Synergy Gas Corp.

900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Synergy Gas Corp. and Frank Depolito. Case 2- CA-22075 August 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 18, 1988, Administrative Law Judge Eleanor MacDonald issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Synergy Gas Corp., Cold Spring, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied.2 In paragraph 1(b), change "concerted activities" to "union activities." ' 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. 2 The notice need not be modified as it conforms to the change we have made in the language of the Order. Richard L. DeSteno, Esq., for the General Counsel. Elliot J. Mandel, Esq. (Kaufman, Frank, Schneider & Ro- sensweig, P.C.), of New York, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in New York, New York, and Cold Spring, New York, on 5 days between 23 June and 4 August 1987. The complaint alleges that Respondent, in violation of Section 8(a)(1) and (3) of the Act, interrogat- ed its employees concerning their union activities and discharged employee Frank DePolito because he joined the Union. Respondent denies the material allegations of the complaint and alleges that DePolito was a manager of the Company and that he was discharged for miscon- duct. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent in October 1987, I make the following' FINDINGS OF FACT I. JURISDICTION Respondent, a domestic corporation with an office in Farmingdale, New York, and a facility in Cold Spring, New York, provides bottled propane gas and mainte- nance service on gas lines and appliances . 2 Annually, Re- spondent purchases products valued in excess of $50,000 directly in interstate commerce . Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 456, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The uncontradicted testimony of all the witnesses taken together shows that Synergy Gas Corp. was an or- ganization dedicated to expanding its area of operations. In August 1985, Synergy hired Frank DePolito as a serv- iceman for its approximately 23 propane gas customers in the area of Cold Spring, New York. DePolito worked out of his home in Cold Spring; an answering machine on his telephone took messages from Synergy's custom- ers. DePolito drove to Synergy's. branch in Parsippany, New Jersey, to pick up propane gas and other supplies as he needed them. DePolito parked the Synergy truck in a lot behind a local hardware store. The Cold Spring branch was designated as 4075. At various times, Synergy employed other employees to work with DePolito. Their hirings and firings will be discussed below. DePolito was supervised by Philip Nicolette, the area manager of Synergy. Nicolette spoke to DePolito many times per week on the telephone and came to Cold Spring to see DePolito several times per month. In addi- tion, DePolito saw Nicolette at the Parsippany branch on occasion.3 DePolito also received messages about customer calls from dispatcher Ray Vanderhoof of the Parsippany branch. DePolito began work as an hourly paid employee earning $10.50 per hour. On 26 November 1985, Nico- lette wrote to the vice president of operations, John Rus- sell, to the effect that DePolito had been diligent in ac- quiring new accounts and asking that DePolito be paid ' Due to an error by the official court reporter in binding the exhibits in the instant case, a certain confusion has arisen. I note that the follow- ing exhibits were identified but were not received into evidence : R. 5, 11, 12, and 15a,b,c. 2 Respondent's executive offices are in Farmingdale. Other facilities are scattered throughout the Northeast. s Nicolette is responsible for about 32 branches of Synergy in New York and New England. His office is in Parsippany, New Jersey. 290 NLRB No. 108 SYNERGY GAS CORP. 901 commissions on his new sales. Nicolette mentioned that DePolito needed more money to pay the hospital bills connected with the recent birth of his daughter. The letter closed with the statement that it was Nicolette's "intent to have Frank as our manager in Cold Spring [sic] when that plant requires." On 20 December 1985, Nicolette again wrote to Russell, this time to request that DePolito be granted a salary of $25 ,000 per annum. Ni- colette pointed out that DePolito had been working long hours 6 days per week and stated, "I feel Frank has proven to me he is more than qualified to be a manager." This raise was granted by Synergy. Synergy had no facility for storing propane gas in the Cold Spring area. If it was to expand the number of its accounts, the Company required a nearby plant so that its employees would not have to make the 2-hour drive to Parsippany for gas and other supplies. The Company made efforts to acquire property and secure a permit to build a storge tank in Cold Spring. DePolito was in- volved in these efforts because he was eager to advance his future with the Company as the head of an expanding branch. However, Synergy was unable to obtain a permit to build a plant with a propane storage tank, and eventu- ally it decide to buy a going concern with an existing storage facility. On 29 October 1986, Synergy purchased Economy Gas in Cold Spring from its owner , Wayne Bumstead. Contrary to his expectations, DePolito did not become the branch manager of the new facility; instead, Bum- stead was asked to remain as manager and run the busi- ness. Bumstead received a yearly salary of $23 ,000. In addition, he had received a down payment of $35,000 from Synergy for the purchase of Economy Gas and he held a 10-year mortgage on the facility to secure future quarterly payments until the full purchase price of $440,000 had been paid. In October 1986, Economy Gas consisted of a yard, storage facilities, and a house which contained a tiny office. The office had a desk for Bumstead's use, a counter to be used by other employees, and facilities for a secretary. Bumstead's residence was above the office. Economy Gas had about 1000 customer accounts which were taken over by Synergy. The employees of Econo- my Gas now worked for Synergy; these were Bumstead, Glen Pennachio, and secretary Paulette Pennachio, his sister. DePolito and Randy Collazo, Synergy's old em- ployees, now worked out of the new Synergy facility in Cold Spring. The new facility was designated branch 4076. By 18 November 1986, according to Nicolette, DePo- lito was complaining that Bumstead did not know how to run the business and was losing customers. DePolito also told Nicolette on 13 January 1987 that Bumstead's failure to dispatch employees properly had caused missed deliveries to Metro North, a major client. In turn, Bum- stead complained about DePolito to Nicolette ; he told Nicolette that DePolito made "arrogant comments" and that DePolito and Collazo were wasting time. The instant case arises out of DePolito's discharge by Nicolette on 4 February 1987. B. Credibility of the Witnesses Nicolette testified on behalf of Respondent concerning all the issues in the instant case. He refreshed his memory as to dates and events from his daily diary while on the witness stand. Nicolette testified that the descrip- tions of events noted in his diary were written down soon after they occurred and were accurate. Nicolette had used the diary to prepare for his appearance at the trial here and it was clear that he relied on the diary for his recollection about many of the relevant events. Un- fortunately, Nicolette's diary and his memory were shown to be inaccurate. For example, Nicolette testified that on 19 January 1987, when he had no trouble making the lengthy trip from Parsippany to Cold Spring despite a recent snowfall, DePolito had called Bumstead to say he was snowed in and could not work. This testimony purported to show that DePolito was not a dedicated employee. In fact, DePolito had notified Bumstead sever- al days before January that his daughter was scheduled for surgery that day, and Bumstead had told DePolito to take the day off. DePolito had not called Synergy on January to say he was snowbound.4 Nevertheless Nico- lette's diary clearly shows a note for 19 January 1987 that DePolito was snowed in. The diary and Nicolette's testimony are thus inaccurate. Further, Nicolette gave detailed testimony about telephone calls made to him by DePolito and Bumstead on 3 February 1987 the day before Nicolette discharged DePolito. Nicolette stated that DePolito and Bumstead called him in Vermont at 10 and 11 a.m., respectively, to describe an altercation that had just taken place between them. Nicolette's diary sup- ports this version of the events. However, the documen- tary evidence as well as the testimony of all the other witnesses called on this point by both Respondent and the General Counsel shows that the telephone calls were made at the end of the work day after 4 p.m. Nicolette testified that in order to surprise DePolito, whom he claimed to have found to be devious, he told DePolito he would be in Cold Spring in 2 days on 5 February, when, in fact, he intended to be there the next day, 4 February, and so informed Bumstead. However, Bum- stead's testimony as well as Nicolette's diary show that Nicolette intended to be in Cold Spring on 5 February but changed his mind after speaking to Depolito and Bumstead. Thus, the elaborate story about planning to surprise DePolito was shown to be contrary to fact. There are other similar examples in the record which convince me that both Nicolette's testimony and his diary are unreliable, but I shall not detail all of them. Further, I observed that Nicolette was uncooperative on cross-examination. Due to my findings, I shall not rely on Nicolette's testimony where it is disputed. Wayne Bumstead testified on behalf of Respondent. Bumstead contradicted Nicolette in certain important re- spects. Thus, while Nicolette admitted that Bumstead told him that employee Glen Pennachio mentioned sign- ing a union card, Bumstead denied telling Nicolette. Fur- ther, Bumstead changed his testimony about whether he and Nicolette discussed DePolito's union activities when 4 A copy of the hospital bill for the surgery was entered into evidence. 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DePolito was discharged. I shall not credit Bumstead's testimony where it is contradicted by more reliable evi- dence. Stanley Sather and Robert Crissey testified on behalf of Respondent. I shall credit their testimony. Frank DePolito testified on behalf of the General Counsel. DePolito's testimony was consistent and in accord with the documentary evidence. DePolito's testi- mony sucessfully withstood a vigorous cross-examina- tion, I shall credit it. Randy Collazo testified on behalf of the General Counsel. Collazo is still an employee of Respondent. Al- though in a vulnerable position, Collazo answered read- ily and was cooperative on cross-examination. I shall credit Collazo's testimony. Paulette Pennachio testified on behalf of Respondent. About some matters, she was less knowledgeable than the witnesses who had participated directly in the events at issue. Furthermore, Pennachio has worked for Bum- stead for over 9 years and was personally loyal to him; this fact caused her to shade her testimony. However, I shall credit her testimony on matters about which she had direct knowledge. C. Supervisory Issue Respondent argues that DePolito was a supervisor when he was discharged in February 1987. Respondent asserts that DePolito had been manager of branch 4075 when it operated out of DePolito's home, and that when Economy Gas was purchased by Synergy, Bumstead became branch manager and DePolito became service manager of branch 4076. Three drivers were employed to assist DePolito: Stan- ley Sather from late 1985, until 13 February 1986, Robert Tobin from 12 February, until sometime in the spring of 1986, and Randy Collazo beginning on 12 May 1986. DePolito and Sather had known each other for about 10 years when DePolito told Sather there might be a job for him at Synergy Gas. DePolito told Sather he could have the job but that he would have to speak to Nicolette first. DePolito and Sather drove to Parsippany and met with Nicolette in his office. Nicolette told Sather about Synergy's operations, procedures, and the accounts he would have to familiarize himself with. Sather filled out an employment application form at Ni- colette's desk and then Nicolette told Sather he had the job with Synergy. Sather testified that DePolito fired him without giving him a reason: DePolito came to his house and asked for the keys to the truck. DePolito cre- dibly testified that Nicolette instructed him to fire Sather because Sather had failed to come to Parsippany to pick up a truck. Nicolette gave DePolito a termination slip and told him how to fill it out. Pursuant to Nicolette's instructions, DePolito put "lack of performance" as the reason for termination and signed the form as branch manager. According to DePolito, Tobin was a friend of his.5 After telling Tobin about the job, DePolito took Tobin to Parsippany to meet Nicolette. DePolito signed Tobin's new employee form as "branch manager." De- Polito testified that Tobin was out sick with the flu for 1 week and Nicolette fired him although DePolito did not want to discharge Tobin. After Tobin's termination, Ni- colette told DePolito to advertise in the newspaper for a new driver; Randy Collazo answered the advertisement. He was interviewed by DePolito and filled out an appli- cation form which DePolito signed as "employment manager." Then DePolito told Collazo that they would have to go see Nicolette in Parsippany. On 12 May 1986, DePolito and Collazo saw Nicolette in Parsippany. Nico- lette reviewed Collazo's application form and asked about his prior work experience. Nicolette told Collazo he was hired. Collazo filled out a new employee form which DePolito signed as "branch manager." At some point, DePolito grew dissatisfied with Col- lazo and told Nicolette that he should be discharged. But Nicolette said that he thought Collazo had potential and should be kept on. DePolito introduced Nicolette to an- other potential driver identified as "Steve." However, after Nicolette interviewed Steve he decided that Steve was a "hustler" and would not be a good employee. Ni- colette told DePolito not to hire Steve. From the summary given above, it is not at all clear that DePolito had the authority to hire and fire employ- ees while he was in charge of branch 4075. I am not pur- suaded that he had the authority effectively to recom- mend the hiring and firing of employees; Nicolette always interviewed DePolito's prospective drivers and told the men they actually had the job. Moreover, Nico- lette told DePolito to fire Sather and Nicolette himself fired Tobin. Finally, Nicolette vetoed DePolito's wish to fire Collazo and hire Steve. Before Synergy Gas took over Economy Gas and Bumstead became branch manager, DePolito handled all the paperwork for branch 4075. He submitted timesheets to the payroll office in Parsippany for himself and the driver and he submitted customer records to Parsippany for billing. The testimony shows that DePolito had the authority to approve time off for the driver. DePolito spoke to Nicolette on the telephone often concerning the Cold Spring operation. The record is unclear about De- Polito's authority to direct the employees without con- sulting with Nicolette. Once Economy Gas was purchased by Synergy, a wholly different system was in place. The new branch headed by Bumstead was given a new number, 4076. The testimony of all the credible witnesses shows that Bumstead ran the branch. Every morning, Bumstead met with the other employees and gave out the day's assign- ments. Bumstead decided which employee would service each customer, but he left it to the employees to decide in what order they would complete their tasks. Employ- ees asked Bumstead for time off.6 Billing of customers was handled by secretary Paulette Pennachio. At the be- ginning, Pennachio worked with the Parsippany billing office, but the intention was that eventually Pennachio 6 DePolito asked Bumstead's permission to be absent on 19 January Tobin did not testify in this proceeding. 1987. Collazo asked Bumstead for permission to take time off. SYNERGY GAS CORP. 903 would bill all customers of branch 4076 directly. Ac- cording to Bumstead and DePolito , it took a while for the Synergy computer system to merge the paperwork of old branch 4075 into the paperwork of new branch 4076. Thus, for a few weeks after the purchase in late October, 1986, the Synergy computer continued to generate paper for DePolito and Collazo's timesheets and payroll sepa- rate from that of branch 4076 . Further, billing for the ap- proximately 23 customers DePolito had serviced was not immediately integrated into branch 407. Consequently, DePolito continued to do some paperwork for branch 4075 in the fall of 1986 . But Bumstead and DePolito both testified that by January 1987, the Synergy computer system had absorbed old branch 4075 into new branch 4076 and DePolito no longer had any responsibility for payroll or billing. One employee was hired after the purchase of Econo- my Gas. Nicolette hired Robert Crissey in early Novem- ber and informed Bumstead that he would be working in Cold Spring. On the day that the purchase of Economy Gas became effective, Nicolette met in Cold Spring with Bumstead, DePolito, and the other employees . Nicolette informed them all that Bumstead would be branch manager and DePolito would be service manager. Respondent relies on this fact to support its claim that DePolito was a su- pervisor. However, Bumstead testified that Nicolette told him to run branch 4076 as though it were his business. Bumstead described his job as to "cover all bases on whatever had to be done and make sure the operation ran smoothly." Bumstead stated that DePolito's job was to take care of the service work and installations and "layout the whole direction for the rest of the crew." However, from Bumstead's own testimony it is clear that Bumstead and not DePolito gave the crew work assign- ments everyday. Further, Bumstead also testified that he himself checked installations performed by the employ- ees and saw that the work was done properly . Because DePolito was the most experienced employee, Bumstead assigned Collazo and Crissey alternately to work with DePolito on assignments so that they would learn to do installations. The issue to be decided is whether on 4 February 1987, when he was discharged by Respondent, DePolito was a supervisor. I find that he was not. I do not believe that DePolito had authority to hire and fire employees before November 1986; there is no evidence that he had any such authority after November 1986. Once Bumstead took over the Synergy operation in November 1986, Bumstead assumed all authority to assign work to em- ployees, lay out the routes , assign crewmembers to work together, and to grant time off. In addition, Bumstead re- viewed the work to see that it had been done properly. There is no evidence that DePolito had any authority to discipline employees or adjust their grievances. The con- clusion is inescapable that DePolito was an employee within the meaning of the Act on the day he was dis- charged. D. DePolito's Discharge Nicolette made the decision to discharge DePolito; he testified that he arrived at this decision while speaking to DePolito in the Cold Spring office on 4 February 1987. Nicolette attributed his decision to DePolito's attitude. The General Counsel asserts that Nicolette based his de- cision on DePolito's union activities. 1. Union activity DePolito and Collazo testified that they began discuss- ing the benefits of bringing a union into the plant in De- cember 1986. During the first week of January 1987, De- Polito obtained authorization cards from Local 456. De- Polito and Randy Collazo signed the cards in early Janu- ary. The two men visited Glen Pennachio at home in January 1987 and obtained his signature .? Paulette Pen- nachio testified that she was home with her brother Glen when DePolito and Collazo came to the house and gave him a union authorization card. 2. Respondent's awareness of union activity On Friday, 30 January 1987, Glen Pennachio was in the office with Bumstead and Nicolette. Pennachio re- ceived his paycheck and when he saw that it did not contain the raise he expected, he got upset. According to Bumstead, Pennachio went "off the wall" and quit his job. The next day, Pennachio called Bumstead to apolo- gize for his behavior; he also told Bumstead that DePo- lito had come to his house with union authorization cards. Pennachio told Bumstead that he had signed the card and then had second thoughts about it. Pennachio explained to Bumstead that he had quit the job "because he didn't want to be any part of [the Union]."" On Monday, 2 February, Glen Pennachio came to the plant saving that he would work his 2 weeks ' notice. When Bumstead expressed surprise, Pennachio quit again. Sometime after this, Bumstead gave Pennachio his job back and got him the disputed raise.9 On 23 January 1987, John Russell, Synergy's vice president of operations, told Nicolette that he had heard a rumor that DePolito was organizing a union in Cold Spring and asked him to check it.1 ° Nicolette testified that he did nothing about following Russell's instructions until 30 January when he spoke to DePolito in the park- ing lot of a diner in Cold Spring . Nicolette acknowl- edged that he called Bumstead on 26 January at 3 p. m. to ask him about "general attitudes and Frank [DePolito] and what was transpiring up there," but he claimed that despite Russell's questions 3 days before, he did not ask Bumstead about the union rumors. According to Collazo, after the men had signed the cards in January, Collazo was in the office with DePo- r Glen Pennachio did not testify in this proceeding. 8 Paulette Pennachio also testified that her brother quit because he did not get the raise and too many people were bothening him about the Union. 9 Pennachio apparently had a volatile temper. He had quit once before, on 7 January 1987, in an upset over a truck that malfunctioned. After he was out for 2 days, Bumstead let him come back to work . Paulette Pen- nachio, sister of Glen Pennachio, testified that he got upset and "loud" with Bumstead when the trucks broke down. Pennachio has a tendency to lose his temper and use profanity on such occasions ; other employees heard Glen Pennachio use profanity to Bumstead. 10 Russell obtained information about the rumor from Fleet Director Joe Gerard, whose son was a salesman in Cold Spring in late 1986. 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lito, Bumstead , and Glen Pennachio. DePolito said he had told Bumstead about the Union and Bumstead shook his head saying. "I wish you hadn't said that." I credit this testimony, which is supported by DePolito's testimo- ny. Sometime in January 1987, according to DePolito, he and Bumstead were in the office together after business hours. DePolito told Bumstead the men needed a union. Bumstead replied that the men should wait until the end of the month because he did not want anything to inter- fere with his first quarterly payment from Synergy, which was due soon. Bumstead denied that this conver- sation took place; instead, he testified that he had a con- tract with Synergy and that union organizing could not affect his payments. However, after relying heavily on the contract of sale, Respondent did not introduce it into evidence and thus there is no proof that Synergy was ob- ligated to make quarterly payments no matter what hap- pened to the business. Moreover, there is no evidence that Synergy was obligated to continue Bumstead as branch manager. I credit DePolito's version of this con- versation. According to Collazo and DePolito on 21 or 22 Janu- ary 1987, Crissey told DePolito that Nicolette wanted to see him. Collazo and DePolito were already in their cars. DePolito went in to the office and Collazo stayed in his car. In 5 minutes, Nicolette and DePolito came out and got into the front seat of DePolito's car. Collazo fol- lowed in his own car and they drove to the Countryside Terrace, a local restaurant. On the way, DePolito told Nicolette that the branch was not being run properly but Nicolette said they would have to put up with Bumstead for 2 more years." In the restaurant parking lot, Collazo parked on the passenger side of DePolito's car, near Ni- colette. After a minute, Nicolette rolled down the window and asked Collazo what his "problem" was. Collazo told Nicolette that the plant was badly run. Then Nicolette asked "what's with this Union bull shit?" DePolito and Collazo said they did not know what Ni- colette was talking about. Nicolette replied that he heard DePolito and Collazo were trying to start a union. Nico- lette said he heard from Bumstead that Collazo and De- Polito went to Pennachio's house to obtain a signature on a card. Then Nicolette said he wanted to talk to De- Polito alone and Collazo drove away. According to De- Polito, after Collazo left, Nicolette said that the union talk was already in Farmingdale and he could not cover it up. Some further discussion about the branch ensued. Nicolette claims that this conversation took place on 30 January. t 2 In his version, when he went to the diner parking lot with Collazo and DePolito, the three men discussed medical insurance, wages, and friction among the employees in the shop. Then, according to Nicolette, he sent Collazo away and asked DePolito about the Union. DePolito denied that he had been talking union. Nicolette testified that one cause of friction in the Cold Spring branch concerned accusations that employees " Nicolette had told DePolito that Synergy was only using Bumstead to gain a storage facility and that Bumstead would be discharged soon after the purchase of Economy Gas. 12 Bumstead's testimony supports the 30 January date. were not documenting the time spent or the materials used on a job. He instructed DePolito to adhere to pa- perwork rules that would be instituted.13 Nicolette testi- fied that he told DePolito he was a member of manage- ment and could not engage in union activity. After this conversation, Nicolette testified, he saw Bumstead again and told him about the union rumor and DePolito's denial. Nicolette also urged Bumstead to see that the paperwork was done correctly. On cross-exami- nation, Nicolette changed his testimony to say that he did not ask Bumstead about the union rumors until after he fired DePolito. At that time, he and Bumstead dis- cussed Glen Pennachio's involvement with the Union. Based on Nicolette's shifting testimony and on Collazo's and DePolito's credited testimony, I find that on 30 Jan- uary 1987 Nicolette asked Bumstead about the Union and that the two discussed Glen Pennachio. I find that the conversation in the diner parking lot took place on 30 January rather than earlier as contend- ed by DePolito and Collazo. I credit DePolito's and Col- lazo's version of the conversation. Thus, I find that by asking the two employees about "the union bull shit" and telling them that he knew they had solicited a card from Glen Pennachio, Nicolette conveyed to the em- ployees that he disapproved of the union activities about which he was seeking information. Respondent thus co- ercively interrogated its employees in violation of Sec- tion 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984). 3. Events leading to DePolito's discharge Nicolette testified that DePolito had some problem being reimbursed for his business telephone calls on behalf of Synergy; on Christmas Eve 1986, Nicolette and DePolito worked on recalculating the figures so the bill could be resubmitted for payment. Although Nicolette did not testify on direct examination about any warning he had ever given DePolito, on cross-examination, Nico- lette recalled that on Christmas Eve he warned DePolito to "knock it off" about his "attitude towards the compa- ny . . . towards Wayne." DePolito denies this. I do not credit Nicolette and I find that this purported warning was an afterthought in Nicolette's testimony. On 3 February 1987, a dispute erupted between DePo- lito and Bumstead concerning the hose winder mecha- nism of a tank truck. At 4:30 p.m. Bumstead was in the yard at the rear of the truck when DePolito walked by. DePolito and Collazo claim that DePolito told Bumstead he would see electrical wires arcing and that Bumstead threw down his tools and walked away. When DePolito said, "I guess we won't see the wires." Bumstead replied, "I don't need any of your wise bullshit." Bumstead then called DePolito a "guinea bastard" and DePolito called Bumstead "an asshole." Bumstead ordered DePolito to put his keys on the desk and get off the property. Bum- stead claims that the argument started when DePolito told him he "was an asshole for working on the trucks" because he was not a mechanic. Both men agree that '' On the next workday, Bumstead distributed blank forms to be used to record time and materials used on each job. SYNERGY GAS CORP. 905 Bumstead ordered DePolito to go home. I credit DePoli- to's and Collazo's version of the events. Soon after this exchange Bumstead called Nicolette, who was in Vermont. He told Nicolette, "I've had it. I don't need the nonsense." Bumstead did not ask Nico- lette to discharge DePolito, he just wanted Nicolette to talk to DePolito. Bumstead testified that he did not know Nicolette was going to fire DePolito. DePolito also called Nicolette after he got home and told the latter about the incident. Nicolette said he would be in Cold Spring in a couple of days. Nicolette testified that Bumstead called to say that De- Polito was cursing and that he "refused ... to do any jobs" and did not turn in his paperwork. I do not credit this testimony; Bumstead did not testify that he men- tioned paperwork or the failure to do any jobs when he called Nicolette on 3 February. According to Collazo and DePolito, on 4 February, the day of DePolito's termination, DePolito came to work and all went normally. In the late afternoon, Collazo and DePolito returned from their work and Nicolette was in the office. Nico- lette told DePolito "aparently what we talked about before didn't sink in." Nicolette said DePolito and Bum- stead told different stories and he began reviewing De- Polito's shortcomings with him. Nicolette took out his notebook and told DePolito that he had failed to pick up a truck once in November and that there was too much mileage on the truck. Then Nicolette told DePolito he was terminated. DePolito asked why he was being dis- charged. He told Nicolette to look at his worksheets to see how much work he did. Nicolette replied that they were lost. At some point in this conversation, Collazo said Bumstead was using the pickup truck after hours for personal .use and that that accounted for the excessive mileage. According to Nicolette, he was in the Cold Spring office on 4 February when DePolito came in after work that day.14 Nicolette testified that he said to DePolito, "what's all the yelling and screaming going on again. I thought we talked this Friday." DePolito replied, "So?" Nicolette asked if DePolito had been turning in his pa- perwork. DePolito indicated that he had but that maybe Bumstead threw it away. Nicolette stated that he then fired DePolito because the latter was "very short, cop- ping attitudes with me." DePolito's attitude was "nega- tive." Nicolette stated that he had gone to Cold Spring with the purpose of getting DePolito and Bumstead to- gether and ironing out their difficulties, not with the intent of firing DePolito. Nicolette testified that before he spoke to DePolito on 4 February, he had not planned to discharge him but only to admonish him to get along better with Bumstead. Nicolette testified that his decision to discharge DePolito came about because DePolito shrugged his shoulders and seemed unconcerned. DePo- lito's termination report was prepared by Nicolette. It states that DePolito was terminated for "Attitude and Actions Nonbecoming a Manager." The termination date shown is "2/4/87" and it bears Nicolette's signature date 14 Nicolette had discussed the argument of the day before with Pau- lette Pennachio before DePolito entered the office. "2/2/87." Nicolette testified that he signed the document on 4 February; he could not explain why it was dated 2 February. The document thus suggests that Nicolette de- cided to discharge DePolito before 4 February 1987. Even though Nicolette's initial testimony was that he fired DePolito for his "Attitude" and even though the official termination report supports this reason, Nicolette then added to his testimony and seemed to say DePolito was fired for a long list of shortcomings. Respondent in- troduced testimony purporting to show that DePolito was an unsatisfactory employee during 1986. Nicolette testified about a number of incidents involving alleged failings by DePolito. Some of these instances involve problems which Bumstead; the immediate supervisor, at- tributed to other employees: This included the Brewster North delivery missed by Collazo and the use of too much copper tubing by Crissey and Collazo. Other in- stances were satisfactorily explained by DePolito in unre- butted testimony: Bumstead complained that DePolito failed to make a delivery to a customer named Elton. The testimony shows that DePolito could not get up the Elton driveway in the Synergy pickup truck due to snow; however, when DePolito offered to try again, Bumstead's wife informed him that Bumstead had made the call already in a four-wheel-drive vehicle. Bumstead testified that a customer named Ritell complained that he ran out of gas because DePolito was not making auto- matic deliveries to him. However, Bumstead could not testify that Ritell had indeed requested automatic service, Nicolette testified in such a way as to imply that Bum- stead had complained that DePolito stole some company property from a truck. However, Bumstead's version of the event was different; Bumstead saw DePolito remove something from the truck, but he did not check to see if company property was missing. DePolito credibly testi- fied that he had removed his own tools from the truck. The only serious example of failure by DePolito to be cited by Bumstead and Nicolette involved the Lake View cottages job. This work called for numerous indi- vidual tank installations on a property in the process of being developed. Some of the housing units were near soggy ground. Instead of placing the tanks at the usual distance from the dwellings, which would have entailed the danger of tanks toppling over due to the unsteady ground, DePolito and the other employees placed the tanks close to the housing units. Bumstead considered this a code violation and informed DePolito of this fact in Nicolette's presence . He said the tanks would have to be moved. Whether DePolito had indeed permitted an unsafe installation to be carried out is immaterial. On various days, including the last day of the trial, many months after the alleged improper installation, witnesses testified that the tanks were still in the same position. I fmd that if the problem was as serious as is contended by Respondent, the tanks would long since have been moved. Thus, I fmd that Respondent did not take the problem seriously enough to correct the situation during the months after it first occurred and that it was not a major failing by DePolito. I find that the long list of shortcomings was an afterthought. Nicolette's testimony 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about the alleged failings of DePolito is not reliable and REMEDY is not supported by Bumstead's testimony. 4. Discussion and conclusions I find that the motivating factor in the discharge of DePolito was that he was organizing the Union at the Cold Spring branch. Nicolette admittedly learned of the union organizing by DePolito on 23 January 1987, less than 2 weeks before he fired DePolito. On 30 January, he coercively interrogated DePolito and Collazo about their union ac- tivities and told DePolito that headquarters knew of the organizing efforts. Nicolette and Bumstead discussed the Union before Nicolette discharge DePolito. Bumstead knew that DePolito had approached Glen Pennachio about the Union and Nicolette mentioned this fact to De- Polito on 30 January. That Nicolette had antiunion animus is made clear by his use of the term "the union bull shit." I find that the exchange of words between DePolito and Bumstead on 3 February was used as a convenient excuse to discharge DePolito. Both General Counsel's and Respondent's witnesses testified that Glen Pennachio cursed and yelled on various occasions when things did not go his way, yet Pennachio was not fired, Pennachio was allowed to come back after he quit in a huff and Pennachio was given a raise. Thus, I find that DePolito would not have been discharged for the brief episode on 3 February had he not also been engaged in an effort to bring in the Union. See Wright Line, 251 NLRB 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983). Bumstead, the immediate supervisor, did not ask Nico- lette to discharge DePolito. Indeed, Nicolette said he had no intention of discharging DePolito until he saw that the latter had an "attitude." Yet Nicolette did not explain in any detail what the attitude consisted of and why it justified the termination. Nicolette did not explain why DePolito's "attitude" was worse than Glen Penna- chio's. Respondent's official termination report mentions "attitudes and action," but it makes no reference to the long list of purported job-related inadequacies Nicolette described at the hearing. As shown above, these inad- equacies were a sham . Thus, I find that the so-called atti- tude and failings cited to support the discharge were a pretext. See Wright Line, supra. In conclusion, I find that Respondent discharged De- Polito because he was organizing the Union at the Cold Spring plant. Respondent thus violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By coercively interrogating its employees concern- ing their union activities, Respondent violated Section 8(a)(1) of the Act. 2. By discharging Frank DePolito because he support- ed the Union, Respondent violated Section 8(a)(3) and (1) of the Act. Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act.' s The Respondent having discriminatorily discharged Frank DePolito, it must offer him reinstatement and make him whole for any loss of earnings and other bene- fits, computed on a quarterly basis from date of dis- charge to date of proper offer of reinstatement, less any net interim earnings , as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).18 Respondent must remove from its records any mention of DePolito's discharge on 4 February 1987. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17 ORDER The Respondent, Synergy Gas Corp., Cold Spring, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their union activities. (b) Discharging its employees because they engage in concerted activities. (c) 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 Frank DePolito immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice 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 discrimina- tion against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the dis- charge of 4 February 1987 and notify Frank DePolito in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him. (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- 15 The General Counsel's request for a visitatorial Order is denied. 16 Under New Horizons, interest is computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. 6621 . Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 17 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. SYNERGY GAS CORP. 907 essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Cold Spring, New York facility copies of the attached notice marked "Appendix."" 8 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, 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. 18 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 To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge our employees for engaging in union activities. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. WE WILL offer Frank DePolito immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent positon , without pre- jucice to his seniority or other rights and privileges pre- viously enjoyed and WE WILL make him whole for any loss of earnings, plus interest. WE WILL remove from our records any mention of the unlawful discharge of Frank DePolito. SYNERGY GAS CORP. 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. Section 7 of the Act gives employees these rights.