D. H. Martin Petroleum Co.

D. H. MARTIN PETROLEUM CO. 547 D. H. Martin Petroleum Co. and General Chauf- feurs, Sales Drivers and Helpers, Local 179, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 13-CA-24981 23 June 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 11 December 1985 Administrative Law Judge Lowell Goerlich issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, i and the General Counsel filed an an- swering 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 briefs and has decided to affirm the judge's rulings, findings 2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, D. H. Martin Petroleum Co., Elgin, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent also filed a motion to reopen the record to admit into evidence the 25 November 1985 decision of the Illinois Department of Employment Security Board of Review, affirming a referee's decision, which found that employee Bailey "voluntarily left work without good cause attributable to the [Respondent]" and therefore was disqualified from receiving unemployment benefits The Respondent requests in the alternative that the judge take judicial notice of the decision The Gener- al Counsel opposes the Respondent's motion In view of the judge's ad- mitting into evidence the 14 June 1985 referee's decision, which the judge noted had been appealed , and because the Board of Review's deci- sion constitutes previously unavailable evidence, we grant the Respond- ent's motion to reopen the record We do not find such decision control- ling, however, because the state agency's determination was rendered under a statute with different definitions, policies, and purposes from the National Labor Relations Act Moreover, our decision , as well as that of the judge, "must be based upon an independent consideration and evalua- tion of the evidence received in this unfair labor practice proceeding " See Garrison Valley Center, 277 NLRB 1422 (1985) ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In agreeing with the judge's finding that the General Counsel estab- lished a prima facie case, we find it unnecessary to rely on the judge's finding that "[the Respondent's president] Martin disclosed a disposition to engage in chicanery to foster his own interests " Douchan Pouritch, Esq., for the General Counsel. Kenneth R. Dolan, Esq. (Pope, Ballard, Shepard & Fowle, Ltd.), of Chicago, Illinois, for the Respondent. Roger N. Gold, Esq. (Gold & Polansky), of Chicago, Illi- nois, for the Charging Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge filed by General Chauffeurs, Sales Drivers and Helpers, Local 179, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union or Local 179) on 12 April 1985 was served on D. H. Martin Petroleum Co. (the Respondent) by certified mail on 16 April 1985. A complaint and notice of hearing was issued on 22 May 1985. In the complaint, as amended, it was alleged that the Respond- ent "discharged and/or failed to recall employee William Bailey" in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act). The Respondent filed a timely answer in which it denied that it had committed the unfair labor practices alleged. The case came on to be heard on 29 August at Chica- go, Illinois. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine wit- nesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT At all times material herein the Respondent, a corpora- tion with an office and place of business at 210 South Grove, Elgin, Illinois (the Respondent's facility), has been engaged in the wholesale distribution of petroleum products. During the ending 31 December 1984, a representative period, the Respondent, in the course and conduct of its business operations described above, purchased and re- ceived at its facility products, goods, and materials valued in excess of $50,000 from other enterprises, in- cluding Standard Oil of Indiana, located within the State of Illinois, each of which other enterprises had received the products, goods, and materials directly from points outside the State of Illinois. The Respondent is now, and has been at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. 280 NLRB No. 58 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES William Lowell Bailey was employed by the Respond- ent in January 1977. He worked as a "transport driver and semi-driver." Donald Howard Martin, the president of the Respondent, described Bailey as a "very talented individual" who did a "lot of extra work" " such as con- crete work, carpentry work, he just did about every- thing, mechanical work, he worked on the trucks." Ad- ditionally, Martin testified that he and Bailey were "friends." Bailey had been a member of Local 330 in Elgin, Illi- nois, and in 1979 became a member of the Charging Party, Local 179. Martin was also a member of Local 179 as was his father, Harold Martin. Martin had been a union negotiator for approximately 6 years ; he had nego- tiated contracts with Standard Oil, which later became Amoco Oil. Bailey became a member of Local 179 under these cir- cumstances. In 1979 Bailey, who was making a delivery into O'Hare Field, Amoco terminal, was stopped by two "union officials." They informed him that he could "not pick up for D . H. Martin Petroleum Company as he had no contract." Thereafter Bailey received a Local 179 union card. Martin had made an arrangement with Emmitt McCana, secretary/treasurer of Local 179, whereby Bailey was issued a union card.' Union dues were paid by the Respondent. Nevertheless, no labor agreement was ever signed between the Respondent and Local 179.2 Sometime in January 1984 a meeting of employees was convened in Martin's office at which Bailey was present. Martin told Bailey that he would be assigned to night and weekend calls in the future. Bailey "got mad" and said he "had other things . . . to do at night."3 Bailey told Martin he would not "do this" and that he "would go down to the union to see if [he] had to do this."4 Paul Swanson, who lived within two blocks, agreed to take on Bailey's calls. Thus the incident ended. Never- theless, on 16 January 1984, Bailey contacted McCana at Local 179 and said that he wanted to file a grievance. After he explained to McCana for whom he worked McCana told him that he did not think that "there would be any need to file a grievance. He would call Don on the phone and talk with him." Bailey asked for a copy of the union contract. McCana said that there was "none available." About 17 January 1984 when Bailey arrived at work, Martin called Bailey into his office and said, "You and I should clear the smoke in the air." Bailey then related ' Besides Bailey the Respondent employed Howard Lind, a six-wheel truckdnver Paul Swanson , a utility/dnver/warehouseman, Mark Dicker- son, and office manager, and Bard Spndler, a salesman Lind was also put in Local 179. 2 Martin testified - "I went to Teamsters 179 because I knew the indi- vidual . by the name of Emmitt McCana, who I had sat on a union bargaining committee with numerous times, and I thought that I had a workable relationship with him , and that is why I went to him with my problem " 8 Bailey had a young baby that needed care at night and he also played in a band "sometimes on weekends." * Bailey testified "I was supposed to take one week of night calls which was to go down, use a beeper and check in on the recorder for any deliveries to be made " that he had spoken to Locals 179, 705, and 330 and asked Martin whether McCana had contacted him. Martin an- swered that McCana had called him. Bailey further in- formed Martin that he had lost his pension and that Howard Lind, another employee, had told him that Martin had said that he was fired. Further testifying Bailey said, "Don told me that the unions wasn't going to run that place. a He says they was no good and I knew it. He went on to say that if these problems persists he was going to sell the trucks, he was going to have K.T.I. do his hauling, that I would not even have a job." At the end of the conversation , addressing Bailey, Martin said, "[J]ust go do my work." In October or November 1984 Bailey said to Martin that "if he couldn't start making Howard do some of this work and help me around here when I needed some help that I was going to see the union again. The only thing, he says do what you want, those unions are no good, if you are going to do this you might as well pack your bags." On 14 March 1985 Bailey and Martin had an encoun- ter over whether Bailey would drive a truck after his regular hours. According to Bailey, Martin asked him to haul a load of fuel. Bailey replied that he would not haul the fuel that night. He said, "I was too tired, my wife had been sick all night, I had only slept maybe an hour." Bailey also said that this customer only called in when somebody else would not haul the fuel and he was tired of working 15, 20 hours a day when no one else did. The conversation ended with Martin saying, "If [he] didn't want to haul it don't bother to come back." On cross-examination Bailey admitted he "got mad," that Martin said he was not interested in the Company, that Bailey should not worry about the load,6 that Bailey said that he was going to "straighten out the office man- ager about taking these messages for deliveries the same night," and that Martin did not say he was fired.? Bailey further testified that Martin told him on the radio that "somebody else was going to haul the load." Lind hauled the load. After Bailey punched out he phoned Local 179 but was unable to make contact until 18 March 1985. On Friday, 15 March 1985, Bailey filed an unemploy- ment compensation claim in which he stated that he had been discharged on 14 March 1985.8 He also called the Labor Board. 5 Martin expressed this same attitude when he said in his testimony "I said, 'There wasn't nobody,' meaning Vince [Vince Crnkovic, president of Local 179] that was going to tell me who I was going to hire and fire" 8 This statement does not appear in Bailey's affidavit given to the Board ' Martin testified that, when he broached the subject of hauling to Bailey, Bailey responded "Well, those son of a bitches are always doing this to me, calling in late Goddamn them , I want to teach them a lesson I am not going to deliver the oil ." Martin said, "Apparently you don't need the extra work " Bailey answered, "I guess I don't." In the meantime Howard Lind walked past Martin's office. Martin offered the job to him and he accepted Martin then told Bailey "not to worry about the load that had to go to Dante Trucking "' that Lind would take it. Martin denied the he told Bailey to take the load or he was through or words to that effect 8 Bailey testified that the reason he thought he was discharged on 14 March 1985 was because Bailey had said to him, "Don said to me if I Continued D. H. MARTIN PETROLEUM CO. On 18 March 1985 Bailey went to Vince Crnkovic'sa office and told him that he wanted to file a grievance, which he did. According to Crnkovic, Bailey told him that Martin had fired him because he "refused to take an- other load or make another delivery." Crnkovic phoned the Respondent but Martin was not present. Martin returned Crnkovic's call on the same day, 18 March 1985. Crnkovic related to Martin that Bailey had told him that "he was fired because he re- fused to take another load." Martin replied that he had not fired Bailey and that Crnkovic should send Bailey to him; that "they were real good friends"; "that he shouldn't have come to the union"; and that "[he] can work it out." 10 After his conversation with Martin, Crnkovic was un- successful in contacting Bailey until 21 March 1985. He told him that Martin had said to "send him back over there and that he would put him back to work, he would talk to him about it, they were friends"; that he had not fired him. Bailey called Martin immediately and told him that Crnkovic had informed him that Martin had asked him to call him and report back to work. According to Bailey,1' Martin responded, "[Y]ou just don't work here didn't haul that load don't bother to come back " Thereafter Bailey did not return to work Crnkovic was president of Local 179. 10 Martin's version of the conversation differed in some respects from that of Crnkovic Martin told Crnkovic that Bailey had not shown up for work or called him, that he was amazed at Bailey's ranting and raving and poor attitude toward a customer ; that he had received a notice that Bailey was applying for unemployment compensation , which notice indi- cated that he had been fired ; that he had never fired Bailey, and that he did not "understand what is going on with him " Whereupon Crnkovic asked Martin if he minded talking about the situation "with Weinke from Teamsters Local 330 and myself and Bailey " Martin answered, "Sure, I will talk to anybody about the problem , but I am not sure it is going to do any good now This thing has gone too far " Crnkovic reminded Martin that the Respondent had not signed a contract with the Union Martin also testified that he told Crnkovic, "I was pissed off at Bailey because we had had a friendship which I valued and I didn 't understand his actions, why he hadn't, why he knew that a customer that was valua- ble to our company, why he would talk like that and why he would have such a negative attitude towards that customer and also, why he would violate company policy and not call in " In another part of his testimony Martin testified that he told Crnkovic that "the likelihood of [his] rehiring him was very remote." (Emphasis added.) i i Martin's version of the conversation was as follows. I asked Bill what the hell was going on, I didn 't understand his actions, I didn't understand how he could talk about Dante Truck- ing, an important, a potentially, a very important customer to our company the way he did. I said I didn't understand his attitude to- wards it, I didn't understand why he didn't report for duty on Friday, why he didn't call me at home, and why he hadn't reported to duty on Monday And I said, "I don't understand what you are trying to do It doesn't make sense " And then on top of it I did mention that he had, that a notice from the unemployment people had, I had received a notice that Monday saying that he was fired on March 14th, that Thursday, and in fact I never fired him on March 14th And I gave, at that time I gave Bill an opportunity in that con- versation to tell me why he was doing what he was doing and even apologize if he so wished [T]here was enough lapse in the conversation for somebody to say hey Don, I made a mistake, I have a problem After giving him the opportunity to say something and not hearing any response, that was kind of the straw that broke the camel's back, and I said, "Bill, there is just not a job down here at D H Martin Petroleum for you And that I want you to turn in your keys and 549 anymore; I know you went to the union, I talked to them." Martin also said he had received papers for un- employment compensation that day.12 On 21 March 1985 Bailey, after talking to Martin, called Crnkovic and informed him that he had talked to Martin and Martin had fired him. Thereafter Crnkovic again called Martin and reminded him of the prior talk and that "there shouldn't be any problem that you would put him back to work." Crnko- vic described the rest of the conversation: At that point Don Martin got very irate. He says no goddamned union is going to tell me what to do. He says the man is fired. And he says that he wasn't going to put him back to work. He says if he didn't come down to the union hall he would have put him back to work. And we got into an argument. I told him I was going to come over there if I had to and picket his place. He said he was also going to sell his trucks if he had to. With that I don't know if he hung up or I hung up.1 s Martin testified that he made his "absolute final decision" to discharge Bailey in his conversation with him on 21 March 1985, "when he didn't react to me and say, when he didn't talk to me and say, Don, I have a problem, or apologize and say I want my job back or anything else, that is when my final, my absolute final decision was made. . . . [I]t was at the end of the conversation." Martin further testified that he waited until 21 March to fire Bailey because "[t]here was still an opportunity, maybe a very remote opportunity, for me to rehire him, not rehire him because actually officially I had never fired him until the 21st, but there was still a remote pos- sibility that I would rehire him." (Emphasis added.) The Respondent addressed the following letter dated 22 March 1985 to Bailey: During our conversation last Thursday afternoon, 14 March 1985, you displayed to me an apparent lack of concern for the betterment of our business your uniforms and any personal effects " And I asked him to call the office and tell me when he was bringing the stuff down, he had a paycheck to pick up and I said I wanted to be there when he brought the stuff back. In other testimony Martin testified that he told Bailey , "I don't under- stand why you would go to the unemployment insurance people and tell them that you were fired when in fact, I never fired you on Thursday, the 14th . [T]here was a pause . I was hoping that Bill would come back and say Don , I got a problem, whether it is marital or family or what, explain the situation to me, maybe even apologize so I could give him some kind of room for, some kind of excuse to hire him back." (Emphasis added) iz The sentence, "I know you went to the union," does not appear in Bailey's affidavit is Martin's version of the conversation was as follows. "'Martin we got to get this problem with Bailey straightened out Tell you what you are going to do You are going to rehire Bailey and you are going to use the time that he has had off as a suspension or disciplinary type situation and you are going to put him back to work.' And he said to Vince, 'There is no fucking way that I am going to put Bailey back to work. No son of a bitch is going to tell me how to run my business and who I am going to hire and who I am going to fire' And I hung up on him." When Crnkovic threatened to put pickets around his facility Martin responded, "I hope you carry the biggest goddamned sign because you will be the first son of a bitch that I run over " 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and service to our customers. It is in light of this reaction and your violation of company policy by failing to report to work since 15 March 1985, that your employment at D. H . Martin Petroleum Com- pany has been terminated effective 21 March 1985. I will expect keys, uniforms, and all other properties belonging to the company to be returned prior to picking up your final paycheck . At that time, I will also give you a form explaining the conversion of our hospital group plan to an individual policy. You have accrued benefits in our pension plan also. There are options available through this plan that will need to be discussed in the near future. On 3 May 1984 employees were given the following statement (in part) with their paychecks: "In the event that an illness or emergency arises, the employee is re- quired to notify Don Martin, owner, or Mark Dickerson, office manager, personally. The employee is expected to explain the situation, when he will return to work, and any special instructions for deliveries that must be made in his absence." Bailey had violated the policy several times prior to his discharge. The last time was in "March of `84." Martin testified that he did "understand " on 21 March 1985 why Bailey had not reported to work , i.e., because Bailey "claimed that he was fired." 14 Martin testified that he had received the unemploy- ment compensation notice "about noon" on Monday, 18 March 1985. On 14 June 1985 a referee for the State of Illinois De- partment of Labor, Department of Employment Securi- ty, Division of Unemployment Insurance found , "Based on the available evidence the Referee finds that the Claimant left work voluntarily. The Claimant's testimony that he was discharged lacked sufficient credibility to overcome the direct testimony offered by the Employ- er's witness." The referee's decision was appealed 10 July 1985.15 Conclusions and Reasons Therefor "[T]he General Counsel has the initial burden of show- ing by a preponderance of the evidence that protected conduct was a `motivating factor ' in the decision to dis- charge the employee.... Once that showing is made, the NLRB has held . . . that the burden shifts to the em- ployer to show that it would have discharged the em- ployee even if the employee had not engaged in protect- ed activity." Blue Arrow, Inc. v. NLRB, Docket Nos. 82- 1836 and 82-1955, mem. 725 F.2d 682 (6th Cir. 1983). See also Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The General Counsel maintains that Bailey was dis- charged because he took a grievance against the Re- spondent to the Union. These facts support her prima 14 Martin testified, "I received on the 18th, I received a notice from the unemployment insurance people indicating that Bailey was applying for unemployment insurance And on that form it stated that he had been fired So I assumed he quit " Martin also admitted that Crnkovic told him that Bailey had said he was fired on 14 March 1985 la The referee's decision has been given the appropriate probative weight in accordance with the Board 's decisions. facie case: (1) By making an arrangement with friend McCana, Local 179's secretary-treasurer, to pay Bailey's union dues, Martin disclosed a disposition to engage in chicanery to foster his own interests . (2) Martin Mani- fested a displeasure with Bailey's union activities when in January 1984 Bailey approached the Union with a griev- ance, commenting that "the unions wasn't going to run that place. . . . [T]hey was no good . . . . [I]f these problems persists he was going to sell the truck[s], he was going to have K.T.I. do his hauling, and that [Bailey] would not even have a job."16 (3) In October or November 1984 when Bailey indicated to Martin that he was "going to see the union again," Martin responded, "[I]f you are going to do this you might as well pack your bags." 17 (4) On 14 March 1985 after Bailey in- formed Martin that he would not haul a load after his normal workday, Martin told Bailey that "if [he] didn't want to haul it don't bother to come back." (5) Bailey thought that he was discharged and did not "bother to come back" but instead went to the Union , called the National Labor Relations Board, and filed an unemploy- ment compensation claim alleging that he had been dis- charged on 14 March 1985. (6) Bailey reported to the Union on 18 March 1985 that he had been fired because he refused to take another load or make another deliv- ery. (7) Crnkovic, the Union's president, informed Martin on 18 March 1985 that Bailey reported that he had been fired because he had refused to take another load. (8) Martin replied to Crnkovic that he had not fired Bailey and that he should "send him back over," and that they were "real good friends," that he "shouldn't have come down to the union," and that he "can work it out." (9) When Bailey contacted Martin, he told Bailey that he did not work there anymore and that he knew that he had gone to the Union. 18 (10) Martin in a subse- quent conversation with Crnkovic said, "[N]o god- damned union is going to tell me what to do" and if Bailey had not "come down to the union hall he would have put him back to work." The foregoing evidence offered by the General Coun- sel supports the General Counsel 's prima facie case. Thus, the Respondent's burden required it to show that it would have discharged Bailey even if he had not taken his grievance to the Union. To sustain this burden the Respondent asserts that Bailey was discharged for lack- ing concern for the betterment of the Respondent's busi- ness as was manifested by his attitude on 14 March 1985 and his failure to report for work after 15 March 1985, which actions violated the Respondent's policy. Not only does Martin insist in his testimony that he did not discharge Bailey on 14 March 1985 but nothing appears in his testimony which supports a finding that he ever intended to discharge Bailey for his alleged miscon- duct on 14 March 1985, notwithstanding the fact that Bailey thought he had been discharged. Thus it would appear that some subsequent event or events must have " This testimony was not denied by Martin. u° Martin did not deny this testimony 18 It is clear from Martin's own testimony that he knew Bailey had contacted the Union, for Martin testified that Bailey said to him, "Don, Vince from the Union told me to call you " D. H. MARTIN PETROLEUM CO. 551 occurred, which motivated Martin to discharge Bailey on 21 March 1985. These events occurred: (1) Martin failed to report for work or call in after 14 March 1985. (2) Bailey filed a claim for unemployment compensation alleging that he had been discharged on 14 March 1985. (3) Bailey lodged a grievance with the Union. Of these events, Martin in Bailey's discharge letter latched on to No. 1. No. 2 for the first time was men- tioned in the Respondent's brief, page 52, as a "legitimate nondiscriminating reason for firing Bailey," i.e., Bailey's "filing of a false unemployment claim." At the time Bailey's discharge letter was written Martin knew that Bailey had failed to report to work or call in because Bailey thought he was fired.19 Thus if Martin were credited, Bailey was actually discharged be- cause he thought he was discharged. For an employer to discharge "a very talented" employee whose friendship he had valued because he failed to report to work in that he thought that he was discharged is incredible and does not withstand scrutiny. NLRB v. Griggs Equipment, 307 F.2d 275, 278 (5th Cir. 1962); NLRB v. Dant, 207 F.2d 165, 167 (9th Cir. 1935). I find that Martin concealed the truth as to why Bailey was discharged .20 Thus, I conclude that the reasons advanced for firing Bailey were pretext and that he would not have been fired except for his protected activity.21 Martin's testimony confirms this conclusion for he added another reason for Bailey's discharge that does not appear in Bailey's discharge letter, i.e., Bailey's failure to confess a mistake and to apologize.22 According to Martin, what really "ticked" him off and triggered the actual discharge was Bailey's failure to explain the situa- tion to him, describe the problems, confess his mistakes, or "even to apologize" during a "laspe [sic]" in his con- versation with Bailey on 21 March 1985. Thus it would appear, according to Martin's testimony, that Bailey was really discharged because he was not solicitous of Mar- tin's pardonable power. Indeed, Martin's testimony not only creates confusion concerning why he really discharged Bailey but also concerning when Bailey was discharged. In this respect Martin constantly referred to "rehiring" Bailey where as he adamantly insisted that he had not fired him until 21 March 1985. The credible record supports a finding that Bailey's "mistake" was carrying his grievance to the Union, an i+r Martin testified that he understood why Bailey did not call in, i.e., "Because he claimed that he was fired " 20 Moreover, it is also significant that Bailey's letter of discharge cites as a reason for Bailey's discharge, "your violation of company policy by failing to report to work since 15 March 1985 " but, in the Respondent's Br 48, it is stated as a cause "Bailey's repeated refusals to follow the Company policy of calling-in absences " It would appear the reason for discharge was shifted from that cited in the letter, in that the letter indi- cates that the reason was absenteeism 21 "[W]hen every other plausible motive has been eliminated and the reasons advanced are not persuasive , the union activity may well disclose the real motive behind the employer's action " Ames Ready-Mix Concrete v NLRB, 411 F 2d 1159, 1161 (8th Cir 1969). See also NLRB v. Melrose Processing Co, 351 F 2d 693, 698 (8th Cir 1965), Marlon Lewis, Inc, 270 NLRB 432 (1984) 22 I consider that Martin 's testimony on this subject was concocted by Martin for this hearing in furtherance of what he believed to be his inter- est Martin was a conniving witness adventure which obviously Martin did not favor for Martin's union animus is apparent in the credible record. ("[T]he unions wasn't going to run that place." "they was no good," "he was going to sell," "No son of a bitch is going to tell me how to run my business," and "I hope you carry the biggest goddamned sign because you will be the first son of a bitch that I run over.") The Respondent has not rebutted the General Coun- sel's prima facie case. Wright Line, supra. I find by a preponderance of the evidence that the real reason23 the Respondent fired Bailey was because he carried a grievance to the Union.24 I discredit the Re- spondent's claim that it would have discharged Bailey for legitimate business reasons even though he had not engaged in protected activity. Accordingly, I find that the discharge of William Lowell Bailey on 21 March 1985 was in violation of Sec- tion 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unlawfully discharging William Lowell Bailey on 21 March 1985, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It also having been found that the Respondent unlawfully discharged William Lowell Bailey on 21 March 1985, and has failed and refused to reinstate him in violation of Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. In accordance with Board policy, it is recommended that the Respondent offer Bailey immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, dismissing, if necessary, any employ- ee hired on or since the date of his discharge to fill the 23 "[T]he 'real motive' of the employer in an alleged § 8(a)(3) violation is decisive " NLRB v Brown Food Store, 380 U.S 278, 287 (1965) "It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test " Teamsters Local 357 v NLRB, 365 U S. 667, 675 ( 1961). "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership It has long been estab- lished that a finding of violation under this section will normally turn on the employer's motiyation " American Ship Building Co v NLRB, 380 U S 300, 311 (1965) 24 Cf NLRB v Selwyn Shoe Mfg Corp, 428 F 2d 217 (8th Cir 1970) 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's acts herein detailed, by payment to him of a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of a valid offer of reinstatement, less net interim earnings during such period, with interest thereon, to be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).25 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 ORDER The Respondent, D. H. Martin Petroleum Co., Elgin, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging union or concerted activities of its employees or their membership in General Chauffeurs, Sales Drivers and Helpers, Local 179, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by unlawfully and discriminatorily discharging its em- ployees or discriminating against them in any manner in respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(aX3) and (1) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer William Lowell Bailey immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge of William Lowell Bailey and notify the em- ployee in writing that this had been done and that the discharge will not be used against him in any way. (c) Preserve and, on request , make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its South Grove, Elgin, Illinois establish- ment copies of the attached notice marked "Appen- 11 See generally Isis Plumbing Co, 138 NLRB 716 (1962). ae 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 dix."27 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discourage union or concerted activities of our employees or discourage their membership in General Chauffeurs, Sales Drivers and Helpers, Local 179, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by unlawfully and discriminatorily discharging any of you or discriminating against you in any manner in respect to your hire or tenure of employ- ment or any term or condition of employment in viola- tion of Section 8(a)(1) and (3) of the National Labor Re- lations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer William Lowell Bailey, who we un- lawfully discharged on 21 March 1985, immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings , plus interest. WE WILL notify William Lowell Bailey that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. D. H. MARTIN PETROLEUM CO.