Aim Distribution System

AIM DISTRIBUTION SYSTEM 485 Aim Distribution Systems and Robert J. Irino and John McManigal and Drew Schooley. Cases 21-CA-24226, 21-CA-24227, and 21-CA- 24228 19 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 20 June 1986 Administrative Law Judge Burton Litvack issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering 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,' and conclusions and to adopt the recommended Order. ORDER The recommended Order- of the administrative law judge is' adopted and the complaint is dis- missed. X The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings. In adopting the judge's recommendation to dismiss the complaint, we place no reliance on the General Counsel's failure to call employee Gene Jackson as a witness or on the General Counsel's failure to explain why Jackson was not called. Lawrence J. Song, Esq. and Joel Martinez Esq., for the General Counsel. C E Borowski, Esq. (Borowski & Brushett), of Westlake Village, California, for the Respondent. DECISION STATEMENT 017 THE CASE BURTON LrrvACK, Administrative Law Judge. On Oc- tober 21, 1985,1 R'obert`Joseph Irino, John McManigal, and Drew Schooley, respectively filed unfair labor prac- tice charges in Cases 21-CA-24226, 21-CA-24227, and 21-CA-24228. Based on the charges, the Acting Region- al Director of Region 21 of the National Labor Relations Board (the Board), on December 31, issued a consolidat- ed complaint, alleging that Aim Distribution Systems (Respondent), engaged ' in acts and conduct violative of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). Respondent timely filed an answer, essen- 1 Unless otherwise stated, all dates herein occurred in 1985. 282 NLRB No. 78 tially denying the commission of any unfair labor prac- tices. The above-captioned matters having been sched- uled for trial, they were heard by me in Los Angeles, California on February 25 and 26, 1986. At the trial, all parties were afforded the opportunity to examine and cross-examine witnesses, present any relevant evidence, argue their legal position orally, and file posthearing briefs. The documents were filed by the General Counsel and by Respondent's representative and have been care- fully considered. Accordingly, based on the record as a whole, including the posthearing briefs and my observa- tion of the demeanor of the several witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a partnership and is engaged in ware- housing and freight distribution of goods, with a ware- house and office facility located at 540 Airpark Drive in Fullerton, California. During the 12-month period imme- diately preceding the issuance, of the instant consolidated complaint, which period is representative, in the normal course and conduct of its business operations, Respond- ent derived gross revenues in excess of $50,000 for the warehousing and distribution of freight and' commodities in interstate commerce, pursuant to arrangements with various customers that operate between and among vari- ous states of the United States. By virtue of the forego- ing, Respondent functions as an essential link in the transportation of freight and commodities in interstate commerce. Respondent admits that it is an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section,2(6) and (7) of the Act. II. LABOR ORGANIZATION General Truck Drivers, Office, Food and Warehouse Union, Local 952, International Brotherhood of Team- sters, Chauffeurs, Warehouse and Helpers of America, Local 952, is a labor organization within the meaning of Section 2(5) of the Act. in. ISSUES 1. Did Respondent terminate employees John McMan- igal and -Drew Schooley on September 17 because they engaged in union organizing activities and, therefore, violated Section 8(axl) and (3) of the Act? 2. Did, Respondent, through its alleged supervisors and/or agents Kenneth Bloedel, Mark Bloedel, and Gary Bloedel, engage in various acts and conduct violative of Section 8(a)(1) of the Act including interrogating em- ployees regarding their union activities and threatening employees with closure of the warehouse facility if, they engaged in union activities? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. he Facts Respondent operates a large warehouse and shipping facility in Fullerton, California, at which it stores prod- ucts for the companies, which distribute their merchan- 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dise nationally, and from which it transports the prod- ucts to various retail outlets located throughout the State of California. The Fullerton facility is a large industrial- type, building and is divided into an office area, truck maintenance shop, and a warehouse/shipping and receiv- ing area. Kenneth Bloedel is the president of Respond- ent, and his son Mark is the dispatcher and apparently responsible for the loading, routing, and delivery of the stored products.2 Kenneth's other son, Gary, is also em- ployed by Respondent as a mechanic.3 During Septem- ber, Respondent employed three truckdrivers , including Irino, a mechanic's helper, and four warehousemen- McManigal, Schooley, Gene Jackson, and Mark Do- lacki.4 What the General Counsel alleges as occurring herein is that, within days of four of its employees meeting with representatives of Local 952 and signing authorization cards designating that labor organization as their collec- tive-bargaining ,representative and immediately on gain- ing knowledge of its employees' union activities, Re- spondent embarked on a course of conduct , culminating in the termination of McManigal and Shooley, violative of the Act. The asserted genesis of Respondent's employ- ees' union activities was a meeting held in the dispatch office at Respondent's facility in late July and attended by all the employees and the Bloedel family. Kenneth conducted the meeting, which concerned insurance bene- fits. According to Robert Irino, "He was explaining this new insurance package that he wanted all the employees to get" because it was a group-type policy. He explained that the coverage would entail a $200 deductible on each claim, that the insurer would pay 80 percent of each claim, that the employee contribution would be $60 per month, and that there would be no dental coverage. Irino spoke, saying that he had been covered by a Team- sters union group medical plan at a previous employer, "and I asked him ... if you could pick between" differ- ent personal physicians "or if it was you just kept your family doctor."5 The matter of health insurance con- cerned Irino, and he spoke to McManigal about that sub- ject one day "on the way home ... from work" prob- ably in August.6 Irino mentioned his health insurance policy through the Teamsters Union, and "I explained to him that our union dues covered the expense of the union and the medical benefits" and that there was dental coverage. McManigal responded "that we should probably look into something like that." Irino further tes- tified that, approximately a week later, he spoke to Schooley in the warehouse "about the differences be- 2 Respondent admitted that both Kenneth and Mark Bloedel are super- visors within the meaning of Section 2(11) of the Act. Mark's wife, Joan, acts as the bookkeeper for Respondent. a Alleged in the consolidated complaint to be an agent within the meaning of Section 2(13) of the Act, Gary's status is denied by Respond- ent. 4 Irino testified that Dolacki was the individual who was "in charge" of the warehouse; however, he added that Dolacki "gets on the forklift, runs around, you know, just like a warehousemen." Respondent refused to stipulate to Dolacki's supervisory status, and there is no evidence of such other than Irino's above-stated assertion. ' The health insurance plan, which was explained by Kenneth Bloedel, was implemented by Respondent. Irmo chose not to participate in it. O McManigal resided in the same house with Irino and the latter's family in Highland, California tween the insurance of what [Respondent] had and what I had previously.... Drew thought it was a good idea because he was going to have ... a kid ... at the time, and he also liked the idea of ... dental benefits.... He wanted me to call the [Teamsters Union] at that time, and I told him no, kick it around yourself for a while." Irino did nothing with regard to contacting any Team- sters union representatives until Thursday, September 12. Early that morning warehouseman Gene Jackson ap- proached him in the warehouse "and asked me to call the union, that he wanted medical benefits." Irino con- sented to do so and, moments later from a pay telephone located on a wall near the shipping and receiving desk at Respondent's facility and with Jackson, McManigal, and Schooley ,standing a few feet away, Irino placed a tele- phone call to the office of Local 952. No business agents were, in the office. Subsequently, at approximately 12:45 p.m. from the same telephone in the presence of the same employees, Irino again telephoned Local 952.7 He spoke to Business Agent Don Baker, who wanted to know how many employees were involved and why they desired representation. Irino mentioned health insur- ance as the reason, and a meeting was arranged for the next day. The next day, Friday, September 13, employees Irino, Schooley, McManigal, and Jackson met with Local 952 Representative Baker and another union representative behind a lunch truck, parked across the street from Re- spondent's facility, at approximately 2:45 p.m. Irino, Schooley, and McManigal corroborated" each other con- cerning what occurred at this meeting.9 Baker distribut- ed Local 952 authorization cards to the four employees, giving Irino two additional cards and some union bro- chures. Each signed a card and returned it to Baker. Thereupon, Irino was elected the "chairman" of the em- ployee group, and Baker explained that Local 952 could get them better insurance benefits than offered by Re- spondent and for less money. He told them that he would file a petition with the Board and warned that management "would probably try to single out one or two individuals-may terminate them on the spot, may try to influence the other ones, to not vote union" Baker concluded by warning the four not to "give them any reason to fire you." There is no evidence that Respond- ent was aware of the occurrence of this meeting. The next working day was Monday, September 16. At the conclusion of the meeting with Baker on Friday, the four employees agreed not to mention the Union to other employees or to the Bloedel family until the next Wednesday, the day when Respondent would be notified of the filing of the NLRB petition. 1 ° Nevertheless, asser- 7 Mark Bloedel was nearby (10 to 15 feet away) during part of the conversation, but Irino placed his body between the telephone and Bloe- del. Thus, "he couldn t hear what I was saying:" 8 Contradicting Irino and McManigal on this point, Schooley testified that this meeting occurred on Thursday, September 12. 9 Jackson was not called as a witness by the General Counsel, and counsel gave no reason for the failure to do so. 10 The parties stipulated that a representation petition, encompassing a unit of Respondent's warehousemen and drivers, was filed by Local 952 on September 16 and withdrawn on September 18. Regarding notice to Continued AIM DISTRIBUTION SYSTEMS tedly refraining from mentioningt ,e Union, Iri o did discuss the matter of insurande coverage with employees that day. Thus, he spoke to the mechanic's helper, Steve, in the maintenance shop and told him that several em- ployees were discussing . "an alternate insurance policy." Also, he spoke to another truckdriver, Kurt, near the shipping and receiving door, telling him that several em- ployees were working on a new health plan, which in- cluded major medical and dental coverage . Irino also tes- tified that he spoke to Mark Dolacki only about insur- ance coverage and not about Local 952. Asked when the conversation occurred, the witness testified during direct examination, "The following day I spoke to Mark Do- lacki.," Later, during cross-examination, Irino was more specific, placing the conversation as occurring between 2 and 3 p.m. on September 17. Moments later, however, Irino changed his testimony, stating - that the Dolacki conversation actually occurred on' Monday afternoon, September 16, at 2:45 p.m.`In any event, he recalled that he "told [Dolacki] basically the same thing that the em- ployees were working on a different health and welfare package." Near the end of the conversation, according to Irino, McManigal joined them, saying to Dolacki, -You can look for some changes , around here in the near future' or something to that effect." During cross-exami- nation, Irino specifically denied giving a Local 952 au- thorization card to Dolacki or saying anything about unions during - their conversation. Finally, regarding Irino's assertion about McManigal's participation at the end of the conversation, the latter failed to mention any- thing about it during his-testimony. Irino stated that he first mentioned anything about the subject of unions to anyone other than his three cohorts early the next morning, Tuesday, September 17. Having obtained some motor oil, he was leaving the truck main- tenance area when he encountered Gary Bloedel. The latter asked, "'Is this -insurance policy that you're talking to employees about having anything to do with the Teamsters?' And I told him possibly." Gary turned to walk away, stopped, and said, "The union'll never get in here. My dad will close the doors down." Irino replied that it would be illegal; Gary responded that his father "had gone through this before . He knows how to take care of union business." The conversation ended and, ac- cording to Irino, he immediately went over to McMani- gal and said he had just made a mistake . Telling McMan- igal what he said to Gary Bloedel, Irino concluded by saying, "I think I blew it."" Subsequently, Irino left the 'facility to make a product delivery and did not return until approximately 1:45 p .m. On returning, Gene Jack- son approached, "screaming 'They know, they know, Respondent of the filing, the parties stipulated that Respondent's initial telephone contact with Board agents, regarding the petition, was on Sep- tember 18. 11 McManigal recalled that Irmo had, indeed, made such a confession, however, McManigal recalled Irino saying such as they rode home from work on Monday, September 16, and in the following context: Irino "told me that he thought he blew it , because [he'd] told Steve that we were going to try to turn union.... I told Bob that ... I think he screwed up by telling Steve." McManigal specifically denied that Irmo made the comments regarding a conversation with Gary Bloedel. This, of course, casts doubt on Irino's version of his conversation with the me- chanic, Steve, that day. ' 487 lib j luiiw `ali abil it."' Jackson walked away, and, mo- ments later, Mark Bloedel appeared beside Irino . Bloedel "asked me what the hell was going on about a union." Irmo asked what he meant; the dispatcher became upset and said, "`You know what I'm talking about a union. What's going on?' I [said] ... last Friday we were at a lunch truck and there was some men out there that were from the union that talked to us about health and welfare benefits." Nothing ' more was said, and Bloedel walked away. Irino punched out at 3:30 that afternoon and, as they had planned to have a soda together after work, waited by the ' shipping and receiving doors for Schooley to punch out. While waiting, according to Irino, he ob- served Kenneth Bloedel walk out ,of the dispatch office and over to Schooley. Bloedel had something in his hand and began speaking to, Schooley. The latter became upset and yelled, "That's a bunch of bullshit and you know it, Ken." Irino moved to within 10 feet of the two men and heard Kenneth say that Schooley's "work performance wasn't up to company standards, and that he felt that he was doing Drew a favor by terminating him." Schooley replied that Bloedel was not being fair and that he had been thought of as a company °asset a couple of weeks earlier. Thereupon, Schooley and' Irino left the ware- house facility. Approximately an hour later, at 4:30 or 5 p.m., accord- ing'to Irino, he and Schooley returned to Respondent's facility. While the latter waited outside, Irino walked inside, saw Mark and Joan Bloedel speaking, and mo- tioned for Mark to follow him . They walked outside, "and I then told him, I said That's a bunch of b.s., what your dad just did to Drew.' Mark [replied] ... that 'We should have known this was going to happen. We had noboby to blame but ourselves."' Mark continued, saying "that the company could not afford to go union ," and he explained that it would cost Respondent $2000 per em- ployee if such occurred. Irino responded that 'the em- ployees would pay their own dues and initiation fees but that such was premature. As the conversation neared the end, McManigal walked out of the warehouse and ap- proached them. He looked at Mark and said, "I'suppose me and Bob are going to be ' getting fired next." Mark denied it and walked away. Irino next testified that he and Schooley waited for McManigal to punch out at approximately 7 p.m. At that hour, the' latter walked out of the warehouse, waving a paycheck and, as he approached, said, "I got mine."' Mo- ments later, the three employees noticed Mark Bloedel standing outside the warehouse . They walked over to Mark, and one asked if there was anything that could be done to return McManigal and Schooley to work. Mark replied that it was out of his hands and was his father's decision. Irino requested a meeting with Kenneth and asked Mark to arrange it. Such occurred approximately 20 minutes later at a lunch table , in the shipping and re- ceiving area. Present were Kenneth and Mark Bloedel, Robert Irino, Drew Schooley, and John McManigal. Re- garding Irino's version of this meeting, he depicts himself as speaking first and asking how McManigal and Schoo- ley could get their jobs back. "Ken's reply was 'Nothing. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Their work performance isn't up to company stand- ards."' Irino then accused Kenneth of firing Schooley and McManigal because of the union, and Kenneth denied it, saying "because of their work experience." Kenneth thereupon exclaimed that he could not afford a union, and that " a union can do us no good .. It can only hurt ... if this company goes union, I'll lose all my ac- counts. The only reason why I can give . . . my custom- ers these low rates is becasue I'm non-union ." Kenneth continued, saying that another reason for the discharge was that there had been too much damaged goods in the warehouse. Then, he and Irino argued about equipment failures, the unsafe condition of the delivery trucks, and a stack of products that had toppled over and fallen to the ground. Next, according to Irino, McManigal men- tioned another employee, Mike Wilkins, and asserted that he had ruptured a gas line while operating a forklift. "And Ken's reaction was `I can overlook ... Mike Wil- kins or his mistakes. He's been with me for years."' At that point, Irino walked out of the meeting.l2 Regarding what occurred on September 17, John McManigal testified that, soon after reporting to work at 10 a.m., Gene Jackson approached him, saying "`They know. They know.' I asked him what he meant. He said `They know about the union.' I asked him how ... he knew. He told me that he had heard little bits and pieces through the morning." All during the day, according to McManigal, contrary to what was their normal prac- tice,13 Kenneth and Mark Bloedel and Mark Dolacki held five or six meetings in the warehouse, each lasting 25 or 30 minutes. Also, unlike prior occasions, they stopped talking whenever McManigal approached where they were standing.14 The witness further testified that 12 During cross-examination, Irino stated that he had been given a tele- phone credit card for his use while traveling to northern California. He specifically denied utilizing the credit card number after his termination from Respondent on October 11 or using the credit card to make tele- phone calls to Biloxi, Mississippi In order to impeach the foregoing denials and the overall credibility of the witness, Joan Bloedel testified as a witness on behalf of Respondent. She stated that she called the telephone company on the day that Irmo was terminated and canceled his telephone credit card. Subsequently, on receiving Respondent's long-distance telephone bill for October, she no- ticed billings for two October 23 telephone calls to Biloxi, Mississippi. (Indeed, R. Exh. 2(d), the billing record, reflects two such Biloxi, Missis- sippi calls from Highland, California, on October 23.) Testifying that the credit card number utilized to pay for the two phone calls was that which had been issued to Irino, Joan called the telephone company, and "the phone company said it was made from Bob Irino's residence." Fur- ther, she believed Irino had been the person who made the two telephone calls as "no one else should have known the [credit card number] except for him." On learning the address from where the calls had been placed, Joan requested that the charges be removed from Respondent's bill and placed on Irino's. is Normally, according to McManigal, the Bloedels and Dolacki would speak no more than two or three times a day and for no longer than 10 minutes. Contradicting McManigal, Drew Schooley stated that he did not pay attention to the Bloedels or Dolacki speaking in the warehouse that day but "if they were talking to each other, it wasn't unusual." 14 At issue is whether Kenneth Bloedel was even at Respondent's fa- cility until late in the day on September 17. Thus, Joan Bloedel testified that Kenneth did not arrive at the warehouse until 2 or 3 p in. Regarding whether he may have been there without her knowledge, Joan respond- ed, "He could have, but normally, he'll come in, and he always lets me know'when he's around." Further, Dolacki denied seeing Kenneth at all t h a t day-"I n e v e r seen K e n all day .. '. whatsoever." In contrast, both he had occasion that day to-seek Irino's help with work. He found Irino speaking to Gary Bloedel; as he ap- proached, McManigal overheard Gary say "that they wouldn't allow the union in, they'd close the place down." During cross-examination, McManigal could not recall Gary saying his father would act in some manner. McManigal testified that, at approximately 4:30 p.m., he again spoke to Gene Jackson who told him that Schooley had just been fired and- that someone else was to be terminated that day. No more than 30 to 45 min- utes later, Schooley approached McManigal while the latter was operating a forklift, and he "told me that he had just gotten fired, and that I was also going to get fired at the end of my shift." At approximately 5:30 p.m., McManigal finished a job and sought Mark Bloedel in order to speak to him. Told that Mark was in the front yard speaking to Irino, McManigal approached them just as the others were speaking about the safety of the trucks. In his presence, the subject of the Union arose- "Bob was telling him that we weren't going after more money, that we were just going after better benefits. I told Mark Bloedel that for half the money, we could get our union dues paid and get better medical benefits than what Aim was offering." At that point, Schooley joined the conversation; however, McManigal could not testify to what was said, "The conversation became really con- fused." Nevertheless, he did remember Bloedel saying "for us to join the union would cost the company up to $2,000 apiece." At the end of the conversation, "the three of us ... asked Mark to go get Ken so we could have a meeting with Ken." Mark thereupon left them, and the three employees walked inside the warehouse and over to the shipping and receiving table. Moments later, Kenneth and Mark Bloedel came out of the office, walked over to the em- ployees, and Kenneth said he understood that they wanted to have a meeting. McManigal's version of the ensuing conversation began with his asking "how come I was getting fired. He told me because I was too slow, made too many mistakes, and broke too, many things. I asked him how come Drew was getting fired. He said because he was too slow, made too many mistakes, and didn't do what he was told." At that point, either Irino or Schooley asserted that the Union was the real reason that they were being fired. Kenneth denied it; where- upon, McManigal asked why he was against unions. Kenneth replied, "I've had dealings with up to 28 unions at one time, and they've caused nothing but problems." McManigal testified further that Bloedel always spoke in generalities, and never specifically mentioned the Team- sters. The witness did recall either Kenneth or Mark saying "you guys should have known this was going to happen. You have nobody to blame but yourselves." McManigal recalled that Irino raised the job perform- ances of Schooley and himself, saying that both had once been company "assets." Kenneth replied that Dolacki could no longer work with either and that "the way the union went about getting us was illegal...." There- Irino and McManigal testified that each saw Kenneth at the warehouse facility during the morning of September 17. AIM DISTRIBUTION SYSTEMS upon, McManigal stated that Irino-'bime to the defense of the two terminated employees, saying that he (Irino) was the union instigator and if they fired anyone, he should be that person. There was no response by either Bloedel. The meeting ended with Kenneth saying that if either McManigal or Schooley did not find a job in a couple of weeks, he should return to Respondent, "and I'll see what I can do for you." Finally, with regard to being fired that evening, McManigal denied being so in- formed by Respondent at any time that day. He added, however, that, during the aforementioned meeting with the Bloedels, Joan Bloedel walked out of the office and gave him two checks-one for the prior week and one for the Monday and Tuesday of that week. McManigal also specifically denied coming out of the warehouse, waving the final check and saying, "I got fired, too." Drew Schooley also testified about the events of Tues- day, September 17. According to him, at approximately 3:30 p.m., Kenneth and Mark Bloedel approached him between aisles 2A and 2B in the warehouse, and Kenneth asked "`What's this I hear about union activities?' And I said 'I'm not sure.' And he . . . asked me if I was given a card ... and I said `Yes.' ... And he said, `Did you sign it?' and I said `No comment.' And he said `... was everyone else given a card?' and I said `I'm not sure.' That's about it and then he 'smiled and walked away." Asked by the General Counsell if Kenneth mentioned any action he, might undertake, Schooley responded, "[H]e told me that ... he ... wouldn't tolerate the union, that he'd close the doors down before he'd let the union in." 15 Both Bloedels then walked away, and Schooley immediately informed Gene Jackson and McManigal that Respondent was aware of the union activities. ' Schooley punched out at approximately 5 p.m. Ac- cording to, him, as he did so, Kenneth Bloedel ap- proached and handed him a check, saying it was for the prior week and the one for that week would be ready in a few minutes. Bloedel returned with Schooley's final check, and the latter asked why he was being fired. Ken- neth mentioned "a couple of accidents" and accused Schooley of having "poor work habits" and being "slow." The employee argued that the product accidents, to which Bloedel referred, were not his fault but was unable to change Kenneth's mind. Thereafter, Irino and he left the plant, but they subsequently returned to await the finish of McManigal's shift. Schooley stated that "during that time, we just sat there and talked back and forth." Asserting that he and Irino were aware that McManigal had'also'been fired as the latter showed them his final paycheck and said "They got me, too," Schoo- ley testified that the three employees had ,a meeting with 16 At the hearing, Schooley asserted that Kenneth Bloedel had uttered the identical threat "months before" to Gene Jackson and him "at the re- ceiving desk," He recalled that Bloedel just blurted out to them that he would close the place down before letting a union in. Later, under ques- tioning by the General Counsel, Schooley contradicted himself regarding this prior threat by Kenneth Bloedel, saying that the statement was made in "late July, I believe, early August"; that it was uttered "in the dispatch office"; and that "possibly Mark Bloedel" was present and "I don't be- lieve-anybody else." Schooley averred that Gary Bloedell had threatened him in the same manner more than two times. He stated that he mentioned these com- ments to Irino, McManigal , and Jackson as they discussed the Union. 489 Kenneth 'and Mark Bloedel "shortly after 7:00." The conversation concerned the discharges of the two em- ployees, and Schooley "[A]sked if we were fired because of poor work habits or union activities . . ." as it seemed strange that they were thought of as valuable employees and as their terminations occurred just as Respondent discovered the union activities. "Ken said it had nothing to do with that," and explained why the two warehouse- men had been discharged. Then, Kenneth "said that he wouldn't .... tolerate the union in there and that he would close the door down.... And he said the union's no good, they wouldn't do any good for us." Asked by the General Counsel if Bloedel mentioned his customers, Schooley replied, "he said that the reason he has all his customers and such big accounts is because he's non-union operation, and that if he went union, that he would lose all of his business and customers, because he'd have to charge union wage and pay union wage." During cross-examination, Schooley stated that the meet- ing continued until 8 or 8:15 p.m. and that, during it, Irino admitted that he was the instigator of the union or- ganizing campaign. While failing to call Gene Jackson as a witness or ex- plain the failure to do so, the General Counsel did prof- fer the testimony of Mark Dolacki. Asked whether he discussed a union with any employees prior to the termi- nations of McManigal and Schooley, Dolacki testified that he had such a discussion on the "Tuesday morning" the two employees were discharged, that he spoke to Irino and McManigal, and that he "was presented with a card ... in the back of the warehouse" at approximately 9:30. Elaborating, Dolacki stated, "Bob Irino presented me with this card, asked me to fill it out, give it back to him at the end of the day. He told me he had to turn it . into the union that evening.... He told me that, if I was to sign the card we would,. get, better benefits," meaning "insurance" , benefits. The witness replied to Irino, "I told him I wasn't going to sign it because I knew what it was. It was a union ' card... ." Dolacki re- fused to sign "until I ... had a union representative contact me." McManigal urged him to execute the card, but Dolacki again refused to do so. Thereupon, the latter folded the card and stuffed it into his pants pocket. Asked if he told Kenneth Bloedel about the conversa- tion, Dolacki replied, "The following day," subsequent to the termination of Schooley and McManigal.16 At the hearing, Dolacki identified General Counsel's Exhibit 3, the Local 952 authorization card executed by McMani- gal, as the same card as the one 'given to him by Irino. 16 Stating that he wanted me to draw the inference that the conversa- tion with Irino occurred on Monday and that Dolacki reported it to Ken- neth Bloedel on Tuesday, the General Counsel attempted to impeach the witness' testimony with his pretrial affidavit in which Dolacki stated, "As far as I can recall John and Drew were terminated about a week and a half after I told Ken about Bob and John trying to get me to sign a union card " Dolacki readily admitted that was what was stated in the affidavit but claimed it-was incorrect. He further stated that he realized a mistake had been made "that evening before I left the warehouse" and that he attempted to locate the Board agent, who had taken the affidavit, "but she was already gone." Asked to explain what was wrong about the above-quoted statement, Dolacki responded that it should have stated: "Bob was terminated at about a week and a half after I told Ken about Bob and John trying to get me to sign." 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, as corroboration for his version of the conversa- tion with Irino, Dolacki was recalled as a surrebuttal witness by Respondent's representative and produced what he said was the authorization card that was offered to him by Irino. Examination of the document, Respond- ent's Exhibit •3, disclosed that it was identical to the Gen- eral Counsel's Exhibit 3. In defense to the allegations of the consolidated com- plaint, Respondent failed to call as witnesses either Ken- neth or Mark Bloedel and offered no evidence concern- ing its motivation underlying the terminations of Drew Schooley or John McManigal. However, Joan Bloedel testified that, on "Monday afternoon sometime;" Septem- ber 16, Kenneth Bloedel asked her to draw final checks for the two discriminatees, and "I started on them on Monday and typed them up Tuesday monrning." There- after, she gave the checks to her father-in-law "later on Tuesday afternoon" because "he wasn't feeling well Monday, and he was out Tuesday morning. He came in later Tuesday morning." Joan added that it took her 20 minutes for each to compute what was owed to Schoo- ley and McManigal. In addition, Irma Knapp, an office worker for Respondent, testified that she was the person in the office who received customer complaints and that "John and [Drew] were making too many mistakes on the pulling." These totaled "several a week," and while they were not responsible for every mistake , "more than their shares were theirs." Knapp knew that Schooley and McManigal were responsible "because on the bill of lad- ings they had to put their number on them," and "any time there's a mistake, we look to see who pulled it." Knapp further testified that she informed Kenneth and Mark Bloedel of the foregoing. B. Analysis A determination of the legality of the discharges of McManigal and Schooley is governed by, the traditional precepts of Board law in Section 8(a)(1) and (3) termina- tion cases, as modified by the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the rationale of which was specifically upheld by the Supreme Court in NLRB v. Transporation Manage- ment Corp., 462 U.S. 393 (1983). Thus, in order to estab- lish a prima facie violation of Section 8(a)(1) and (3) of the Act, the General Counsel must establish that (1) the alleged discriminatees engaged in union activities; (2) Re- spondent had knowledge of the activities; (3) Respond- ent's actions were motivated by union animus; and (4) the discharges had the effect of encouraging or discour- aging membership in a labor organization. WMUR-TV, 253 NLRB 697, 703 (1980). Further, the General Counsel has the burden of proving the aforementioned by a pre- ponderance of the evidence. Hampshire Woolen Co., 141 NLRB 201, 209 (1963). Although the aforementioned analysis was easily applied in cases in which the employ- er's motivation was straightforward, conceptual problems arose in cases in which a plurality of motivation was in- volved-the presence of both a lawful cause and an un- lawful cause for the discharge. In order to resolve this ambiguity, in Wright Line, supra, the Board established the following causation test in all 8(a)(1) and (3) cases in- volving employer motivation. "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision. Once this is established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." Id. at 1089. Two points are relevant to the forego- ing test. First, in concluding that the General Counsel has established a prima facie violation of the Act, -the Board will not "quantitatively analyze" the effect of the unlawful motive. The existence of such is sufficient to make a discharge a violation of the Act. Id. at 1089, fn. 14. Second, while apparently warranting the identical an- alytical approach, pretextual discharge cases should be viewed as those in which the "defense of business justifi- cation is wholly without merit." Id. at 1084 fn. 5. Central-and critical-to the aforementioned legal analyses is the matter of the credibility of the various witnesses. In this regard, my impression-as stated to the parties-at the close of the instant trial was that ' the credibility of the General Counsel's witnesses presented "serious problems" for me. On careful analysis ' of the record, I have found nothing to dissuade me from this view. Indeed, my stated conclusion has been significantly buttressed by the record evidence. Simply put, I found the testimonies of the General Counsel's main witnesses, Robert Irino, John McManigal, and Drew Schooley, so completely riddled, and rife, with internal inconsistencies and external contradictions and so lacking in corrobora- tion that the testimony of neither discriminatee nor that of Irino is worthy of belief. Initially, regarding the latter witness, I found him to be most disingenuous and un- impressive while testifying, with all possible areas of candor utterly subverted by the impeaching testimony- and supporting documentary evidence-offered by Mark Dolacki1 7 and Joan Bloedel.'8 Regarding internal incon- sistencies, one need but consider Irino's direct examina- tion testimony that his "insurance coverage" conversa- tion with Dolacki occurred on September 17 ("the fol- lowing day" after his Monday conversations on'that sub- ject with two other employees) and his abruptly changed cross-examination testimony that the conversation oc- curred on Monday, September 16-or prior to the alleg- edly discriminatory discharges-and Schooley's incon- sistent testimony regarding a past Kenneth Bloedel threat identical to his asserted September 17 threat to close the " As between Dolacki and Irino, I credit the former, who impressed me as being a candid witness. In particular, I found his explanations re- garding the mistake in his pretrial affidavit and his effort to, correct it to be reasonable. Therefore, I credit his testimony over Irino 's denial that the latter solicited his signature on an authorization card for Local 952 on Tuesday, September 17, that Irino gave him such a card, and that he first informed Respondent of the solicitation effort on the next day, September 18. I note that Dolacki produced the authorization card at the trial , there- by corroborating his testimony and that the General Counsel offered nothing to discredit the card's validity. "I As between Joan Bloedel and Irino, I credit Joan Bloedel, who im- pressed me as being an honest and forthright witness. Therefore , I credit her testimony over the denial of Irmo that she was informed by the tele- phone company that, utilizing the credit card number given to Irino by Respondent, telephone calls to Biloxi, Mississippi , were made from his residence in Highland, California, subsequent to his discharge. I draw the inference that the calls, corroborated by the telephone bills themselves, were placed by Irino. AIM DISTRIBUTION SYSTEMS 491 doors of the facility rather than permit a union to repre- sent his employees. Under questioning by me, Schooley stated that Bloedel had uttered the threat "months before" to Gene Jackson and himself at the receiving desk; later, under questioning by the General Counsel, regarding the same prior threat, Schooley placed it as occurring in "late July" or "'early August," being said "in the dispatch office," and being uttered to,himself and "possibly Mark Bloedel." Concerning the numerous, and blatant, external inconsistencies between the three wit- nesses' versions of what occurred on September 17, I note, at the outset that they disagree as to the day of the week and the date on which they met with Local 952 representatives to organize the union representation cam- paign. Thus, Irino and McManigal testified that such oc- curred on Friday, September 13, while Schooley swore the day was Thursday, September 12. Regarding the events of September 17, the three witnesses `blatantly contradicted each other as follows: 1. Irino testified that he spoke to Gary Bloedel that morning and that the latter stated the following threat: "The union'll never get in here. My dad will close the doors down." He allegedly added that his father "had gone through this before. He knows how to take care of union business." McManigal assertedly overheard the last part of the conversation between Irino and Gary Bloe- del. However, contradicting Irino, he supposedly over- heard Gary say "that they wouldn't allow the union in, they'd close the place down." (Emphasis added.) Fur- ther, he could not corroborate Irino that Gary spoke of his father taking the threatened action. Irino further testified that, immediately after speaking about the Union with Gary Bloedel, he sought out McManigal and said he had just made a mistake and "I think I blew it." However, McManigal, while remember- ing that Irino had, indeed, made such a comment, re- counted it as having been , stated by Irino while they were driving home from work the prior day, September 16, and as being in reference to a conversation between Irino and Steve that day. 2. McManigal asserted that he observed Kenneth Bloe- del, Mark Bloedel, and Mark Dolacki hold five or six meetings in the warehouse that day. What was unusual about these, according to McManigal, was that each lasted approximately 25 or 30 minutes and the partici- pants stopped talking whenever he came near. On the other hand, Schooley, who worked throughout the warehouse that day, failed to corroborate McManigal on these meetings and even deprecated the latter's charac- terization of what occurred--"if they were talking to each other, it wasn't unusual." 3. Irino testified that he punched out at 3 :30 p.m. and shortly thereafter overheard Schooley 's discharge con- versation with Kenneth Bloedel in which the latter criti- cized Schooley's work performance and Schooley, in turn, said such was "a bunch of bullshit." Contrary to Irino, Schooley testified that he punched out at 5 p.m.,19 19 The time contradiction is critical; for if Irmo is correct about the time, such casts doubt on the occurrence of the alleged conversation be- tween Schooley and Kenneth Bloedel at 3:30 p .m. in which the latter in- terrogated Schooley about his union activities and uttered his threat to close the facility because of the Union. said'nothing about Irino's presence during his discharge conversation with Bloedel, and testified to the uttering of not one curse word. 4. Irino testified that, on returning to Respondent's fa- cility late in the afternoon, he left Schooley, sought out Mark Bloedel, and thereafter engaged in a conversation with him in the facility's parking area. Schooley, howev- er, testified that he and Irino returned to the plant that afternoon and just waited in a car for McManigal to con- clude his work shift. 5. According to Irino, during his asserted conversation with Mark Bloedel, the latter mentioned Schooley's dis- charge, saying that "We should have known this was going to happen. We had noboby to blame but our- selves." Irino further testified that McManigal was not present at this point in the above conversation . Contrary to Irino, McManigal testified that ' the identical comment ("you 'guys should have known this was going to happen. You have nobody to blame but yourselves.-) was uttered by either Kenneth or Mark Bloedel during the conversation inside the facility later , that evening. Neither Irino nor Schooley, who failed to mention such a statement, placed the comment as having been made during the latter meeting. 6. McManigal testified that no respondent official ever specifically stated that he 'was being discharged and that he first became aware of the fact when he was given his final checks during the meeting between the three em- ployees and Kenneth and Mark Bloedel inside the facility that evening. Further, he specifically denied being told of his termination earlier and, thereupon, walking out of the warehouse, waving his final checks in order to catch the attention of Irino and Schooley, and saying "I got fired, too." Such must be compared with the versions of Irino and Schooley, both of whom depicted McManigal, prior to the evening meeting inside the warehouse, as walking outside earlier, waving his final checks, and saying "I got mine." 7. Prior to the meeting with Kenneth Bloedel later in the evening, according to Irino, he had two separate conversations with Mark Bloedel, during the first of which McManigal was also a participant, and during the second of which both McManigal and Schooley were participants. McManigal and ' Schooley, however, both mentioned only one such conversation, immediately pre- ceding the meeting with Kenneth Bloedel. 8. Regarding the Kenneth Bloedel meeting inside the warehouse that evening, the most striking feature of the three witnesses' versions is the degree to which McMani- gal's version differs from those of the others. Thus, I ini- tially note that each witness depicts himself as asking the initial question and that they conflict over what exactly was asked (Irino says it concerned how McManigal and Schooley could get their jobs back; Schooley states that it concerned the reasons for the two discharges-poor work habits or the union; and McManigal states that he merely inquired about the reasons for the two termina- tions). Concerning Kenneth Bloedel's comments about unions, McManigal's version has him saying only "I've had dealings with up to 28 unions at one time, and they've caused nothing but problems." On the other 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand, according to Irmo, Kenneth said that unions were no good and , could only hurt the employees and that, in the advent of a union, he would lose all his accounts in- asmuch as he was able to charge low rates because Re- spondent was nonunion. These versions must be contrast- ed with that of Schooley, who, besides having Bloedel saying that the Union would cause him to lose his cus- tomers, quotes the latter as threatening "that he wouldn't ... tolerate the union in there and that he would close the door down." Of course, neither Irino nor McManigal testified to an identical or similar threat being made. Fi- nally, contrary to McManigal and Schooley who both testified that toward the end of the meeting Irino admit- ted to the Bloedels that he was the Union's instigator, Irino, the asserted actor, failed to mention his confession during his testimony. In view of the foregoing inconsistencies, blatantly con- tradictory testimony, and lack of corroboration, and given the fact that the General Counsel failed to explain her failure to call Gene Jackson, the other asserted em- ployee participant in the union organizing campaign, as a corroborative witness, I reiterate my utter lack of confi- dence in the trustworthiness of any aspect of the respec- tive testimonies of Irino, McManigal, and Schooley, and neither shall be credited as a truthful witness herein re- garding the events of September 17. With matters in such a posture, in light of Respondent representative's understandable decision not to have either Kenneth or Mark Bloedel testify, it is manifestly impossible to ascer- tain exactly what did occur on September 16 and 17. However, it is entirely possible to' determine what did not occur on those dates. Thus, I do not believe that Gary Bloedel spoke to Irino about union activities or warned the latter that his father "will close the doors down" rather than permit the Teamsters Union to repre- sent Respondent's employees;20 that Mark Bloedel inter- rogated Irino about the union activities at the facility; that Mark Bloedel ever told Irino "We should have known this was going to happen. We had nobody to blame but ourselves"; or that Kenneth Bloedel ever said "If this company goes union, I'll lose all my accounts." Likewise, I do not believe that Kenneth Bloedel and Mark Dolacki held five or six 25- to 30-minute meetings in the warehouse on September 17.21 Finally, I do not find credible the testimony of Schooley that Kenneth Bloedel either interrogated him on September 17 regard- ing his union activities or threatened to close the doors before recognizing the Union or that Kenneth repeated his threat that evening with McManigal and Irmo present. Accordingly, I shall ' recommend that paragraphs 7(a)(i) and (ii), (b), and (c) of the consolidated complaint be dismissed.22 20 In view of my credibility resolution, I need not, and do not, decide the agency status of Gary Bloedel. z 1 In view of my credibility resolutions here, I credit Joan Bloedel and Dolacki that Kenneth Bloedel was not in the warehouse that morning. 22 It is not quite accurate to say that it is impossible to determine what occurred on September 17. Thus, I have no doubt that Irino , McManigal, and Schooley met with Kenneth and Mark Bloedel that evening to pro- test the discharges of McManigal and Schooley and that the employees undoubtedly sought to establish that their union activities were the moti- vating factors. However, if Kenneth made any derogatory comments Concerning the allegedly unlawful terminations, other than the discredited testimonies of Irino, McManigal, and Schooley, there is no direct evidence that Respondent was aware of its employees' nascent union organizing campaign or was unlawfully motivated in discharging the two employees. In her posthearing brief, the General Counsel argued that "the small number of employees working at the warehouse supports the inference of knowledge." Contrary to the General Counsel , I do not believe that the Board's so-called small plant doctrine is applicable to the instant fact situation. Thus, 'there is no evidence that Respondent became aware of the filing of the representation petition by Local 952 prior to Septem- ber 18, and Irino, McManigal, Schooley, and Jackson de- cided to keep the union campaign secret until the filing. Also, other than the solicitation of Dolacki by Irino, there were no union activities conducted inside the ware- house facility. Accordingly, notwithstanding the small size of Respondent's work force, I do not draw the infer- ence that Respondent must have become aware of the union activities. The General Counsel next argues that "the timing of the discharges-only two working days after the union meeting-strongly suggests that the dis- charges were discriminatorily motivated." Contrary to the General Counsel, if Respondent became aware of the union organizing campaign, the record evidence suggests that such occurred on September 17. However, Joan Bloedel, whom I have credited here, testified that her father-in-law instructed her to prepare the final checks for McManigal and Schooley on Monday afternoon, Sep- tember 16. Even absent such evidence the matter of "timing" only creates an inference of unlawful motiva- tion. Here, there is not a scintilla of credible record evi- dence establishing that Respondent was motivated by the union activities of McManigal and Schooley in terminat- ing them. Based on the foregoing, I do not believe that the General Counsel has established a prima facie show- ing sufficient to warrant the conclusion that the protect- ed concerted activities of McManigal and Schooley were motivating factors underlying their respective discharges. The General Counsel having, therefore, failed to meet its burden of proof under the Board's Wright Line, supra, test, I shall recommend that the consolidated complaint allegations about the discharge of McManigal and Schooley be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaing of Section 2(6) and (7) of the Act. , 2. Teamsters Local 952 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent engaged in no conduct violative of Sec- tion 8(a)(1) and (3) of the Act. about the Union, or unions in general, such were more likely than not along the lines of McManigal's innocuous version of that meeting. AIM DISTRIBUTION SYSTEMS 493 On these findings of fact and conclusions of law and ORDER on the entire record, I issue the following recommend- The consolidated complaint is dismissed in its entirety. 23 If no exceptions are filed as provided by Sec 102 46 of the Board's Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- poses