find that Hagans' absentee record was the sole cause of his discharge, one would have to disregard the overwhelming credited and unrefuted testimony set forth above. I cannot join my colleagues in doing so. In view of all of the foregoing, I conclude, as did the Administrative Law Judge, that the termination of Hagans on October 17, 1975, was motivated, at least in part, by a desire to discourage union activity and thus violated Section 8(a)(3) of the Act. 7 Signal Delivery Service, Inc., 226 NLRB 843 (1976). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees by suggesting that employees who support Teamsters Local Union No. 688 take a voluntary layoff to seek other employment. WE WILL NOT coercively interrogate employees concerning their union activities, or how they voted in an NLRB-conducted election. WE WILL NOT impliedly promise employees benefits in order to persuade them to abandon or cease supporting the above-named Union. WE WILL NOT threaten employees that we could unduly prolong and delay collective bargaining by engaging in prolonged court proceedings. WE WILL NOT threaten employees that we will shut down our facilities in order to avoid bargaining with the above-named Union. WE WILL NOT create an impression of surveil- lance of employees' union activities by: (I) informing employees that we know how they voted in an NLRB election, or (2) advising employees that we are aware of their union activities by listening on the intercom system. WE WILL NOT advise employees that we can manufacture or arrange a pretext to hide the real reason for discriminating against an employee who favors the Union. WE WILL NOT threaten employees with dis- charge for engaging in union activities. WE WILL NOT threaten employees that other employees would be discharged for engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the National Labor Relations Act, as amended. ALPERS' JOBBING COMPANY, INC. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This proceed- ing, heard before me at St. Louis, Missouri, on March 9-11, 1976, with all parties present and represented by counsel, involves a complaint issued' pursuant to Section 10(c) of the National Labor Relations Act, as amended (herein the Act), alleging that Alpers' Jobbing Company, Inc. (herein the Company or Respondent), interfered with, restrained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act, by engaging in certain conduct described more fully herein, including the discharge of two employees in order to discourage membership in and activities on behalf of Teamsters Local Union No. 688 (herein the Union), in violation of Section 8(aX3) of the Act. By its duly filed answer, Respondent admitted the facts constituting thejurisdictional allegations of the complaint, as well as the agency status of its two January 20, 1976, based upon an original charge filed on December 2, 1975. 452 ALPERS' JOBBING COMPANY primary officers, but denied the commission of any unfair labor practices. Within the time allowed following the close of the hearing written briefs have been received from counsel for Respondent and from counsel for the General Counsel, which have been duly considered. Upon the pleadings, stipulations and arguments of counsel, the evidence, including my observation of the demeanor of the witness- es,2 and the entire record in the case, I make the following: FINDINGS AND CONCLUSIONS I. THE ALLEGED UNFAIR LABOR PRACTICES 3 A. Background At all times material, Respondent has been engaged, in the city of St. Louis, in the wholesaling of shoes, rubber goods, and related products. In the course of its business operations, it maintains two principal warehouse facilities: one located on Martin Luther King Drive in St. Louis, and the other located on Hadley Street in that city.4 Respondent, although established as a corporation, is solely owned, controlled, and operated by two brothers, Irvin and Arnold Alper. The record shows that the Alper brothers divided their responsibility of supervising the aforesaid warehouses by Arnold being primarily responsi- ble for the operation of the Hadley Warehouse, and Irving being in charge of the warehouse on Martin Luther King Drive. At all times material, the employee complement of Respondent at both warehouses was approximately 15 employees, most of whom worked as stock clerks. It should be noted, for a more complete understanding of the issues presented, that most of the employees are black and occupy the lower rungs of the economic and literacy ladders. At least prior to the union election in April 1975 (of which more anon ), the operations of Respondent could be characterized as being quite loose and paternalistic. That is to say, for example, that although there were regular, scheduled hours of work for the employees, these were not rigidly adhered to; there was no timeclock to be punched nor regularly scheduled periods for coffeebreaks. Also, the Alper brothers regularly loaned the employees small amounts of money for personal needs, which loans were collected from the weekly paychecks. In other words, the Alper brothers assumed a sort of noblesse oblige attitude towards the employees and their families for their well- being, above and beyond the normal employer-employee relationship which exists in most modern business enter- 2 In resolving credibility issues, I have in certain instances credited some and discredited other testimony of the same witness. See, e.g.. N.LR.B. v. LUniersal Camera Corporation, 179 F. 2d 749. 754 (C.A. 2. 1950); Southeast- ern M otor Truet Lines, 113 NLRB 1122 (1955). The testimony of all witnesses has been considered, which includes their demeanor while testifying. The absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such resolution or analysis was not made. See, e.g.. Bishop and Malco, Inc.., d'/ba Wa/Aer's. 159 NLRB 1159, 1161 (1966). : There is no issue as to the Board's jurisdiction, or of the status of the Union as a labor organization. As previously noted. the complaint alleges sufficient facts, which are admitted by answer, upon which I may, and do hereby. find that Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. The complaint alleges, the prises. Prior to the spring of 1975, 5 no labor organization had represented the employees for purposes of collective bargaining during the entire period of the corporation's existence. The record shows that, during the month of February, the Union carried on an organizational campaign among the employees which resulted in a petition being filed by the Union for an election, such election being held by the NLRB on April 4 (Case 14-RC-7875). The Union received a majority of the valid votes case in such election, but the employer (Respondent herein) filed objections to the election, which objections were eventually overruled and the Union was certified on August 4. However, bargaining has not resulted, since Respondent chose to test the certification by refusing to bargain upon the Union's request. The Board's decision requiring Respondent to bargain upon request (222 NLRB 817) is presently pending before the United States Court of Appeals for the Eighth Circuit upon Respondent's petition for review of the Board's decision. B. The Issues The issues presented for decision in this proceeding relate to certain acts and conduct assertedly engaged in by the Alper brothers which allegedly interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and the discharge of two employees (Melvin Hagans and Charles Norman) in October, allegedly because of their union activities. Some of the evidence offered by the General Counsel related to asserted conduct by the Alper brothers around the time of the election in April. This evidence was allowed in the record only as "background" since it occurred beyond the 10(b) period; I therefore make no findings of violation based upon such asserted conduct, but only consider it as giving insight to conduct which assertedly occurred within the 10(b) period. C. The Events Shortly Before and After the NLRB Election on April 4 It is apparent from the record that the Alper brothers were disheartened and dismayed when they learned, in March, that some of their employees had voluntarily designated the Union to represent them for purposes of collective bargaining.6 They became all the more disap- pointed when, immediately following the election, the tally of ballots indicated that the Union had apparently won. 7 Thus, shortly after the election, Irvin Alper asked employee answer admits, and I find that at all times material the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 4 There is apparently a third warehouse owned by Respondent, but there are no employees regularly stationed at that location and it is not germane to the issues presented in this proceeding. 5 All dates hereinafter refer to the calendar year 1975, unless otherwise indicated. 6 Respondent first became aware of this fact when the Teamsters representative, Amos Green. called upon the Company and advised them of it. ? The original tally showed six votes for the Union. three against. one void, and three challenged ballots. Following an investigation. the Regional Director issued his report on challenged ballots and recommendations. recommending that the challenges be overruled and the ballots be opened (Continued) 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael Williams how the latter had voted in the election. Williams pleaded ignorant, stating that he did not know how he voted. Then Alper asked Williams did the latter owe him any money and if so when he intended to pay it. Williams did owe some money, and agreed to repay it at a rate of $20 per week. Alper said that there would be no more borrowing of money: "You do me dirty, I do you dirty." 8 After the election, Arnold Alper advised employee Melvin Hagans that the employees were "stupid" for trying to get a union, and that had the employees applied to him, he probably would have given them all a raise.9 Several days after the election, Irvin Alper told employee Harvey Simms that the latter had doublecrossed him (Simms did not appear to vote at the election). Alper stated that he was looking for Simms to vote for the Company. Alper wondered out loud why the employees wanted the Union anyway since it would not do them any good, and "since most of them were going to be gone anyway." Alper further characterized the union representatives as a "bunch of crooks." 10 Shortly after the election, Irvin Alper asked employee Nathaniel Saddler how the latter had voted in the election. When Saddler replied that he did not know how he voted, Irvin Alper became rather incensed, stating that Saddler "knew damn well how he had voted," and he (Alper) "knew damn well how all of [the employees] voted." Irvin Alper also requested that Saddler repay the money that the latter owed Alper." Based upon the foregoing, I conclude that at all times material Respondent had a deep-seated animus toward its employees being represented for purposes of collective bargaining by the Union. D. Alleged Interference, Restraint, and Coercion 1. The complaint alleges that "beginning in August 1975 . .. Arnold Alper harassed an employee .. . because of his activities on behalf of the Union by closely supervising the employee, continually criticizing the em- ployee's work and repeatedly suggesting that the employee take a voluntary layoff to seek other employment." The record discloses that the employee involved with respect to this allegation is Melvin Hagans.12 Hagans, who was one of the leaders in the union campaign, testified that "after the election" Arnold Alper, who was his supervisor at the Hadley Street warehouse, commenced harassing him by and counted. No exceptions to the Regional Director's report having been filed, the Board on May 5, adopted the Regional Director's recommenda- tion, overruled the challenges, directed that the ballots be opened and counted, and that a revised tally be served on the parties. The revised tally, issued May 16, showed seven votes cast for the Union, five against, and one void ballot. (See 222 NLRB 817.) The foregoing findings are based upon the credited testimony of Williams, who impressed me as an honest and candid witness. 9 The foregoing finding is based upon the credited testimony of Hagans, who generally impressed me as a truthful witness with the exception of the area of the number of absences which had accrued on his record during the term of his employment with Respondent (as appears more fully, infra ). Arnold Alper was not present in St. Louis during the latter part of February and first part of March, having attended a trade conference in Las Vegas. Nevada, during that time. He learned about the union activities of his employees upon his return to St. Louis. i' Credited testimony of Simms. requiring him to perform certain work and then, after Hagans had completed it, countermanding the directions to require Hagans to do the same work in a different manner. Hagans also claimed that after he had performed certain work at Alper's direction (such as placing some boxes in the warehouse under a leak in the roof and having it rain on them) Alper would call him a "dummy" or "knucklehead" for placing the cases there. The record reflects that Respondent installed a timeclock in the warehouse in July or August. Hagans testified that, after the timeclock was installed, Arnold Alper would closely scrutinize his timecard and would criticize him for being late and would make a deduction for the few minutes which he may have missed from work. Also, according to Hagans' testimony, commencing in August, Arnold Alper started asking Hagans to take a voluntary layoff and draw unemployment until he was able to find a better job. Hagans declined this invitation since "times were too hard." Arnold Alper denied that he singled out Melvin Hagans for criticism at or about this time. He testified that Hagans had not done anything "real bad" for which he (Alper) had occasion to criticize him. Alper acknowledged that, during that period of time, the Company had received many complaints from customers because of shortages and that he (Alper) commenced watching all the employees' work more closely in order to correct this situation. After a careful consideration of all the record evidence bearing upon this allegation, I conclude that the General Counsel has failed to sustain such allegation (except for the voluntary layoff aspect) by a preponderance of the evidence. In the first place, although the record is not entirely clear, it appears from Hagans' testimony that most of the alleged "harassment" (except for the timeclock and voluntary layoff incidents) occurred within the month shortly after the election, and therefore outside the 10(b) period. Such being the case, I, of course, can make no finding of violation on these incidents. Moreover, I believe there is insufficient evidence to show that Arnold Alper was singling out Hagans for criticism of either his work or more strict adherence to scheduled worktime. Thus, I will recommend that this allegation of the compaint be dismissed except with respect to the evidence that, commencing in August, Arnold Alper repeatedly suggested to Hagans that the latter take a voluntary layoff to seek other employment. Arnold Alper did not deny this assertion, and I credit Hagans' testimony with respect l" The foregoing findings are based upon the testimony of Saddler, which I credit in these respects since it appears consistent with the conduct of the Alper brothers described by other employees at or about this time. Nathaniel Saddler was not generally impressive as a witness and I have not credited all of his testimony where it is otherwise controverted or does not appear consistent with that of other witnesses. Respondent contends that it is highly implausible that the Alper brothers would inquire of employees how the latter voted when they concede that they were generally aware after the election how the employees voted based upon the fact that some employees had advised the brothers prior to the election that they would vote "no" in the election. However, I find nothing necessarily inconsistent by these findings since the Alper brothers may very well have wished to confirm their suppositions by inquiring of the employees in the manner stated. 12 As above noted, Hagans is one of the alleged discriminatees in this case, and was terminated by Respondent in October. This issue will be dealt with more fully, infra. 454 ALPERS' JOBBING COMPANY thereto. Nor did Respondent claim that there was a work shortage during this period which would explain Alper's request of Hagans. Indeed, Respondent contended throughout the proceeding that Hagans was a good worker when he was present. Under all circumstances, I find that Respondent was, at all times since the election, aware of Hagans' prounion sympathies, and would have been pleased and relieved had Hagans voluntarily left the employment of Respondent.13 Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by repeat- edly suggesting to an employee that he take a layoff and draw unemployment until he found a betterjob. 2. The complaint alleges that "sometime in August 1975 . . . Arnold Alper impliedly promised an employee . . . benefits in an attempt to undermine support for the Union." 14 In support of this allegation, employee Charles Norman testified that, during the time period mentioned, he had a conversation with Arnold Alper; that the latter stated that he was upset about what the fellows had done and that if they waited a little longer he had intended to give them a raise when he returned from his trip (to Las Vegas). Arnold Alper denied that he had ever "said anything like that," but admitted that when he was in Las Vegas he was "thinking about giving everybody a raise [and] when I came back and (sic) I may have mentioned that fact .. ." I find and conclude that the conversation took place substantially as Charles Norman testified and, in agree- ment with the General Counsel, find that the reasonable import of such statement by Alper was that if the employees would abandon their support of the Union they could, in confidence, look to the employer for an increase in wages. Such implied promise of benefits in return for employees' foregoing of Section 7 rights clearly violates Section 8(a)(1) of the Act. 15 3. The complaint alleges that "sometime in August 1975 ... Arnold Alper stated to an employee. . . that he [Alper] knew how all of the employees had voted in the union election due to the fact that the Respondent had deliberately made election arrangements calculated to yield this information." In support of this allegation, employee Nathaniel Saddler testified that Arnold Alper told him in August that he knew how everyone voted in the election because the election had been held in two different buildings. Arnold Alper generally denied having such a conversation with Saddler, and particularly averred that he had "nothing to do with arranging the election." As previously indicated, I was not particularly impressed with the demeanor of Saddler as a witness; on the other hand, both Alper brothers acknowledged rather freely in their testimony that, by the close of the election, they had ascertained (to their own satisfaction) the identity of the employees who had voted for and those who had voted ": Arnold Alper acknowledged in his testimony that he was softhearted towards the employees and did not wish to harm them in any way. which included a disinclination to forcefully terminate them. He characterized such an attitude as being "chicken." ,4 The foregoing is denominated in the complaint as par. 5(C): counsel for the General Counsel in his brief asserted that par. 5(B) of the complaint was withdrawn at the hearing. i' See, e.q.. ,L.R.B. v. Exchange Parts Companr, 375 U.S. 405 (1964). '6 321 F.2d 100, 104a fn. 7 (C.A. 5, 1963). against the Union. Their conclusion, however, was based not upon the fact that the election was held in two different buildings but, rather, upon the fact that approximately six employees had told them prior to the election that such employees intended to vote against the Union. I am convinced that in discussions with the employees on this subject matter subsequent to the election, both Alper brothers made this conclusion known. The question remains whether or not the imparting of such a supposition to the employee constitutes an "impres- sion of surveillance of union activities" in violation of Section 8(aXI) of the Act. I find that it does. The United States Court of Appeals for the Fifth Circuit in Hendricks Manufacturing Company, Inc. v. N.LR.B. 16 stated that "the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc." I find and conclude that telling its employees that it knew how everyone voted in the election, in the context of the union animus previously found to have existed in the warehouses at this time, created the impression of surveillance within the test enunciated by the court. I therefore find that a violation of Section 8(a)(1) of the Act has been sustained in this regard. 4. The complaint alleges that "sometime in August 1975 ... Arnold Alper made a statement to an employee . . . to the effect that the Respondent would tie up the Union's certification in the court until the employees could be replaced." In the conversation between Arnold Alper and employee Nathaniel Saddler above referred to (wherein Arnold told Saddler that he knew how everyone voted in the election), Saddler testified that Arnold Alper told him that "this thing might drag in court for 2 or 3 years. About that time everybody would be gone and they might decide to close the plant down. He was tired of all this aggravation." Arnold Alper denied having any conversation with Saddler about this time concerning the case "dragging out through the courts," or that he told Saddler that the plant would close and by that time everybody would be gone. However, Irvin Alper admitted in his testimony that on at least one occasion he told employee Harvey Simms that "if this thing goes into court it will take a long time, it took Quick Shop 3 years." 17 Under all circumstances, I find that it is highly probable that Arnold Alper made substantially similar statements to Saddler that Irvin Alper admitted making to another employee. Accordingly, I conclude and find that such comments, made in the context of other unlawful acts and conduct, constitute a violation of Section 8(aX)() of the Act.' s 5. The complaint alleges that, sometime in August, Irvin Alper told an employee that the union representatives 1 I take judicial notice of an NLRB proceeding in Quick Shop Markets, Inc., et al., 168 NLRB 180 (1967). which involved a chain of retail food outlets in and around the St. Louis area. This case was heard by me in December 1966; the Board's decision was issued on November 9, 1967. and the decision of the United States Court of Appeals for the Seventh Circuit (affirming the decision of the Board). issued on October 9. 1969. 1 also note two subsequent cases involving the same Company: 200 NLRB 830 (1972), and 204 NLRB 1150(1973). is See. e.g., Owens-Corning Fiberglass Corporation, 185 NLRB 75 (1970). 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were dishonest. Employee Kenneth Allen testified that one day in September he came in late to work, and that Irvin Alper told him that if he could not get there on time he would have to find another job. Alper also told him on this occasion "to see if the union people could help [him] with that and that all they were going to do was take [his] money. They ain't nothing but a bunch of crooks." Irvin Alper recalled the incident but denied stating that the union was nothing but "a bunch of crooks." Counsel for the General Counsel, urging that I credit Allen's testimony, notes that Arnold Alper testified that it was "all over the news" about Teamsters officials being convicted of crimes, and that this subject was discussed in the plant. However, I deem it unnecessary to resolve this particular credibility issue since, assuming the testimony of Allen, on this occasion, to be true and correct, I find there is insubstantial evidence to establish a violation of Section 8(a)(1). Thus the statement attributed to Irvin Alper was not made in a context of other unlawful threats or coercive statements and, in my view, in these circumstances, constitutes merely the expressing of an opinion by the employer respecting the character of some of the officials of the Charging Union (or of its sister local) which is protected by the provisions of Section 8(c) of the Act.19 In the case relied upon by counsel for the General Counsel in his brief 20 the Board specifically declined to pass upon the legality of the employer's conduct in "denigrating" the Union. Under all circumstances, I will therefore recom- mend that this allegation of the complaint be dismissed. 6. The complaint alleges that "sometime in September . . . Irvin Alper told an employee . . . that the Union could not protect the employees." The foregoing allegation refers to the evidence in the preceding paragraph in which Irvin Alper reportedly told employee Kenneth Allen when the latter came in late one morning, that the "Union cannot help you in those kind of cases." 21 Contrary to the argument of counsel for the General Counsel, I cannot agree that, in the context in which the statement was here made, it was indicative that the Union was "impotent in protecting employees from discharge and, consequently, union representation is futile." Irvin Alper testified that he had received a copy of a proposed union contract in which it was clearly spelled out that an employer could permissibly discipline employees for not conducting themselves properly at work, i.e., by coming in late or not showing up for work. Alper testified that he told Kenneth Allen that the "union expects a man to give you a day's work for a day's pay." Clearly the import of Alper's statement was merely to point out to an employee that the latter should not expect his collective-bargaining represen- tative to protect him when he has engaged in wrongful conduct. This is certainly to be contrasted with, and distinguished from, a situation where the employer has threatened that a union would be impotent to protect the employee where the latter is deserving of such protection. I shall therefore recommend that this allegation of the complaint be dismissed. 19 "The expressing of any views, argument, or opinion, or the dissemina- tion thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." 7. The complaint alleges that "sometime in September . . .Irvin Alper told an employee. . . that he would shut down the plant if he had to in order to get away from the Union." This allegation also stems from the aforesaid conversa- tion between Irvin Alper and Kenneth Allen in September. Following a leading question by counsel for the General Counsel, Allen was asked did Irvin Alper mention anything about his intentions concerning the business. Allen testified that Alper stated that "he would rather close the business down and let everybody go home." Alper testified that "even before this union business," he had generally threatened employees on occasion that if they did not "behave themselves" he would have to close the business and "all go looking for a job." Alper further testified that, following the advent of the Union, he had received instructions from his attorney that, generally, he was not to threaten or coerce his employees because of their union activities and therefore he "never mentioned anything about the Union . . . in discussion with people and I stayed away from it all the time." This credibility resolution has been an exceedingly difficult one in view of the General Counsel's leading question. On the other hand, Irvin Alper's testimony was not consistent in that he concededly discussed the Union with several of his employees, advised them that he knew how they had voted in the election, and made other antiunion statements hereinabove referred to. Allen im- pressed me as a candid and truthful witness, and I therefore credit his testimony on this occasion. I conclude and find that the threat uttered by Irvin Alper on this occasion constituted a violation of Section 8(a)(1) of the Act. 8. The complaint alleges that "sometime in September . . . Irvin Alper interrogated an employee. . . concerning how that employee and other employees had voted in the election which the National Labor Relations Board conducted." In the following paragraph, the complaint alleges that, in the same conversation, Alper told an employee that he "knew how that employee and other employees voted in the election which the National Labor Relations Board had conducted." The foregoing allegations arose from a conversation between Irvin Alper and employee Kenneth Allen in the Martin Luther King warehouse. According to Allen's testimony, the conversation initially involved employee Nathaniel Saddler and the latter's propensity to lie; that Alper stated "he didn't know why Nathaniel would want to lie to him (Alper) about how he (Saddler) had voted. If he had voted 'no,' then he should have said so, but he just said - he told him a lie, that he had voted 'yes.' " Allen responded that he did not know how Nathaniel voted but he (Allen) had voted "yes." Allen went on to state that Alper commented on this occasion that "he knew how everyone had voted in the election." Irvin Alper testified that the conversation arose in a little different manner but that he did state the following with 20 Kellwood Corrmny, Ottenheimer Division, 178 N LRB 20 (1969). 21 1 agree with counsel for the General Counsel that it would be consistent with Irvin Alper's testimony that the word 'can" be corrected to read "cannot" at p. 460, I. 10 of the transcript. 456 ALPERS' JOBBING COMPANY respect to his knowledge of how the employees had voted in the election: Q. Do you recall anything further in that conversa- tion? A. Yes, I told him, I said, "Kenny, six people voted for the union, we had 15 people working at that time, that means nine people were against it." I said, "If nine people are against it I am going to do what I can to satisfy these nine people." I said, "If we have to take it to court we will take it to court," or words to that effect, I don't know if I used the same words but that was the essence of my conversation with him. Q. Do you recall anything further in that conversa- tion? A. He told me that he voted for the union. I said, "You have your right to vote anyway you want, I didn't ask you, if you wanted to vote, yes, that is up to you." I didn't ask but he told me, himself, that time, I do remember. Q. Do you recall whether you said anything in that conversation, or any other conversation with Kenny, about that time, to the effect that you knew how everyone voted in the election? A. I don't know about that time, but it wasn't hard to figure out. There were 12 people that voted that day. JUDGE COHN: You testified a few minutes ago, you told Kenny that you knew six people voted for the union. You just testified to that, that is what my notes indicate? THE WITNESS: Yes, well, I told them that, but he has asked me if I told him, if I knew how well, it would be the same thing, I did know how they voted at that time because six had voted- JUDGE COHN (interrupting): Is that what you told Kenneth Allen? THE WITNESS: Yes. Contrary to the contention of counsel for the General Counsel in his brief, I do not concur that, in the context of the foregoing conversation, "it was reasonable for Kenneth Allen to believe that he was expected to reveal how he voted," or "it is reasonable to conclude that Irvin Alper sought out Allen to resolve whether Saddler voted yes or no." However, based upon Alper's admitted statements to Allen that since only 6 out of 15 employees voted for the Union (meaning 9 people were against it), Alper intended to "satisfy these nine people . . . if we have to take it to court." It will be recalled that this statement was made after the Regional Director had issued his revised tally of ballots showing seven votes were cast for the Union, five against, and one void ballot. Such a statement by Alper reveals a patent disregard of the Regional Director's findings (to which no exceptions were filed), and a clear threat to prolong the proceeding for the purpose of delaying collective bargaining. For the reasons expressed 2 1 am aware that this finding does not comport with the theory of the two allegations discussed. However, it was fully litigated without objection from Respondent, and thereafter properly forms the basis for a finding of above in paragraph 4, I conclude and find that such a threat constituted an additional violation of Section 8(aX)(1) of the Act.22 9. The complaint alleges that "sometime in October 1975 ... Arnold Alper told an employee that he intended to find a reason to discharge the employee." Employee Nathaniel Saddler testified that at the close of the workday on October 24 (immediately after Arnold Alper had discharged Charles Norman, as discussed more fully, infra ), Saddler chauffeured Arnold Alper from one of Respondent's facilities to another. At the commence- ment of the trip, Alper told Saddler that he was "tired of Charles Norman being drunk and . .. that was one of them he got rid of. He said, 'I am seeking out after you next.' " Arnold Alper was unable to recall whether he rode over to the Martin Luther King address with Nick Saddler that particular Friday - that he rode over with him once or twice when Alper did not have transportation. In any event, Alper denied the remarks attributed to him by Saddler. Here again, the credibility resolution has been an extremely difficult one. Although, as previously pointed out, Saddler was not a particularly impressive witness on the stand, his testimony on this particular conversation was direct and withstood vigorous cross-examination. I also note that this statement was one which, unlike some of his other testimony, was not at variance with his prehearing affidavit. In addition, I have taken into account the fact that the statement attributed to Alper took place almost immediately after the discharge of Norman, and therefore there is a strong probability that the incident was on Arnold's mind and that he mentioned it, contrary to his denial. Under all circumstances, I credit Saddler, and find that the statement made by Alper on this occasion constituted a threat of retribution for engaging in union activities, in violation of Section 8(a)(1) of the Act. 10. The complaint alleges that, in December 1975, Irvin Alper threatened an employee that employees would be discharged because of their activities on behalf of the Union, and that Respondent had installed listening devices at the Hadley Street facility through which Respondent's supervisors could constantly monitor the employees' union activities. The evidence cited in support of these allegations is contained in a conversation between Irvin Alper and Harvey Simms. Simms testified that, commencing after the election and continuing during the summer and fall of 1975, he had many conversations with Irvin Alper in which the latter advised the following: (I) That Saddler was "always talking about the Union," and that he and Melvin Hagans were going to be one of the first ones to go because they were supposed to be the instigators of the Union; (2) that the Union would not be of any assistance to the employees because "there are ways to fire a man and get around the Union"; and (3) speaking of the intercom at the Hadley Street facility, Irvin Alper advised that he could hear "everything on that box ... and he knew everything that went on." violation. Amenrican Boiler Manufacturers Association v. N.LR.B., 366 F.2d 823. 825 (C.A. 8. 1966); see also N.LR.B. v. J. C Penney Company, 384 F.2d 479 (C.A. 10, 1967). 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irvin Alper admitted having many conversations with Harvey Simms - that "he is a guy thlt does a lot of talking, I just let him do the talking, he tells you everything." However, Alper denied the statements attrib- uted to him by Simms with reference to Melvin Hagans since Alper claimed that he did not know "Mel Hagans from the man in the moon," and therefore was unaware that Melvin Hagans was organizing. I cannot credit this denial because the Alper brothers admitted, as discussed more fully, infra, that during the period surrounding the election they had been discussing the possibility of terminating Hagans but had declined to do so at that time upon advice of their counsel. It is to be recalled that the Alper brothers conceded that they were aware of the union proclivities of their employees, so they must have known that Hagans was an adherent of the Union even if the proof does not show directly that they were aware that he was one of the leaders. Accordingly, I cannot credit Irvin Alpers' statement that he "did not know Mel Hagans from the man in the moon."2 3 Based upon the foregoing, I find that Respondent violated Section 8(a)(l) of the Act by: (1) threatening an employee that other employees would be discharged for their activities on behalf of the Union; (2) advising an employee that Respondent could discriminate against employees in retaliation for their union activities, with impunity; and (3) in the context of an antiunion conversa- tion, advising an employee that Respondent could over- hear their conversations in the warehouse through the medium of an intercommunication system. E. The Alleged Discriminatory Discharges i. The termination of Melvin Hagans Hagans' employment with Respondent as a stock clerk in the warehouse commenced in May 1974. He was terminat- ed on October 17, 1975, assertedly for excessive absentee- ism. The issue on this aspect of the case is whether this reason, as proffered by Respondent at the hearing, was the "real reason"24 for the termination or merely a pretext to becloud Respondent's real motivation. It should be noted at the outset that Hagans had been confined in a tuberculosis hospital shortly prior to the commencement of his employment with Respondent, and Respondent was aware of this previous history at the time of hiring. Hagans advised Respondent that it would be necessary for him to be absent from work several times a month for the purpose of returning to the clinic for checkups. However, Respondent contends that Hagans was absent from work more often than was anticipated for this purpose, and that such absenteeism became so excessive by the time of the election in April 1975 that, as previously mentioned, the Alper brothers had had some discussions with their attorney about the desirability of terminating Hagans at that time, for that reason. However, 21 In addition to other factors previously mentioned bearing upon credibility, I note that Simms was still an employee of Respondent at the time of the hearing, but nevertheless testified adversely to Respondent notwithstanding that fact. The Board has noted this factor as one which tends to support his credibility as a witness. See Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enforced as modified 368 F.2d 89 (C.A. 5, 1962); Astrosystems, Inc., 203 NLRB 46 (1973); Federal Envelope Cornpany, 147 NLRB 1030. 1036 (1964). Hagans testified that he was never disciplined or laid off for failing to come to work prior to the time of the election, and Respondent proffered no record to vary or contradict this testimony. The record shows that it was not until approximately the first of July 1975 that Arnold Alper confronted Hagans with a list of the hours which he had missed from work from the time of his employment until such date. However, even on that occasion, it is not clear in the record that Alper threatened discipline if Hagans did not improve. Alper testified: I wanted him to assure me that he would come in more often and come regularly to work because we needed the help, we didn't need people coming and going as they pleased. Q. When he was present, was he a good worker? A. Yes, sir. Moreover, a few weeks later in August, Alper requested Hagans to assume some responsibilities in the warehouse during Alper's absence at a trade show in Las Vegas. Arnold Alper testified as follows with respect to this incident: JUDGE COHN: The question was when you had a conversation with Hagans in connection with the trade show. THE WITNESS: I think I asked him to watch over things more closely while I was gone because he was pretty good at remembering where things were put and where things were and he was a good worker so I asked him to watch over it more closely. JUDGE COHN: When was this? THE WlTNESS: In August 1974. JUDGE COHN: 1974 or 1975? THE wrTNESS: I have gone for the last 12 or 13 years. JUDGE COHN: When was the conversation with Mr. Hagans that you just told us about? THE WITNESS: The August show of 1975. The incident which gave rise to Hagans' discharge occurred during the first part of October. On the weekend of October 4 and 5, Hagans, in the company of Charles Norman, drove to Kansas City for the purpose of visiting Hagans' mother, who was ill. Apparently while there, they had car trouble, but failed to notify Respondent until Tuesday, October 7, when Hagans telephoned Alper. They returned to St. Louis the next afternoon at or about 1:30 p.m., and requested of Arnold Alper to go to work. However, he was quite upset with them, and told them that "they looked like they were tired and needed rest," and directed them to take the remainder of the week off to rest. 24 See The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L [Bull Steamship Co.] v. N.LR.B., 347 U.S. 17 (1954); Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Los Angeles-Seattle Motor Express] v. N.LR.B., 365 U.S. 667,675 (1961). 458 ALPERS' JOBBING COMPANY Arnold Alper testified that it was at that point that he reached the decision to terminate Hagans.25 The following Monday, October 13, Hagans and Norman returned to work, and Arnold Alper had a conversation with Hagans in which Alper gave him a week's notice, and, according to Alper's testimony, told Hagans that he was being terminat- ed for excessive absenteeism. However, Hagans testified that, commencing on October 13, Arnold Alper began telling some of the employees (including Hagans) that work was "slowing up and he was going to have to get rid of a few guys to cut down the work force. So, all week he had been saying that on Friday he was going to lay me off." I credit Hagans. As respects Hagans' union activities, the record shows that Hagans was one of the principal instigators of the organizational campaign among the employees of the Company. He solicited authorization cards from other employees of the Company and, according to his testimo- ny, obtained eight signed authorization cards. Although the Alper brothers denied knowledge of Hagans' prominence in the union campaign, they acknowledged, as previously noted, that they were aware of who among the employees had voted for the Union. In May, Hagans had a son born to him, and missed a day's work. Thereafter, he had a conversation with Irvin Alper as follows: A. That is when Irvin turned to me and he asked me why did I do him the way I did. At the time, I didn't know what he was talking about. So, he asked me why I was going to try and bring a bunch of gangsters down to run his business and that he had it over 30 years. So, I told him that I didn't see where they were gangsters and we would benefit from having a union. So, he said he didn't need no troublemakers coming down there. He told me he would get even with me. Q. Could you repeat the last sentence? A. He called me a troublemaker and said he would get even with me.26 Analysis and Concluding Findings It may be assumed for purposes of this discussion that, for a period of time prior to Hagans' termination, the Alper brothers considered his absenteeism to be "excessive." It may further be taken as axiomatic that excessive absentee- ism on the part of an employee may constitute good and sufficient cause for his termination. However, the inquiry does not end there since it is well established that: The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union 2, He testified that "it was only maybe a week or so before that his brother informed him that the attorney had authorized the Respondent that it was now permissible to terminate Hagans." ·6 Credited testimony of Hagans. 27 Stated another way, the mere existence of a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause. N.LR.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8. 1956). 2A The sole documentary consultation in July only resulted in Arnold Alper's urging Hagans to improve upon such absenteeism activity. [N.LR.B. v. Symons Manufacturing Co., 328 F.2d 835 (CA. 7, 1964).]27 After a consideration of all of the record evidence, I am convinced, and therefore find, that the termination of Hagans by Respondent on October 17 was motivated, at least in part, by his preeminence in the union campaign to which Respondent was unalterably opposed. The quality and intensity of the Alper brothers' union animus has been set forth above, and need not be restated. It should be noted, however, that the point was singularly brought home to Hagans by Irvin Alper in May, coupled with the threat of retaliation. It was readily explained on the record by the Alper brothers that they were in no position to implement their intention to terminate Hagans earlier because of the advice from the labor counsel that they should not engage in such conduct during the currency of the union campaign. Such a position certainly has a ring of plausibility attached to it. However, I have extreme difficulty giving full credence to the argument of Respondent that Hagans' absenteeism constituted the sole reason for his termination in view of the following: (I) he was never seriously warned or threatened with discipline prior to the termination;28 (2) even after he (Hagans) was cautioned by Arnold Alper in July, the latter gave Hagans certain responsibilities in the warehouse during Alper's absence in August. One ponders why this was done if Hagans was as untrustworthy and unaccountable as originally sought to ground the termina- tion upon economic reasons, i.e., Respondent would have us believe; and (3) it further appears that Respondent originally sought to ground the termination upon economic reasons, i.e., that the work was "slowing up." However, at the hearing, Respondent receded from such position. Such shifting of positions has been held to constitute evidence of discriminatory intent.29 Upon the basis of all of the foregoing, I find and conclude that the termination of Hagans on October 17 was motivated, at least in part, by a desire to discourage union activity in violation of Section 8(aX3) of the Act. In a recent case,30 the Board held, citing Broyhill Company, 210 NLRB 288 (1974): It is well established that a discharge motivated in part by an employee's exercise of Section 7 rights is a violation of the Act even though another valid cause may also be present.3 1 2. The alleged discriminatory discharge of Charles Norman This employee commenced working for the Company as a stock clerk in the warehouse in 1971. He was terminated by Arnold Alper on October 24, assertedly for inability to work steadily as a result of alcoholism. 29 See George J. Roberts d Sons, Inc., 188 NLRB 454 (1971), enfd. (on this issue) 451 F.2d 941 (C.A. 2, 1971). 3' Charles Edwin Laffey, d/b/a Consolidated Services, 223 NLRB 845 (1976). 31 See also N.LR.B. v. Hanes Hoisery Division, Hanes Corporation, 413 F.2d 457, 458 (C.A. 4, 1969). 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There appears to be no question that Norman was a satisfactory employee of Respondent on those occasions when he had not been imbibing. As Arnold Alper testified: "Mr. Norman is very polite, he is friendly, he doesn't talk bad to anybody, he will do anything I ask him to do, I have nothing against him personally except when he has been drinking." However, the record reflects that the number of hours per week which Norman failed to work in the years 1974 and 1975 were rather substantial, and, in May 1974, Arnold Alper fired Norman for this reason. Nevertheless, the record reflects that he was rehired by Respondent in June, and his employment was continuous from that time until his discharge on October 24, 1975. However, his "drinking problem" did not abate and he continued to miss a substantial time from work on account of it. Although the record is not entirely clear, it was apparently in August or early September 1975 that Arnold Alper suggested to Norman that: if he wanted his job he had to go get dried out. I suggested that he go to the same place that Melvin Jones had gone to and he said he would go and he took a week or more off, I don't remember the exact amount of time, and he came back with a bottle of medicine of some kind, I don't know what was in it. He said he went to the hospital and they took care of him or they helped him and he thanked me for sending him. After he came back, I did put him back to work and I told him if it happened again that was the end. It will be recalled that Norman accompanied Hagans on the latter's trip to Kansas City during the first weekend in October. Like Hagans, Norman was not allowed by Arnold Alper to work at Respondent's warehouse upon their return, for the remainder of the week. However, unlike Hagans, Arnold Alper did not seize upon this incident as a basis to discharge Norman. However, on Friday of the following week, October 24, the incident occurred which resulted in Norman's discharge, as described by Arnold Alper: A. October 24th he did not show up to work and I happened to have to go over to the Dr. Martin Luther King address, 1419, and there he was. It is a window sill, sort of a platform, a wooden platform, sound asleep. I was doing something at the desk and looking at some papers or something and suddenly I heard a bang and I turned and looked and Mr. Norman was laying on the floor either passed out or still sound asleep. Q. Then what happened? A. Then he came that evening to collect his check, which I gave to him and I told him I couldn't use him any more because I had told him when I had sent him to get dried out that was his last chance. Q. And did you tell him why you couldn't use him any more? A. I am certain I told him it was because he was drinking.32 12 Norman testified that he did not remember Friday, October 24: "It is a complete blank." 33 Testimony of Norman and Saddler. Norman reported for work the following Monday, October 27, but his timecard had been removed from the rack. He had a conversation with Arnold Alper which was overheard by employee Nathaniel Saddler (who had driven Norman to work). Arnold told Norman that he could not "put up with this," that business was slow and that "he was tired of him coming in drunk." 33 Analysis and Concluding Findings as to Charles Norman After a consideration of all of the evidence in the record upon this issue, I find and conclude that the motivating factor behind the discharge of Norman was his chronic alcoholism which rendered him undependable and unsuit- able for employment with Respondent. It is true, of course, that the Alper brothers had condoned Norman's condition for a substantial period prior to October 24. However, there is no substantial evidence here that they had condoned it only so long as the employee was not an active union adherent. Indeed, the only evidence in that regard is that Norman signed a card for Hagans, and the Alper brothers apparently counted him as a prounion vote in the election. There is no other evidence that Norman was actively engaged in the union campaign. Moreover, in contrast to the case of Hagans, Respondent had severely disciplined Norman in the past for the same conduct for which it finally terminated him. Furthermore, it was only a month or so previously that Arnold Alper had warned Norman that, if he did not improve, he would be terminated. Of course, the circumstances are rendered suspicious in the context of Respondent's union animus and some of the statements attributed to the Alper brothers to the effect that they would get rid of the active union members. However, membership in the Union does not render an employee immune from discipline, and, as the Board held in Klate Holt Company: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome con- certed activities does not, of itself, establish the unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful. (Citation omitted.)3 4 I therefore find and conclude that the General Counsel did not, by a preponderance of the evidence, prove that Respondent terminated Charles Norman in order to discourage union membership in violation of Section 8(aX3) and (1) of the Act, and I will recommend that the complaint be dismissed in this respect. 34 161 NLRB 1606, 1612 (1966); see also Kennedy & Cohen of Georgia, Inc., 218 NLRB 1175(1975). 460 ALPERS' JOBBING COMPANY II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with its interstate operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW i. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against an employee in order to discourage union membership among its employees, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of 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. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against Melvin Hagans by terminating his employment in the manner aforesaid, I will recommend that Respondent be ordered to offer him immediate reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., Inc., 138 NLRB 716(1962). In view of the nature of the unfair labor practices committed, which include a discriminatory discharge which "goes to the very heart of the Act," 3 5 I will recommend that Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.36 Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to :: N. L. R. B. v. Entwistle Manufacturing Cornpan,, 120 F.2d 532, 536 (C.A. 4. 1941). : N.L. R. B v. Express Publishing Company, 312 U.S. 426, 433 (1941). :'7 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, Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 7 The Respondent, Alpers' Jobbing Company, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to his hire or tenure of employment, or any term or condition of employment, in order to discourage membership in Teamsters Local Union No. 688, or any other labor organization. (b) Suggesting that employees who support the Union take a voluntary layoff to seek other employment. (c) Coercively interrogating employees concerning their union activities, including how they voted in an NLRB- conducted election. (d) Impliedly promising employees benefits in order to persuade employees to cease supporting the Union. (e) Threatening employees that it could unduly prolong and delay collective bargaining by engaging in prolonged court proceedings. (f) Threatening employees that it would shut down its facilities in order to avoid bargaining with the Union. (g) Creating an impression of surveillance of employees' union activities by informing employees that it knew how employees voted in an NLRB-conducted election. (h) Advising employees that it could manufacture or arrange a pretext to becloud the real reason for discrimi- nating against a prounion employee. (i) Threatening employees with discharge because of their union activities. (j) Threatening employees with discharge of other employees because of their union activities. (k) Creating an impression of surveillance by advising employees that Respondent was aware of their activities through listening to an intercommunication system. (1) In any other manner intefering with, restraining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Melvin Hagans immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records 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. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its St. Louis, Missouri, facilities copies of the attached notice marked "Appendix." 38 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily :'" In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint be dismissed in all respects other than those found to have been sustained in the above findings and conclusions. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 462