Repco Distributing, Inc.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Repco Distributing, Inc. and Glass Warehouse Workers & Paint Handlers, Local Union No. 206, International Brother000d of Painters and Allied • Trades, AFL-CIO. Cases 29-CA-7861 and 29-CA-7904 10 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 18 June 1981 Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 1 and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER ZIMMERMAN, dissenting in part. I dissent from my colleagues' adoption of the judge's decision with respect to two issues. I would find that the Respondent violated Section 8(a)(3) and (1) of the Act on 13 March 1980 1 by discharg- ing employee Robert Monsky because of his union ' In dismissing the allegation that Robert Monsky's discharge violated the Act, we agree with the judge that its timing—coming shortly after Monsky signed a union authorization card—raises a suspicion of a causal connection However, as the judge correctly points out, a suspicion is not proof Even assuming the Respondent's knowledge of Monsky's activi- ties, there is no evidence that the Respondent threatened employees, promised them benefits, or displayed any Intent to retaliate against em- ployees because of their union activities In these circumstances, we have at best an unsupported- inference that the termination was unlawful Moreover, the judge credits the Respondent's testimony that Monsky's work habits provided a legitimate basis for discharge Therefore, unlike our dissenting colleague, we are unwilling to engage in building Infer- ences upon speculation to arrive at the tenuous conclusion that the Re- spondent violated the Act We correct an error in the judge's discussion of the Monsky discharge incident The judge refers to the customer's order as calling for AS-2 "plate" glass The correct designation of the AS-2 glass is "sheet" glass 2 In adopting the judge's conclusion that the Respondent's 14 March 1980 questions to two employees as to what they knew about the Union do not constitute unlawful interrogation in violation of Sec 8(a)(1), we rely on the absence of evidence of hostility toward the Union, the gener- alized nature of the inquiries, the informal and noncoercive atmosphere in which the questions were asked, the absence of threats or promises ac- companying the questions, and the forthrightness of the employees' re- plies which indicates that no intimidation or coercion existed Rossmore House, 269 NLRB 1176 (1984) We note moreover that employee Butta- cavoli could not recall such an interrogation organizational activities. I would also find that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees Harold Baylis and Nick Buttacavoli about the Union. Monsky's Discharge The Respondent is a small, family-run automo- bile parts wholesale distributor. Other than compa- ny officers, managers, and supervisors, it has only 12 employees. In early 1980, employee Monsky called the Union to express an interest in gaining representation for the Respondent's employees. Around 4 March, Monsky invited employees to his home for an 8 March organizational meeting. On 5 March, Monsky told the Respondent's vice presi- dents Wachler and Mastrobuoni that he was inter- ested in forming a union and that he was con- cerned that unionization could affect adversely their positions with the Respondent as independent contractor-glass installers. Wachler and Mastro- buoni told him that as corporate officers their posi- tions would not be affected by unionizing and that Monsky should do whatever he liked, but that the Respondent's owner Grasso "would never go for it." At the 8 March meeting, Monsky and fellow employees Baylis and Buttacavoli signed cards au- thorizing the Union to act as their representative. On 10 and 12 March Monsky successfully solicited two other employees to sign cards. Further, Baylis testified that there was a great deal of discussion about the Union among the employees throughout the week after the meeting at Monsky's house. On the afternoon of 13 March the Respondent's general manager Lawlor informed Monsky that he was terminated. Lawlor told Monsky that the Re- spondent was dissatisfied with Monsky's work and that an incident which occurred earlier in the day was the last straw. This final incident involved Monsky's selection of the wrong type of glass for a customer's order. Monsky inadvertently pulled from inventory a safer, more expensive piece of safety plate glass instead of the safety sheet glass called for in the order. The error was corrected before the glass was sent. Grasso testified that Monsky was never more than a marginal employee who exhibited sloppy work habits, a lack of enthu- siasm, consistent tardiness, inadequate care for company property, and inattention to job responsi- bilities. This last incident involving the wrong glass allegedly prompted him to tell Lawlor to let Monsky go. With respect to Monsky's work record, the evi- dence is that he had initially worked for the Re- spondent for several months during 1978, left on All dates are in 1980, unless otherwise indicated 273 NLRB No. 23 REPCO DISTRIBUTING 159 his own initiative, and then was readily rehired by Grasso in February 1979. Monsky was given a $20- a-week raise in August 1979 as an inducement from Grasso to remain with the Respondent rather than accept an offer from a competing employer. Grasso had also repeatedly expressed satisfaction with Monsky's performance by promoting him to ware- house foreman, complimenting him in front of cus- tomers, reassuring him of his position with the Re- spondent, and, just a week before terminating him, telling him that he had done a good job while Grasso was out of town. The judge accepted as valid and legitimate the Respondent's justification for discharging Monsky. In recommending dismissal of the complaint, he also noted particularly the Respondent's lack of demonstrated union animus and of direct knowl- edge of Monsky's . involvement in protected union activities. Contrary to my colleagues, I find error in the judge's findings with respect to animus, knowledge, motivation, and, ultimately, the occur- rence of an 8(a)(3) violation. As discussed below, I would find that Grasso un- lawfully interrogated employees about the Union only a day after Monsky's discharge. Apart from this , evidence, Wachler and Mastrobuoni admitted the Respondent's union animus when they told Monsky that Grasso "would never go for" union- ization. This same encounter ,between Grasso and the Respondent's officers clearly established knowl- edge of Monsky's activities no later than 5 March. In addition, the small size of the Respondent's family-run business and the open in-plant organiza- tional activities of Monsky further support the in- ference that the Respondent must have known about those activities before his discharge. In reli- ance on the foregoing evidence, I would find that the Respondent clearly knew about and was op- posed to Monsky's union activity. I would further find that Monsky's general work performance and his error in selecting plate glass were blatant pretexts designed to mask the Re- spondent's antiunion discriminatory , motivation for discharging him. Although there is evidence that Monsky , , was not, always a model employee, the record shows that the Respondent. nevertheless considered him sufficiently valuable to overlook his deficiencies, offer encouragement and reassurance of his tenure, grant him increased responsibilities, and even increase his salary rather than risk his loss. The Respondent was willing to overlook whatever inadequacies Monsky may have demon- strated without so much as a disciplinary warning until Monsky's union activities began. It is far too improbable to believe that Monsky's mistake in pulling a more expensive, safer, higher quality piece of glass than called for in a customer's order, a mistake which was corrected before the glass was even loaded on the delivery truck and which re- sulted in no additional expense for either the Re- spondent or the customer, was such a drastic ,de- parture from or exacerbation of his previously con- doned conduct as to justify his precipitate dis- charge. The Respondent's sudden strictness with regard to Monsky's work betrayed its pretextual character. 2 Accordingly, I would find and con- clude that Monsky's discharge on 13 March violat- ed Section 8(a)(3) and (1). The Unlawful Interrogations On Friday, 14 March, the date after Monsky's discharge, Union Representative Gableman tele- phoned Grasso and told him that the Union repre- sented a majority of the Respondent's employees and that he wanted to negotiate a contract. .Ac- cording to Grasso's own account, he followed up on this phone conversation by asking employees Baylis and Buttacavoli what they knew about the Union. My colleagues have adopted the jiidge's recommendation to dismiss these alleged interroga- tions as noncoercive, isolated, and trivial in nature. I disagree. It is well established that questions probing into employees' union sympathies reasonably tend to coerce employees in the exercise of their Section 7 rights even absent accompanying threats of reprisal or promises of benefits. Here, according to the Re- spondent's own witness, the Respondent set out to discover which employees supported the Union simply by asking individual employees what they knew about the Union. Such inquiries , undoubtedly tend to inhibit employees' concerted activities. Par- ticularly within the context of this case, in a small 12-employee plant where only 1 day earlier the Re- spondent unlawfully rid itself of the leading union activist, these interrogations by the Respondent owner cannot be Characterized as either trivial or isolated. Therefore, I would find that Grasso's question's to Baylis and Buttacavoli violated Sec- tion 8(a)(1) and warrant appropriate remedial action. See Brooks Cameras, 250 NLRB 820 (1980). 2 Both Grasso and Lawlor testified about the wrong glass incident and the decision to terminate Monsky Their asserted concern about the safety aspects of such an error should It have occurred in reverse, i e, that a lower quality glass might be substituted for an order requiring the better quality product, seems particularly contrived in light of the cir- cumstances actually presented 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION , STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were tried before me on De- cember 17, 18, and 19, 1980, and April 1, 1981. 1 The charge in Case 29-CA-7861 was filed by the Union on March 18 and the charge in Case 29-CA-7964 was flied on April 4. Pursuant to these charges, a consolidated complaint and notice of hearing was issued by the Re= gional Director for Region 29 on May 30. In substance, the complaint alleges: 1. That, about March 13, a majority of the Respond- ent's employees , in a unit of service, production, and maintenance employees designated the 'Union as their collective-bargaining. representative. 2. That, about .March 14, the Union requested the Re- spondent to recognize and bargain with it as the repre- sentative of the employees. 3. That the Respondent diseharged its employees Phil Vito on March '12, Robert Monsky On March 13, and Greg 'Galano on March 18 because these employees joined or supported the Union. FINDINGS OF FACT I. JURISDICTION The Respondent admits the jurisdictional allegations of the complaint. Therefore, it is found that the Respondent is a New York corpOration located at 157A Grant Avenue, Islip, New York, where it is engaged in the wholesale distribution of automobile parts and related products. Annually, the Respondent purchases goods and materials valued in excess of $50,000 which are delivered directly to it in interstate commerce from States other than the State of New York. Accordingly, it is conclud- ed that the Respondent is an employer engaged in corn.- merce within the meaning of Section 2(2), (6), and (7) of the Act. - II. THE LABOR ORGANIZATION INVOLVED Although the status of the Union as a labor organiza- tion was denied, it is clear from the testimony of Charlie Gableman that it is an organization in which employees participate and which exists for the purpose of represent- ing employees vis-a-vis employers regarding wages, hours, and other terms and conditions of employment. It ' Unless otherwise indicated, all dates are in 1980 therefore is concluded that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The first contact between the Union and employees of the 'Company occurred in January or February 1980. In this respect, employee Andrew Agosta was approached by Union Agent Gableman and asked if he wished to join the Union Agosta then told Joseph . Grasso, the Re- spondent's owner, of this approach and the latter . re- sponded, ,"Don't worry about it." No further contact was made between the Union and the Respondent's em- ployees until early March 1980. In early March, Robert Monsky called the Union indi- cating his interest in having representation and arranged for a meeting at his home on March 8. On March 4 or 5, Morisky spoke with various employees inviting them to the 'meeting According to Monsky, around March 5 he spoke with Robert Wachler and Gaspar Mastrobuom in the shop, told them that he was interested in forming a unibn, and asked if this would jeopardize their positions with the Company. Monsky states that he asked them this because he understood that Wachler and Mastro- buoni were independent contractors who installed glass for the Company and he was concerned that under a union contract they would not be able to continue in that relationship Monsky states that they responded that a union would not affect them because they were officers of the Company and that they would "like to see the look on Joe's face because he would never go for it." Monsky also states that they said that he should do Whatever he liked. Since the above transaction involved Wachler and Mastrobuoni, it would be useful at this point to describe their status with the Company. It appears that both indi- viduals do glass installation work for the Company and in connection with their functions do not have any su- pervisory duties or responsibilities. However, both were made vice presidents by Grasso, about January 1, 1979,2 and Mastrobuom is the latter's nephew. According to Grasso, he made Wachler a vice president because he was very dedicated and loya1. 3 (Lawlor and Mastrobuoni were also made vice president at that time, no" doubt be- cause they were relatives.) Grasso also testified that the designation of Wachler and Mastrobuom as vice presi- dents did not bring them any added compensation or any equity 'in the Company, although he did have an under- standing that ultimately, when he left the business, the vice presidents would take over. 4 In effect, the arrange- 2 About January 1, 1979, Wachler, Mastrobuomi and Lawlor were made vice presidents, and Grasso's wife, Frances, became the Company's president Lawlor is concededly a supervisor within the meaning of the Act, and is Grasso's sonlin-law Frances Grasso is the Company's book- keeper 3 The testimony also establishes that Wachler owned his own truck, has his own company, and was assumed to be an independent contractor by Grasso 4 Although the General Counsel contends that Wachter and Mastro- buorn should be excluded from any unit found to be appropriate, it is noted that she does not allege that they are supervisors or agents of the Respondent - , 4. That, about March 14, and on _various other un- known dates e in March, the Respondent by Joseph Grasso ,and by other unknown agents and supervisors in- terrogated employees concerning their membership in, activities on behalf of, and sympathy for the Union. 5. That the Respondent's conduct, as heretofore al- leged, prevented the holding of a fair and free election and therefore 'a bargaining order is required. On the entire record, including my observation of the demean& of the witnesses and after consideration of the briefs filed, I make the following REPCO DISTRIBUTING 161 ments made in 1979 appear- to be a 'kind of insurance policy to provide for the continuation of this small family-owned business if and when Grasso left the Com- pany for health or retirement reasons. . • Getting back to the main plot, of the story, a meeting was held at Monsky's home on Saturday, March 8, which was attended by Union Agents Gableman and Bondi and by employees Robert Monsky, Harold Baylis, and Nick Buttacavoli. At this meeting where the union agents spoke of the benefits of unionization, the three employees signed cards authorizing the Union to repre- sent them , for collective-bargaining. purposes. However, subsequent to the meeting Baylis, after speaking with his wife, decided that he did not want to join the Union and on several occasions during the next week asked Monsky for his card back In this regard, Monsky's testimony was that he could not recall if Baylis asked for his card back but it could have happened. I credit .the testimony of Baylis that he did ask for his card back According to Monsky, about March 10 or 11 he asked Greg Galano and Phil Vito to 'sign union cards. These two emPloyees 'did sign such cards, Galano's being dated March 10 and Vito's card being dated March 12. There- fore, in toto, five employees signed cards for the Union.5 On Wednesday, March 12, Phil Vito was -told by Lawlor that he was discharged. According to Vito, about a week before, he . took- his truck to a gas station where; in addition to getting gas, he bought a pack of cigarettes which were put on the bill charged to the Re- spondent. He explained that he did not have change to buy the cigarettes but , that the attendant told him that they were put on the gas bill. Vito testified that he in- tended to pay the Company for the cigarettes when he got back. Although the, impression was given during direct examination that this event took place on the same day that Vito was discharged and that he tendered the money as soon as he returned to the Respondent's prem- ises, it soon became apparent that Vito "forgot" to repay the money for about a week and that on March 12, when Lawlor approached him, Lawlor accused Vito of charg- ing cigarettes on the Company's credit card and that it "was the principle of the thing" with which he was con- cerned. According to Lawlor, he had received a call from the gas station on the morning of March 12 pursuant to 5 As of March 14, when the Union made a demand for recognition, the General Counsel asserts that the following people comprised an appropri- ate collective-bargaining unit Harold Baylis, Ernie Phillips, Nick Butta- cavoll, Phil Vito, Greg Galano, and Robert Monsky The Respondent as- serts that the unit should include Robert Wachler, Gaspar Mastrobuoni. Andrew Agosta, Harold Baylis, Ernie Phillips, George Puleo, Nick But- tacavoll, Mike Reissman, but excluded Vito, Galano, and Monsky As to Vito and Monsky, the General Counsel asserts that they should be Included in the unit notwithstanding the Respondent's contention that they no longer were employed because she asserts they were Illegally dis- charged As td Galano and Vito, the Respondent contends that they es- sentially did office work whereas the General Counsel asserts that they were drivers With respect to Wachler and Mastrobuorn, the ; General Counsel contends that they should be excluded from the unit because they are vice presidents and because of their special relationship with the Company The General Counsel also objects to the Respondent's conten- tion that Reissman and Puleo should be Included in the unit as she argues that the former was a management trainee and that the latter was on ex- tended sick leave Finally, the Ge'neral Counsel takes no position as to Andrew Agosta which he visited the station and learned that Vito was making a habit: of charging cigarettes to the Respondent. He states that, when he confronted Vito about this, the latter 'admitted it Lawlor testified that he therefore de- cided to discharge Vito. In connection with the dis- charge of Phil Vito, I note here that there was no direct evidence that either Lawlor or any other company agent had knowledge of the fact that Vito had signed a union card earlier that day. It also is noted that-there was evi- dence that, on one other occasion when an employee was suspected of stealing, he was given the option of re- signing: • On March 13, Monsky was discharged. That morning Monsky, who is in charge of the Warehouse, received an order calling for "the delivery of plate glass designated as AS-2 for the side windOw of a bus. In this regard, there are various types Of glass used in motor vehicles, among them being -glass designated as AS:1 and AS-2. The former (AS-1) is required by Federal law for wind- shields, is clearly marked as such on -the glass itself, and is somewhat more expensive than AS-2 glass. AS-2 glass, on the other hand, can be used for any window on a vehicle other' than the windshield 6 Having received the order, Monsky went back to the warehouse to get the glass and, instead of pulling out a piece of AS-2 glass, pulled out a piece of AS-1 glass. According to Monsky, after pulling the glass Grasso yelled at him "Don't you know what you are pulling. You're pulling out' a more expensive piece of glass." Morisky states that in response he said that the glass was marked wrong, "so how was I supposed to know." 7 He then testified that he responded firther by saying that he did not have the other piece of glass, 'apparently meaning that he did not find the AS-2 glass in stock. At one point in Monsky's testimony he stated that Grasso said that he had pulled AS-1 instead of AS-2 glass, but he later testi- fied that Grasso did not say anything about AS-1 or AS-2 8 Monsky further testified that "it was not a big thing, as far as I was concerned.", According to Monsky, later in the day Lawlor told him that he was fired. Monsky states that Lawlor told him-that he was not pro- ductive, not happy, that the Company was family owned and he could not go further, and that Lawlor had unsuc- cessfully tried. to get raises for Monsky 9 Therefore, ac- 6 For safety reasons,' the National Highway and Safety Administration is empowered to adopt safety standards pursuant to which Items of motor vehicle equipment cannot be sold unless meeting safety standards 80 Stat 722 Pursuant to the statute, Motor Safety Standard No 205 was promulgated which deals with -glazing materials and requires, Inter aim, that such materials conform to the American National Standard "Safety Code for Safety Glazing. Materials for Glazing Motor Vehicles Operating on Land Highways" The American Standard Safety Code, in turn, des- ignates AS-1 glass as being4 suitable for windshields and AS-2 as not being suitable for windshields' Pursuant to the, statute, a violation of the law or, any attendant regulation can subject a company to a fine Monsly conceded, however, that AS-1 glass is clearly marked as such with the designation etched onto the glass 8 Early in his testimony, Grasso said that Monsky pulled out AS-2 glass rather than AS-1 glass which was called for by the order He later corrected himself and testified that it was AS-2 glass which was called for in the order and not AS-1 glass 9 According to Monsky he had been pressing the Company repeatedly over several months for a raise but was continuously put off 162 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD cording to Monsky's account Lawlor did not mention the glass incident when he was being discharged. While Lawlor acknowledges telling Monsky that he felt that Monsky was not happy with his work, he states that he specifically told Monsky that the glass incident was the final straw In this regard, Lawlor testified that, when Monsky pulled the wrong piece of glass, he ques- tioned Monsky about it and the latter said that he could not find the right glass. Lawlor further testified that he told Monsky, "This was not right," and that if he could not find it he should ask. According to Lawlor, he gained the impression from Monsky's response, and the fact that Monsky was supposed to be in charge of the warehouse and know its inventory, that Monsky did not • really care if he pulled the wrong glass which could, in the future, result in the wrong glass being pulled when AS-1 glass was required. As such, Lawlor concluded that Monsky showed a lackadaisical attitude and a disre- gard of his responsibilities, a conclusion which tends to be supported by Monsky's testimony that his pulling of the wrong glass was not a big thing as far as he was con- cerned. As part of the General Counsel's case, she adduced through Grasso that, prior to March 13, he considered Monsky to have had poor work and personal habits for a substantial period of time and had tolerated this. She also established that Monsky had received a raise in the summer of 1979 when he indicated that he was offered a job by a competitor. From this, the General Counsel argues that, if the Respondent considered Monsky to be a poor or indifferent worker for so long a period of time and tolerated this condition, then the only logical' inter- vening factor which could have precipitated the decision to discharge him was his union activities On Friday, March. 14, Gableman, On behalf of the Union, called Grasso on the phone and said that the Union represented 'a majority of the Company's employ- ees and that he wanted to negotiate a contract. ACcord- ing to Gableman, Grasso replied that he could visit the shop and speak with him on March 17 at 10 a.m. Later in the day, according to Grasso, he told Lawlor abbut the call and asked Baylis if he knew anything about the Union. AcCording Grasso and Baylis, the latter said that he signed a union card but had unsuccessfully - asked Monsky for its return. MSc:, in his pretrial affidavit, Grasso said that he also asked Nick Buttacavoli about the Union. However, Buttacavoli, in his testimony, could not recall such an interrogation, asserting instead that Grasso, without mentioning the Union, merely. asked if he was happy with his job and if he had any complaints. In connection with these incidents, I credit Grasso's tes- timony that lie questioned Baylis and Buttacavoli, after receiving the telephone call from Gableman. On March 17, Gableman and Bondi went to the Com- pany's premises only to discover that Grasso was not in. They then left and did not return. On March 18, the Union filed a petition for an election in Case' 29-RC- 4909 which was later withdrawn on June 30, 1980. Given normal mail delivery, the petition would therefore have been received by the Respondent on March 19 or 20. On March 18, - Greg Galano was discharged. As , will be recalled, Galano had signed a union authorization card on March 10. However, apart from signing "this card, it does not appear that Galano participated in any other union activities and there is no direct evidence that the Respondent's agents were aware that Galano had signed a union card.' Galano had been hired 'about 4 weeks before March -18 'and, according to the Respondent, he was hired as a pro- bationary employee to work mainly in the -office taking orders over the phone Galano maintains, however, that he was never told that he was on probation. 'He does concede that the major part of his work was in the office taking orders over the phone. He asserts, hoivever, that he also drove a good deal of the time. According to Galano, on March 18 Lawlor told him that he was being discharged Galano states ,that when he asked why, Lawlor . said that he was not the type -of person that the Company was looking for. He further states that when he asked if his layoff had anything to do with the Union, Lawlor paused and said, "I've heard some rumors" According to Galano, he then asked Grasso why he was fired and states that Grasso said that he was :not the right type of person for the job, that they were looking for someone with more schooling, and that Galano liked to be out on the road which was not chal- lenging enough for him. He also states that Grasso said something about sending out •a wrong piece of glass which Galano denied ever happening. . According to Lawlor, he and Grasso decided on March 18 to discharge Galano because, in their opinion, he was not salted for the job that he was hired to do. In this respect, they testified that Galano 'did not have a good telephone personality, that he was 'too rough :on the phone, and that since he was hired mainly to take calls from customers, Galano was not sufficiently useful to the Company. Lawlor teStified that he had discussed this problem with Grasso ,prior to March 18 but that, when Galano did not improve, it was decided to let him go. As to his conversation with ,Galano on March 18, Lawlor conceded, after being shown his pretrial affida- vit, that Galano did ask him if his discharge had any- thing to do with the Union. Lawlor asserts that he an- swered "no" to this inquiry. It appears from, the testimony of Agosta that, after Monsky was fired, the Union established a picket line at the Company's premises and that Monsky participated in that picketing. According to Agosta, Grasso, on one oc- casion, on seeing Monsky on the picket line, said that he did not understand why Monsky would "go that route, join the Union, and that the "guys didn't come to him and'. . . try to work something -out before setting up this union." It is noted that apart from these statements made to Agosta and the two instances . when Grasso questioned employees as described above, there was no other evi- dence that any other representatives of the Respondent's management communicated to any employees about the Union much less expressed, in any way, any intention to retaliate against employees who joined or supported the Union. REPCO DISTRIBUTING 163 IV. ANALYSIS In my opinion, the critical issue in this case is whether the Respondent illegally discharged Robert Monsky, Phil Vito, and Greg Galano because of their union activities or whether they were discharged for other reasons. In cases such as this, it must first be ascertained whether the General Counsel has made a sufficient showing "to sup- port the inference that protected activity was a `motivat- ing factor' in the employer's decision," which, if shown, requires the Respondent "to demonstrate that the same action would have taken place even in the absence of protected conduct." Wright ' Line, 251 NLRB 1083 (1980).1° It is self-evident that the timing of the three discharges (Vito on March 12, Monsky on March 13, and Galano on March 18), occurring shortly after they signed union cards, does suggest, at the very least, a suspicion that a causal connection exists. Nevertheless, suspicion is not the same thing as proof and while timing may justify an inference of antiunion animus, inquiry must be made into all of the circumstances leading up to the discharges in- cluding, inter aim, whether the employer had knowledge of the union activities, other evidence union animus, whether any intervening transactions occurred which may have caused the discharges, and whether the rea- sons asserted by the employer were pretextual in nature or were contrary to its normal custom and practice. In the present case, the General Counsel contends that the Employer had knowledge of its employees' union ac- tivities through a number of transactions which oc- curred, in addition to the fact that this was a small shop." The first of these transactions involves the con- versation between Agosta and Grasso wherein the former, in January or February, told the latter that he was approached by the Union and where Grasso replied, "Don't Worry about it." Nevertheless, despite the fact that Grasso became aware of this contact a month or two before the discharges in question, it also appears that, after this single contact between the Union and Agosta, no further organizational efforts were made until early March when Monsky and other employees came in contact with the Union. Therefore, as the Union was not engaged in organizing activities from its first approach to Agosta until March, and as no other employees had met with the Union during the intervening period, it can only be said that the Employer had knowledge of the first tentative contact between the Union and Agosta Ac- cordingly, it does not seem to me that the conversation between Agosta and Grasso can, of itself, be the basis for concluding that the Employer had knowledge of the sub- sequent organizing efforts by .the Union or the later ac- tivities of Monsky, Vito, and Galano. Moreover, the re- 10 It is my understanding that although the criteria set forth in Wright Line provides a frame work for analyzing these Issues, it does not purport to alter the longstanding rule that the ultimate burden of proof rests with the General Counsel " In her brief, the General Counsel cites Tayko Industries, 214 NLRB 84, 87 (1974), and Wal-Mart Stores, 201 NLRB 250 (1973), for the propo- sition that in a small shop it is "likely that the employer had observed the activity in question " For an extensive discussion of what has been called the "small plant doctrine." see American League, 189 NLRB 541, 548-549 (1971) sponse given by Agosta would appear to manifest a sin- gular lack of concern by Grasso about the Union's con- tacts with his employees. The second transaction relied on for establishing knowledge of union- activities prior to March 12 was Monsky's conversation with Wachler and Mastrobuoni about March 5. As noted above, Monsky testified that he told these two men that he was interested in forming a union. He also testified that they replied that he should do as he liked and that they would "like to see the look on Joe's face because he would never go for it." The next question is whether their knowledge of Monsky's in- terest in the Union can be imputed to the Respondent. In this regard, although it was conceded that these two in- dividuals had the titles of vice president and that Mastro- buoni is Grasso's nephew, they nevertheless did installa- tion work for the Company and had no supervisory or managerial functions. Indeed, the General Counsel does not contend that either was a supervisor or agent of the Respondent As such, I do not believe that I can impute, by virtue of agency, their knowledge of Monsky's activi- ties to the Respondent, although It may be plausible that as both had a potential equity interest in the Company, and because Mastrobuom was a relative, that they men- tioned this conversation to Grasso. Another element to be considered is whether, apart from the timing of the discharges, there is other evidence manifesting an intent to retaliate against employees who either joined or supported the Union. In this respect, Grasso by his own admission questioned two employees as to what they knew of the Union after receiving a demand for recognition from Gableman. Grasso also does not deny that sometime after Monsky was dis- charged and was seen picketing at the employer's prem- ises, he stated to Andrew Agosta that he did not under- stand why Monsky would "go that route, join the Union" and that the "guys didn't come to him and . . . try to work something out before setting up this union." Nevertheless, the evidence herein does not disclose that the Respondent's management talked or communicated about the Union with employees on any other occsions and the record is devoid of any evidence disclosing that the Employer either threatened employees or promised benefits to them. In my opinion neither the questioning of employees about the Union nor the statements made to Agosta in the context made were manifestations of an intent to retaliate. In short, it is my opinion that the evi- dence adduced by the General Counsel to suggest union animus on the part of the Respondent is, apart from the element of timmg, decidedly weak and unpersuasive. With respect to Vito, the evidence establishes that he signed a union card on the morning of March 12 and was discharged later on that day. In this case there is no direct evidence of any knowledge on the part of the Company that he signed this card and there is no evi- dence that any supervisors or agents of the Respondent were in the vicinity when the card was solicited, signed, or returned to Monsky. It established that, about a week prior to his discharge, Vito charged a pack of cigarettes on the Company's credit card when he purchased gasoline for the truck he 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was driving. It also was established to my satisfaction that Lawlor became aware of this on the morning of March 12 and that, when he confronted Vito with an ac- cusation of misusing the credit card, Vito admitted it, whereupon Lawlor discharged him, stating that it was the principle of the thing with which he was concerned Although Vito testified that he intended to immediate- ly repay the Company, he conceded that it slipped his mind for about a week and that he did not tender the money until after being confronted by Lawlor on March 12. Whether Vito did or did not intend to repay the money is somewhat irrelevant because his failure to make timely repayment would clearly have led Lawlor to believe that Vito was making personal use of the Company's credit card. The General Counsel argues that disparate treatment was shown in Vito's case as there was evidence that an- other employee who was suspected of stealing was given the option of quitting. However, it is my opinion that there is not much distinction between a forced resigna- tion and a discharge and, to the extent that the past prac- tice of this Employer may serve as a guide, the evidence concerning the oiher employee suspected of stealing tends to support the Respondent's contention that it does not retain employees who are believed to have converted company property or assets. In the case of Vito my function is only to determine whether his discharge was motivated by his support for the Union and not whether his discharge was for "good cause" As it is my opinion that on March 12 the Re- spondent discovered that Vito had charged his personal effects to the Company and also because this had not been reported for about a week, the Company had a rea- sonable basis for believing that Vito was being less than totally honest in his dealings with the Company. It there- fore is concluded that this transaction rather than Vito's execution of a union authorization card on March 12 was the sole motivating factor in the decision to discharge him. Accordingly, it is recommended that the complaint, insofar as it alleges that Vito was discharged for dis- criminatory reasons, be dismissed As in the case of Vito, there is no direct evidence that the Respondent was aware of Monsky's union activities although the circumstantial evidence supporting such an assertion is somewhat stronger. Unlike the situations of Vito and Galano, the evidence discloses that Monsky was the most active employee supporter of the Union, having contacted the Union and solicited its support among the other employees." Having demonstrated that the Respondent viewed Monsky as a poor and indifferent employee for a sub- stantial period of time before his discharge, the General Counsel contends that the only intervening event which can explain Monsky's sudden discharge on March 13 was his union activities which commenced in early March However, the record herein also discloses another inter- vening event which the Respondent asserts was the last straw and which caused it to terminate Monsky's em- ployment. 12 See W W Grainger, Inc , 255 NLRB 1106 (1981) As noted above, on the morning of March 13 Monsky had to take out of the warehouse's inventory a piece of AS-2 glass for delivery. Instead of pulling the AS-2 glass, he pulled a pane of AS-1 glass which provoked a confrontation with Grasso over this mistake In response, Monsky explained his actions by asserting alternatively that he could not find the right glass and that the glass was wrongly marked. According to the Respondent, since Monsky was in charge of the warehouse where the glass was kept and therefore was expected to be aware of its inventory, his mistake and his explanations for the mistake indicated a lackadaisical attitude toward his job which could, in the future, lead to a serious problem be- cause Federal regulations require the use of AS-1 glass for vehicle windshields and Monsky's lack of responsibil- ity might result in the wrong glass being , delivered and installed in violation of Federal law and thereby risk the imposition of a fine. Indeed, the testimony of Monsky that the pulling of the wrong glass was not a big thing as far as he was concerned tends to support the Respond- ent's view that, from his actions on March 13, it came to realize that Monsky not only was a poor employee, but that he was indifferent to his responsibilities. Given the lack of evidence showing union animus on the part of the Respondent, together with the existence of an intervening event which plausibly could have served as a sufficient reason for discharging him, it is concluded that the evidence, on balance, is insufficient to establish that the Respondent discharged Monsky be- cause of his activities or support for the Union I shall therefore recommend that this allegation of the com- plaint be dismissed. I also conclude that the discharge of Galano was not violative of the Act Galano had been hired approximate- ly 3 to 4 weeks prior to his discharge on ,March 18 and much of his time was spent answering telephone calls in the office. Apart from signing a union card on March 10, Galano did not participate in any other union activities. Also, although the Respondent was clearly aware of the Union's organizational efforts by March 18, there is no direct and little circumstantial evidence, aside from the timing of his discharge' and the size of the shop, to show that the Respondent had knowledge that Galano had signed a union card or otherwise supported the Union. Given my opinion that there was insufficient evidence of union animus and the fact 'that I have credited the Re- spondent's reasons for discharging Vito and Monsky, I shall do the same in the case of Galano's discharge Therefore, it is concluded that the Respondent terminat- ed the employment of Galano because it felt that he was not sufficiently good at the job for which he was mainly hired to perform, namely, dealing with customers on the phone. In view of my conclusion that the Respondent did not violate the Act by discharging the three employees, it is clear that the refusal-to-bargain allegation of the com- plaint must also be dismissed as it cannot be said that, even with two instances of interrogation, the Employer's conduct prevented the holding of a fair and free election. NLRB v. Gissel Packing Co, 393 U.S 575 (1969). REPCO DISTRIBUTING 165 Finally, although the evidence herein discloses that Grasso asked at least one, and perhaps two, employees if they knew anything about the Union, after he received the telephonic demand for recognition from Gableman, it is my opinion that this was isolated, noncoercive, and trivial in nature. Accordingly, I am of the opinion that it would not effectuate the purposes or policies of the Act to require the Respondent to remedy this allegation. Bath Electrical Systems, 233 NLRB 762 (1977). CONCLUSIONS OF LAW 1 The Respondent, Repco Distributing, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Glass Warehouse Workers & Paint Handlers, Local Union No. 206, International Brotherhood of Painters and Allied Trades, AFL-CIO is a labor organization • within the meaning of Section 2(5) of the Act 3. The Respondent has not engaged in any conduct in violation of the Act requiring remedial relief. On these findings of fact and conclusions of law and on the entire record,- I issue the following recommend- ed" ORDER It is ordered that the complaint be dismissed in its en- tirety " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses