H. M. Parker & Son

National Labor Relations Board - Board Decisions

Nov 10, 1969

179 N.L.R.B. 540 (N.L.R.B. 1969)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. M. Parker & Son and Teamsters Automotive
Workers , Local 495, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 31-CA-1216
November 10, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On July 29, 1969, Trial Examiner David E. Davis
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that they
are free from prejudicial error. They are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.
The Trial Examiner found that, although the
circumstances gave rise to serious questions, the
Respondent's October wage increase did not violate
Section 8(a)(1) since the Company had announced in
June that wages would be raised in October. The
General Counsel excepts, arguing that the amount,
manner, and timing of the increase lead to the
conclusion that it was intended to affect the
employees' decision on union representation, and
therefore violated Section 8(a)(1). We agree.
In July 1968, employees in the unit were granted
an increase of 15 cents an hour following an
announcement made in June, at which time it was
also announced that a further increase would be
forthcoming in October. After Townsend's
discharge, various employees were called into the
office of Richard Owen, the welding division
manager, and informed that Townsend had been
discharged for disloyalty to the Company and that
their wages had been increased as of October 1 by
approximately 31 cents an hour to equal the union
rate minus an amount equal to union dues.
Respondent's witnesses testified that the increase
had been effected September 30 before the
Company knew of any union activity. The Trial
Examiner found that all necessary signatures could
not have been obtained on that date and that,
although Townsend was paid through October 8, his
final paycheck did not reflect the increase. From
this, the fact that the raise was announced in
connection with Townsend's discharge for disloyalty
and was specifically tied into the union rate and
union dues, we conclude that the amount of the
raise and the manner of its announcement were
determined with an eye to the organizing campaign
and that it was intended to discourage employees
from engaging in union activities and thus violated
Section 8(a)(1) of the Act.' We shall modify the
Trial Examiner's Recommended Order accordingly
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, H. M. Parker & Son, North
Hollywood, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Add the following as paragraph 1(b) of the
Trial Examiner's Recommended Order and reletter
the present paragraph 1(b) as 1(c):
"(b) Granting wage increases to discourage
employees from joining, assisting, or voting for
Teamsters Automotive Workers, Local 495,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization."
2. Insert the following after the first full indented
paragraph of the Appendix attached to the Trial
Examiner's Decision:
WE WILL NOT grant wage increases to
discourage employees from joining, assisting, or
voting for Teamsters Automotive Workers, Local
495, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
'Exchange Parts Co. 375 U S 405
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E DAVis, Trial Examiner This case, tried at
Los Angeles, California, May 20 and 21, 1969, pursuant
to a charge filed October 14, 1968, and a complaint issued
March 4, 1969, presents the following issues: (1) whether
Respondent discharged one of its employees in
contravention of Section 8(a)(1) and (3) of the Act, (2)
whether Respondent during October 1968, unlawfully
announced and granted wage increases to employees in a
179 NLRB No. 87
H. M. PARKER & SON
bargaining unit for which the Union filed a petition; and
(3) whether a certain employee designated as dock
foreman and/or pumper is a supervisor within the
meaning of the Act.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and General Counsel, I make the following'
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
H. M. Parker & Son, herein called Respondent, is a
California corporation with its principal place of business
located in North Hollywood, California, where it is
engaged in the sale of automotive parts and welding
supplies at wholesale. Respondent, in the course and
conduct of its business, annually purchases and receives
goods valued in excess of $50,000 from points located
outside the State of California at its North Hollywood
store or purchases and receives goods valued in excess of
$50,000 at its North Hollywood location from suppliers
located in California who receive said goods from outside
the State of California. Respondent in its answer admitted
and I find that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Workers Local 495,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A The Status of Thomas A Fratus
Initially Respondent admitted that Thomas A Fratus
was, as the General Counsel alleged in the complaint, a
supervisor within the meaning of Section 2(11) of the Act.
At the outset of the hearing, Respondent was permitted to
amend its answer to deny the supervisory status of Fratus.
Contrary to Respondent's contention, I find that Fratus,
at all times material herein, was a supervisor within the
meaning of the Act
The evidence shows that Fratus had authority to
responsibly direct five truckdrivers employed at
Respondent's North Hollywood operation and that he
exercised independent judgment in the use of such
authority. While Fratus' wages, hours, and general
benefits were similar to those of his subordinates, it is
plain that he was regarded as their "boss," had authority
to direct the quantity and manner in which they loaded
their trucks, directed the order of priorities of delivery,
directed removal of material from one truck to another,
and did discipline the truckdrivers.' The fact that he did
not have the authority to hire, fire and give
recommendations for changes in wages does not require a
different finding as the criteria for the determination of
supervisory status are interpreted in the alternative and
not in the conjunctive. Fratus in his testimony agreed that
in directing the running of the routes of the truckdrivers,
including the loading and priority of deliveries, he used
independent judgment. Richard L. Owen' and Fratus
testified to an incident occurring about 4 months prior to
the discharge of truckdriver Richard B. Townsend in
541
which Townsend questioned Fratus' authority At that
time Owen in unmistakable terms told Townsend that
Fratus had the authority to tell Townsend how
Townsend's route should be run ' Owen further testified
that Fratus could instruct drivers how much of a load to
carry and that Fratus used independent judgment in
making this determination, that only in special cases was
it necessary for Fratus to consult Owen or Woodmansee,
the North Hollywood store manager Owen also testified
that Fratus had authority to order the men to shuffle their
load from one truck to another As Respondent's business
required a constant but fluctuating flow of supplies to
numerous customers and to several other of Respondent's
stores, it is clear that dock foreman and truck supervisor,
Fratus, was the focal point of authority over the
truckdrivers' deliveries and proper loading Such authority
obviously entailed responsible direction and use of
independent judgment within the meaning of the Act I so
find.,
B Preliminary Findings
Townsend was employed by Respondent from May
1964 to the evening of his discharge on October 8, 1968.'
For the last 3 years of his employment, Townsend was a
truckdriver assigned to the West Valley route This route
admittedly was the most difficult route and required
loading the truck in the morning and returning in the
evening.' Townsend's truck serviced the San Fernando
Valley 3 days per week and 2 days per week included
Castaic and Newhall. Respondent's main store, the North
Hollywood store, was the headquarters of the North
Hollywood Welding Division It was from this location
that Respondent's customers and other stores were
serviced by the truckdrivers. Townsend's route included
customers in the areas mentioned above as well as
Respondent's stores in Canuga Park, Wheeling,
Lancaster, Van Nuys, San Fernando, and Culver City
From the evidence, I find that Respondent employs
sales or field representatives who solicit customers for the
Welding Division. These sales representatives also contact
Respondent's stores as some customers deal directly with
the stores in their vicinity. The chief products handled by
the truckdrivers consist of various gases, stored in tanks
called cylinders weighing from 90 pounds to 180 pounds
The gases handled are oxygen, compressed air, nitrogen,
hydrogen, helium, argon and mixtures of various gases,
however, oxygen approximates 35 percent of the cylinders
delivered on Townsend's route which included construction
sites, machine shops and a hospital. It is plain from the
evidence that the demand on Townsend's route fluctuated
from day to day in significant amounts and in substantial
amounts in case of an emergency, such as a breakdown of
machinery at a construction site or excessive demand by a
hospital on the route Although Respondent's stores also
maintained a stock of limited supplies, it is apparent that
'Although the discipline consisted of "bawling" out the men , often in
profanity , nevertheless , it is clear, that this was a form of discipline which
the truckdrivers understood as emanating from one authorized to discipline
them
'Respondent 's welding division manager, the transcript refers to Owen at
various times as "Owens "
'Townsend credibly testified that thereafter he complied
'Sweeney & Co, Inc, 176 NLRB No 27
'Hereinafter all dates will refer to the year 1968 unless otherwise
specified
'Other trucks could and did return the same day to replenish supplies or
meet emergency needs
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at times the demands on the stores by customers depleted
their supplies to the point where they could not supply
their customers The Newhall store, much mentioned in
the testimony, seems to be a prime example In this
regard, it is rather significant that after Townsend's
discharge, the Newhall store raised its customary reserve
stock from 18 cylinders to 30 and Townsend's successor
on the route called at the Newhall store on different days
while the hospital was no longer a customer
As a result of the above described fluctuation and
varying demands certain customers and particularly the
Newhall store complained on occasion that they did not
receive sufficient cylinders to meet their needs. Townsend
admitted that as he progressed on his route excessive
demands on a particular day by one customer could and
did lead to a failure to fully supply later customers and
sometimes the Newhall store.
In case of a genuine emergency the North Hollywood
store maintained a small truck which could be dispatched
to a customer or store with additional cylinders and this
was done on several occasions.
Respondent's witnesses attempted to minimize the
fluctuating demands by testimony which indicated that
failure to fully meet the demands of customers and the
Newhall store by Townsend was due to Townsend's failure
to take sufficient supplies aboard his truck. I do not credit
this testimony for reasons discussed infra
C. Townsend's Discharge
The evidence shows that the truckdrivers during 1968 at
various times made remarks while at the dock at the
North Hollywood location about joining a union At times
the remarks were made in a jocular vein but at other
times were made seriously. Fratus overheard these
remarks and it is clear from the evidence that
management, including Owen, was well aware of such
talk
Sometime in August, employee discussions reached a
serious stage and Townsend volunteered to contact a
union About September 15, Townsend met Lee, a
representative of the Union, and set up a meeting for
Thursday, October 3 for the employees The meeting was
to be held at Townsend's home and Townsend spread the
word to all the employees ' The night before the scheduled
meeting Townsend invited Fratus explaining that he did
not know whether Fratus could be considered part of
management. Eight employees including Fratus met with
Lee at Townsend's home on October 3 and after listening
to Lee describe the benefits of union organization,
executed union authorization cards.8
On September 24, Townsend applied for and received a
loan of $400 from the credit union operated by
Respondent's employees Elmo J. Woodmansee,
Respondent's manager at the North Hollywood
warehouse, an admitted supervisor, was president of the
credit union. Woodmansee received the application for the
loan from Townsend and signed as a witness to the fact
that Townsend received the loan The loan was approved
by the credit committee which included Thomas Gardner,
Respondent's comptroller, Will Jensen, manager of
Respondent's Burbank store, and Charles Mensloff,
Respondent's welding division purchasing agent.
Woodmansee testified that the loan was to be repaid by
deductions from salary According to Woodmansee's
testimony, he was informed by Owen the latter part of
August that Townsend was to be discharged in the near
future and Woodmansee did not inform any members of
the credit committee of this fact nor commented to the
credit committee for or against the loan. Accordingly, the
loan was granted in routine fashion.
On October 8, when Townsend returned to
headquarters after completing his route, Woodmansee
called him into an office and told Townsend that he was
discharged. According to Townsend, Woodmansee said
that he expected the employees to be loyal and when
Townsend had "gone around making complaints and
derogatory remarks to customers and other employees."
Townsend then asked Woodmansee to level with him and
give him the real reason for his discharge, asking why was
he letting him go if it was not for union activities
Townsend further testified, "Then, he got a blank look
and he acted like he didn't know what I was talking
about " Woodmansee then gave Townsend a payslip, told
him to make it out, saying he would have to let him go.
Townsend made out the payslip and added, at
Woodmansee's instructions, 4 hours' overtime. Townsend
testified that this was the first time he had been paid for
overtime since his employment by Respondent.
On the morning of October 9, Townsend telephoned
Woodmansee and told him that he would call in person
for his final check and that he wanted a termination slip
to show the Department of Unemployment. When
Townsend arrived and was handed his check, he asked
Woodmansee for his termination slip. Woodmansee
replied that Owen said just to give the reason. Townsend
asked what reason should he give. Woodmansee did not
reply but gestured with his hand and Townsend asked,
"being a disloyal employee?" Townsend then left. From
the testimony adduced it seems clear that Respondent's
truckdrivers were paid every 2 weeks, that Townsend was
paid through October 8 for the pay period commencing
September 29 and ending October 12.
Woodmansee's testimonial account of Townsend's
discharge was in substantial agreement with regard to the
basic facts testified to by Townsend However,
Woodmansee added that when he called Townsend in to
one of the offices, he told Townsend that he had to do
something that he didn't like and then informed Townsend
that his services were no longer needed. Townsend said
"that figures." Woodmansee asked what he meant and
Townsend replied that he had contacted a union
representative and had a meeting at his house and that he
was told he might be discharged for that reason.
Woodmansee testified it was a shock to him, that he did
not know about Townsend's union activity and told
Townsend he was being discharged for, "his attitude with
customers, and that we felt he was a disloyal employee,
that he had talked against our company to customers and
to other employees of the company, and that he had not
been carrying out the instructions that he had been given."
Woodmansee further testified that he was told that it
was against company policy to give Townsend a copy of
his termination notice; that he got his information about
Townsend's disloyalty from Owen and that he himself
knew no specific disparaging remarks to customers that
would indicate Townsend's disloyalty to the company.
Reading from a ,transcript of the hearing before the
State Unemployment Department,' the General Counsel
asked Woodmansee a series of questions relating to
Woodmansee's testimony at that hearing Woodmansee
'The union organization contemplated was to consist of truckdrivers and
countermen in Respondent's Welding Division consisting of approximately
18 employees
'Fratus was among the signatories
'The official nature of the transcript was not established and therefore
not admitted in evidence
H. M. PARKER & SON 543
denied that he testified at that hearing that he regarded
Fratus as supervisor but, rather inconsistently, stated that
he could have testified that Townsend wouldn't follow
Fratus' directions
With regard to the events leading to Townsend's
discharge, Woodmansee testified that he became manager
of the Respondent's North Hollywood welding warehouse
on September 1, that he was transferred from the Culver
City store where he was branch manager, that he had a
conversation with Owen prior to his transfer and that
Owen informed him that they were having problems with
Townsend and that as soon as Woodmansee got squared
away in his new position, Townsend would be replaced,
that after he assumed his new position he had one
complaint about September 15 from Clark, the manager
of the Newhall store that Townsend did not have enough
cylinders on his truck to take care of customers in the
area Woodmansee testified that later on the same day he
talked with Townsend and told Townsend that he had
checked on the dock and from the information he had
received there were enough cylinders on the dock and
Townsend should have taken more.'° Woodmansee stated
that on this occasion it was necessary to send out the
small truck on a special trip to the Newhall store with
additional cylinders."
Woodmansee also described a meeting between Owen,
Mitch and himself which occurred on October 7.
According to Woodmansee's testimony, the meeting was
called at Mitch's request because Mitch thought that
Townsend should be dismissed immediately. Mitch, at the
meeting, said Townsend's attitude toward customers
serviced by Mitch was causing him problems and that it
came down to a question of Townsend or himself
Questioned whether Mitch made any specific complaints,
Woodmansee stated that Mitch's statements did not recite
any specific instances of Townsend's bad attitude but
apparently were based on prior conversations with Owen 12
After Mitch said that if Townsend wasn't discharged, he
himself would leave, Owen assured Mitch that something
would be done Mitch thereupon left and Woodmansee
told Owen that "if it was the feeling of Mr Mitch and the
rest of the people involved such as Mr Clark and other
customers, Mr. Fratus, that I felt that we should fire the
man now." Owen replied that Woodmansee was right and
gave orders to discharge Townsend and replace him with
Lawrence McDonald, a warehouseman Woodmansee
denied that at the meeting between Owen, Mitch, and
himself there was any discussion of Townsend's union
membership or activity
It is clear from the Woodmansee's account, as recited
above, and specifically admitted by him that his
suggestion that Townsend be discharged immediately was
based on information he received from Owen and Mitch,
rather than any personal knowledge of Townsend's
deficiencies The one occasion when he was critical of
Townsend because of Townsend's alleged failure to load
sufficient cylinders, hardly motivated Woodmansee to
suggest Townsend's discharge as on that occasion
Woodmansee merely called Townsend's attention to the
fact a special trip had to be made and Townsend said it
1'Fratus testified that if the Newhall store did not call in their order,
Townsend was not obliged to take extra cylinders
"Woodmansee failed to ascertain whether Fratus had cleared
Townsend 's load or whether the Newhall store failed to call in an order
111 conclude from this remark and from Mitch 's later testimony that
Woodmansee was not present at all times
"The linking up events regardless of when they occurred is a recurring
characteristic of the testimony by Owen and Mitch The blurring of
specific dates and events by effusive testimony as a substitute for specificity
would not occur again Apparently it did not up to the
time of his discharge Under these circumstances, it is
necessary to examine the testimony of Owen and Mitch
concerning the reasons for Townsend's discharge
Owen testified that he made the decision to terminate
Townsend sometime in August but "the thing that finally
brought it to a head was when I got the call from Mr
Mitch " He then testified that Mitch called 3 or 4 days
before Townsend's discharge and a meeting was then held
between Owen, Mitch and Woodmansee. As Woodmansee
testified the meeting was held on October 7 and Townsend
was discharged on October 8, the call from Mitch and the
meeting hardly could have been "the thing that finally
brought it to a head," which was Owen's initial reply to
the question what caused Owen in August to make a
decision to discharge Townsend "
Owen then stated that during the meeting between
Mitch, Woodmansee and himself, Mitch said that "he had
talked to Townsend and heard that the rumor going
among the employees that Tommy was back bragging that
he was getting a better job and that he was telling the
employees this, and that he had this employment
application on his person "" Mitch also said he felt that
Townsend's attitude was bad for customer and
employment relations and that something should be done
immediately. After being prompted by Respondent's
counsel with the question, "Did he [Mitch] say anything
about his own status9" Owen replied, "Well, he was pretty
mad when he called. He said it was either him or me "1"
Owen thereupon told Mitch that he was going to make
some changes
When Owen was asked again to explain what
"accumulation of things" caused him to decide in August
to discharge Townsend, he testified that about a year ago16
he called Townsend into his office and told him that the
customer was always right, that he couldn't talk back to
them or make decisions for customers, that if the
customer wanted him to pick cylinders off the ground that
it was his job and not the customers "
Owen then testified that Fratus did not recommend
Townsend's discharge thus contradicting Woodmansee's
testimony which implied that Fratus had so recommended.
Returning again to the history of complaints against
Townsend, Owen testified that Mitch on several occasions
had recommended Townsend's discharge. The first time
was about 1-1/2 years ago when Mitch indicated to him
that customers were complaining of Townsend's attitude
and to get him off the truck at once 19 About 6 months
later , Owen's account went on, Mitch again complained
and Owen asked Mitch "at that time specifically what the
problems were, was it the same as they were before," and
Mitch said, "yes", that Mitch had started talking about
short delivery of cylinders to customers on the hill and
also to the Newhall store." At that time, Owen testified,
he did not get around to telling Mitch whether he was
is not conducive to credibility
"I note Woodmansee made no mention of this in his testimony
"Woodmansee testified that this statement was made at the meeting
between Owen, Mitch and himself Owen , here, testifies that Mitch made
the statement when he "called "
"Townsend testified that the incident occurred about 1-1 / 2 years ago
"Here, Owen , without describing the incident , states what he told
Townsend The particular incident , however, is later elaborated upon by
other testimony Mitch at one time placed it as occurring as recently as
June
"This was the occasion upon which as recited above Owen told
Townsend the customer is always right
"Such testimony is so vague that no conclusions or inferences can be
drawn
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to let Townsend go. Owen then strangely testified as
follows
Q When was the next time Mr Mitch made that
recommendation to you.20
A Maybe a couple of times that he asked me how
soon I was going to do it. I don't recall that, but the
last time was when he was circulating the fact that he
was going to leave the company to the other
employees 21
Owen testified that no specific incident led to his
August decision to terminate Townsend but it was an
"accumulation of other things" and that he didn't let
Townsend go at that time because they were in the middle
of vacation.
Asked by Respondent's counsel if he recalled any
conversations with Townsend, Owen recalled that in July
or August he spoke to Townsend about a new call22 at a
hospital at Sylmar, that the Newhall store had called and
said that he "had come up there again short with
cylinders, and I checked and he was still taking 20 to 25
cylinders to a hospital and then going up to Newhall short
and I told Mr. Fratus before through my instructions that
when he had a heavy load for the hospital that we would
take it on a special run rather than put it on his truck "23
Owen testified he received complaints from Fratus
concerning Townsend on two or three occasions but that
none occurred after the incident when Owen told
Townsend he was to follow Fratus' directions 21
Owen also testified that the Newhall store complained
of a shortage in cylinders about the first of September and
that he told Clark at that time that he was going to let
Townsend go.25
On cross-examination of Owen the following
interchange occurred
Q (By Mr. Mendonsa) Mr. Owen, you testified that
you made your decision to terminate Townsend's
employment in August, is that correct? August, 1968?
A You mean as a definite time?
Q Well, did you make your decision to terminate
him at that time?
A. In my mind, yes
Q When in August was that9
A Possibly the middle of August.
Q Did anything in particular happen in August to
which you would attribute your decision9
A. Just an accumulation of things that had been
happening which I have discussed before
Q What were those things specifically?
"To discharge Townsend
"Here Owen testified that Mitch continually asked about Townsend's
discharge but then denied that he had any memory of such occasions
"It is my understanding that this meant a new customer
"The emphasis under "again " and "still" has been supplied to indicate
Owen ' s continual attempt to add greater significance to the testimonial
account which insinuates continued derelictions However, here, it is rather
significant that Owen testified that the instructions were given to Fratus
and as Fratus checked loads and directed the loading before the truck left,
Townsend could hardly be faulted Moreover, another inconsistency
appears in that Woodmansee complained about a special trip by the light
truck while Owen , here encouraged the employment of special trips
"I place this incident as occurring about 4 months before Townsend's
discharge
"Owen at this point ignores his previous testimony that at this time
Townsend was following Fratus ' orders Clark ' s testimony contradicts
Owen in that Clark testified Owen did not discuss Townsend ' s discharge
with him prior to Townsend ' s discharge and that he first learned of the
discharge after it occurred
A. His relationship with other employees regarding
the company
Q Were there specific instances of this relationship
you talked about?
A. Not really relationships if you want to use that
word Just the rumors coming back to me that he had
been talking about his position with the company and
that he was looking for another job and he was not
satisfied with the company.
Q How did the rumors come to you9
A Through the field salesmen and from the store in
Newhall.
Q You say rumors about his going to leave the
company When did this company - excuse me When
did this come to your attention9
A Just before he left, a couple of days before he left.
Q So this didn't really influence your decision in
August?
A That part of it, no
Q What other criteria did you use in August9
TRIAL EXAMINER' He is talking about August The
question was What led to your decision in August? I
want you to be specific about that. You said an
accumulation of things. Now, what were the things? I
want to know.
THE WITNESS The things that happened in these last
18 months
Q (By Mr. Mendonsa) What were they, specifically9
A Specifically, he was not loading his truck properly
for the Newhall store His discourtesy to customers and
his general attitude.
Q. What do you mean by general attitude?
A. His general attitude towards the company.
Q In what respect9
A. In his relationship with our customers
Q Then actually you are giving me only two
reasons, his not loading the truck properly and his
discourtesy to customers
A And not fulfilling his duties
Q What duties?
A His loading of the truck properly
Q They are in the record. These are the two reasons
that led to your decision in August9
A The complaints from the salesmen and from the
branch store, about the other customers and
confrontations he had had with the customers on that
route.
Q But the complaint still involved loading his truck
and discourtesy to customers9
A. Yes
TRIAL EXAMINER. Was there anything else you
wanted to know?
THE WITNESS. Well , the accident.26
I believe the foregoing excerpt from the transcript fully
demonstrates that Owen's entire testimony is circumspect
His vague, evasive and inconsistent testimony attempts to
substitute generalities innuendo, rumor, and conclusions
for facts His demeanor, my appraisal of his testimony
and my conclusions as to the true state of affairs, leads
me to reject Owen's testimony in crucial aspects. I do not
credit Owen's assertion that he had made his mind up on
August 15 to discharge Owen.
"The accident is discussed below
H. M. PARKER & SON
Harold Rex Mitch, a field representative employed by
Respondent, testified that his duties included calls on
customers and stores covering parts of Pacoima, San
Fernando, Sylmar, Newhall, Saugus, Castaic and
Antelope Valley, that Townsend serviced the area, that he
received complaints from customers because insufficient
cylinders were delivered to them; saying in this regard, "It
has happened on several occasions. It was worse during
the month of August and September 1968 " Mitch stated
that two of the complaints during August and September
were from Green Construction Company, complaining
that when Townsend arrived at its site he didn't have
enough cylinders to meet its needs; that one complaint
from Delaware B M. concerned delivery of insufficient
cylinders and another complaint from Delaware B M.
concerned Townsend's attitude Initially, Mitch fixed the
date of the latter complaint in July 1968 but then changed
it to early in 1968 and that the complaint came from Ted
Prescott, that he had a discussion with Owen in June 1968
regarding the termination of Townsend and then recalled
a similar conversation with Owen about 18 months before
Townsend was discharged Mitch then went on to testify
that in 1967 he just registered a complaint about
Townsend while in June 1968 he told Owen as a result of
Prescott's complaint that it was very necessary to change
drivers "to get Townsend away from our customers " On
the latter occasion, Owen told Mitch that he didn't want
to replace Townsend immediately because of summer
vacation. Mitch then went on to state that he had one
other discussion with Owen the day before Townsend was
discharged, that he thought Woodmansee was present;
that he complained to Owen concerning Townsend's
attitude and that Townsend had bragged to him that he
had in his possession an application for employment from
Abco, a competitor; that he knew he had shown it to
several other employees of the company both at
Respondent's San Fernando and Newhall stores and that
Mitch thought it was time to get rid of Townsend, that
Owen replied the steps necessary to terminate Townsend
would be taken. On cross-examination, Mitch stated that
he received a complaint from Delaware B. M. about 2
years ago that "our truck driver [Townsend] was
instructing their carpenter," then Mitch added, "but
actually I'd have to say in all honesty that it was the
misread happening by their job supervisor" The job
supervisor appears to have been Prescott. Mitch then went
on to testify that Prescott did not make the complaint to
him that it was Bill Quick, Delaware B M 's purchasing
agent, who told him about the incident; that Quick said
that Prescott had ordered Townsend to get the cylinders
off the job and not to bring back any more, that Quick
said that he had talked to Prescott about it and for Mitch
to leave it alone and it would take care of itself; that both
Quick and Mitch knew that Prescott was short tempered
and that Townsend in fact had also told Mitch about the
incident Z1
"This incident , by virtue of Mitch's own testimony , hardly measures up
as the subject of a complaint by Delaware B M Quick, apparently
Prescott ' s superior told Mitch, "just leave it alone and it would take care
of itself " Moreover , Mitch quoted Prescott as complaining to him with
the use of some profanity and then said that he learned of the incident
from Quick and Townsend Under these circumstances the whole incident,
so remote from the discharge seems to be completely irrelevant and tends
to demonstrate that Mitch was attempting to dredge up every incident that
might put Townsend in a bad light Even Mitch realized how unfair he was
in reciting this incident when he testified , "but actually I'd have to say in
all honesty that it was the misread happening by their supervisor"
545
On the occasion when Delaware B M failed to receive
enough cylinders, Mitch testified he checked back on the
load sheets for that day and that Townsend had taken out
40 cylinders of oxygen when he should have taken 60 The
load sheet was not introduced in evidence and Mitch
stated he did not know where it was Asked if there were
any other complaints from Delaware B. M , Mitch
replied, "nothing more than usual I would say " The Trial
Examiner then asked, "What does that mean9 Are you
insinuating that there were others that you don't want to
mention?" Mitch replied that he was not trying to
insinuate that but then went on to mention that some of
the Delaware B. M. welders complained in July or August
that Townsend had hollered at them because empty
cylinders were spread around the area rather than
gathered in one place for him to pick up On further
examination, Mitch admitted that he also would complain
if he had to pick up cylinders that were scattered around 28
Mitch concluded his testimony by reciting an incident"
which he thought a customer, Dixon-Arundel, was lost
because of Townsend I conclude from the testimony with
regard to this incident that Respondent lost the customer
because of failure to meet another competitor's bid and
that Townsend was blameless.
Mitch also testified that "over a period of time"
possibly a half dozen times, the manager of Respondent's
Newhall store complained that an insufficient number of
cylinders were delivered to him; that since Townsend's
discharge there have been no such complaints and that
"possibly" the Newhall store had increased its stock since
Townsend's discharge 70
As indicated above, I find Mitch a witness unworthy of
credit, not only did I receive an unfavorable impression by
his demeanor but the record demonstrates that Mitch was
purposefully vague, contradictory and prone to
exaggerate, and attempted to convey the impression that
on all occasions when customers or stores received
insufficient supplies the fault was attributable to
Townsend.
William L. Clark, manager of Respondent's Newhall
store, testified that he knew nothing about Townsend's
union activity prior to his discharge; that during the
period of 2 months, August and September, Townsend's
truck "was not loaded heavily enough when he got to his
last stops to leave sufficient cylinders to cover them," and
at time there was not any cylinders at all so in return I
had to call our main welding division and request more
cylinders, and I had to make a special trip to these
customers to supply them with cylinders", that four or
five of such complaints were received and reported to
Owen; that since Townsend's discharge no complaints
have been received; that he had no knowledge of any
changes in the route, that he overheard Townsend say to
other people in the store that, "he was not satisfied with
the pay scale and that he had too much, too many stops
to handle on the truck that he had, that at one time
Townsend did say that he was looking for another fob "
On cross-examination, Clark testified that at times he
did not receive the number of cylinders he required; that
"Here again Mitch absolves Townsend of any blame yet testifies to the
incident as constituting a "complaint "
"The approximate date of this incident was not given
"Other evidence shows that there were complaints concerning
Townsend 's successor and that the Newhall store did increase its inventory
Woodmansee testified that Mitch himself had lodged a complaint against
McDonald, Townsend 's replacement
"This conclusionary statement , in my view , is not supported by the
evidence
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on some of these occasions it was the store's fault as no
telephone call was made to place the correct order; that
during that summer there was a shortage of cylinders at
Respondent's because of a strike at Linde (a subsidiary of
Union Carbide) and that on one occasion he called Fratus
to make a special delivery to the store.
On further redirect examination, Clark stated:
Well, let me back up a little bit. Sometimes we
would have a large run on cylinders where we would
use a great deal more than we normally do, and of
course, then, he would be out.
Then when he got to my store he wouldn't have
enough to cover it, but it generally, as far as the
normal amount of cylinders that I usually took, he
generally had that amount on the truck.31
Fratus testified that he was notified of the union
meeting at Townsend's house on the morning of the
meeting , October 3 ; that he did not at any time inform
Owen of the meeting or discuss it with him or
Woodmansee ; that he had nothing to do with Townsend's
discharge ; that about 2 months prior to Townsend's
discharge," he had an argument with Townsend about not
loading enough cylinders on the truck and Owen
overhearing the argument told Townsend that he was to
follow Fratus ' instructions ; that he had several complaints
of Townsend 's failure to deliver a sufficient number of
cylinders to the Newhall store and that since Townsend's
discharge although there were more customers he had no
such complaints ; that Owen told him that he had told
Townsend that when there were 20-25 tanks to be
delivered to the hospital at Sylmar to leave them for the
smaller truck to make a special trip ; that Townsend,
however , did continue on occasion to take the tanks to the
hospital on his truck . On cross-examination , Fratus
testified that the Newhall store is now on the route runs
for Monday and Thursday; that it had been on the
Tuesday and Friday route run when Townsend had the
route.
Fratus further testified that he didn't receive any
complaints from customers and that the "complaints"
from Newhall consisted of requests for additional
cylinders to be sent out by the small truck, because
Townsend did not have enough to leave at the store
D. Analysis and Conclusions
Having found above that Owen and Mitch were
witnesses whose testimony cannot be relied upon in crucial
respects, it is necessary to scrutinize the reasons advanced
by Respondent for Townsend's discharge The notice of
termination36 reads as follows
Not loyal to company or fellow employees, making
uncomplimentary remarks about company to customers
Not completing tasks properly.
I find on the basis of the evidence summarized above
that Townsend's only "disloyalty" to Respondent
consisted of his union activity; that Townsend's
uncomplimentary remarks about Respondent consisted of
gripes about the burdensome route assigned to him and
his low rate of pay, that Townsend filled his job
adequately and conscientiously working many hours of
overtime without compensation, that any deficiencies on
"The foregoing testimony obviously supports my conclusion that
fluctuating demands rather than Townsend ' s derelictions caused the
shortages
"1 place the incident as 4 months before the discharge
'Resp Exh 4
the servicing of the route were hardly attributable to
Townsend any more than Fratus who had chief
responsibility for seeing that Townsend's truck was
properly loaded, that fluctuations in demand on the route
resulted in some shortages and was to be expected; that
Clark, manager of the Newhall store, was equally to
blame for the few times he did not receive sufficient
supplies because he failed to call and place his order.
I conclude that Owen learned about Townsend's union
activity from Fratus, and enlisted Mitch's assistance in a
contrived conference with Woodmansee to give color to
Owen's determination to rid Respondent of the Union's
chief protagonist I believe the events that precipitated the
conference between Owen, Mitch and Woodmansee on
October 7 commenced when Owen overheard Ronald
Edwards' casual remarks to Fratus in the washroom when
Edwards said, "I hear your going Union." From Edwards'
credited evidence it is clear that this was overheard by
Owen and took place on Friday, October 4, the day after
the union meeting at Townsend's home. Over the ensuing
weekend, I am convinced that Owen secured full details of
the union meeting from Fratus, and then made his
arrangements with Mitch.
I am persuaded that the proffered reasons for
Townsend's discharge were mere pretexts to disguise the
true reason, Townsend's leadership in the organizing
attempt In arriving at the foregoing conclusion I have
also considered (1) the timing of the discharge coming
immediately after the Union's organizational meeting at
Townsend's home; (2) the fact that the discharge was
made in the middle of a workweek and pay period; (3) the
belated advancement of Townsend's truck damage as one
of the reasons for the discharge Clearly this was an
afterthought designed to bolster the defense. It appears
that Townsend, early in September,96 while backing up
damaged Edward's truck. Apparently the damage was
slight and led Fratus to "bawl" out Townsend in his
customary lurid language which was replied in kind by
Townsend. To end the argument Townsend told Fratus,
"the hell with it; we have insurance." Owen testified that
without further investigation he accepted Fratus' report
that the accident arose from Townsend's negligence The
evidence, however, shows that Fratus did not see the
accident. Townsend said it was partly due to the fact the
clutch on his truck would not hold properly. Whether or
not Townsend was negligent, I find the incident trivial. In
view of Larry McDonald's and Joseph Weger's testimony
that they were involved in accidents without reprimand, it
seems clear that Respondent customarily did not regard
minor accidents as a cause for discharge; (4) Respondent's
loan of $400 to Townsend on September 24 is another
factor that leads me to conclude that Woodmansee who
participated in processing the loan application did not
know on September 24 that Townsend was scheduled to
be discharged. Surely, if this were true Woodmansee
would have engaged in some discussion with the loan
committee concerning the advisability of a loan in such an
amount to an employee about to be severed from his
employment From this serious discrepancy, Owen's vague
and discredited testimony with regard to making up his
mind to discharge Townsend on August 15, and other
testimony described above, I conclude that Owen made no
such determination until October 7 at which time Owen
knew of Townsend' s union activity.
"I have considerable doubt that such a conference even took place
Mitch thought Woodmansee was there while Woodmansee 's report differs
substantially from Mitch 's and Owen 's versions
"Contrary to Owen 's testimony that it may have occurred in August, the
H. M. PARKER & SON
The applicable legal principles are well established An
employer who discriminates among employees does not
violate Section 8(a)(3) unless the discrimination is based
upon union membership or other union connected
activities. Thus, an employer may discharge an employee
with impunity if the discharge is not motivated, at least in
part, by the employees' union activity."
I fully appreciate that the burden of proving an
improper motivation for discharge is upon General
Counsel. However, as the Ninth Circuit Court stated in a
recent decision. 78
Actual motive, a state of mind, being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book Nor is the trier of fact - here the trial
examiner - required to be any more naif than is a
judge If he finds that the stated motive for a discharge
is false, he certainly can infer that there is another
motive More than that, he can infer that the motive is
one that the employer desires to conceal - an unlawful
motive - at least where, as in this case, the
surrounding facts tend to reinforce that inference
[Emphasis supplied.]
Having the foregoing principles in mind and the
circumstances in this case, and particularly the complete
collapse of the stated reason for Townsend's discharge, I
regard it quite apparent that Townsend was discharged
because of his prominence in the Union and his union
activity
As I have found above that the alleged shortcomings of
Townsend were not the true reasons for his discharge but
a pretext to disguise the fact that Respondent had
determined to rid itself of an outstanding adherent and
proponent of the Union, I conclude that Respondent by
reason of Townsend's discharge violated Section 8(a)(3)
and (1) of the Act.
E. The Wage Increases
On October 9, the day following Townsend's discharge
of October 8, Owen called in various employees and
informed them that Townsend was discharged because he
was disloyal to the Company. At the same time he told
them that wage increases would be reflected in their next
pay check due on October 12. The evidence shows that
wage increases received on the next payday amounted to
43 cents per hour and followed a wage increase granted in
July of 15 cents per hour. There was credited evidence
that Owen at a meeting of employees called in June had
notified them of the July increase and that another wage
increase would be forthcoming in October although no
amount was specified.
The General Counsel contends that as the
representation petition filed by the Union was pending at
the time of the October wage increases, the announcement
coupled with the explanation for Townsend's discharge
incident must have occurred in September as Woodmansee did not become
manager until September I
"ACE Comb Company, 342 F 2d 841 (C A 8), see also Steel Industries,
Incorporated. 325 F 2d 173 (C A 7), where the Court said, " an
employer has the right to discharge an employee for good reason, bad
reason or no reason , absent discrimination "
"Shattuck Denn Mining Corporation, 362 F 2d 466 (C A 9)
547
constituted an inducement to the employees to withdraw
or refrain from support of the Union. The argument is
further made that the amount of the increase was designed
to bring them to union scale thus eliminating an incentive
for further union support
The timing of the wage increase, the amount and the
fact that all changes of employees' status show a date of
September 30, when it is clear that the signatures of all
supervisors could not have been procured on that date,
tend to raise serious questions as to the purpose of the
wage increase However, the clear evidence that a wage
increase in October was promised in June, leads me to
conclude that Respondent did not violate the Act in this
regard. Accordingly, I will recommend dismissal of this
aspect of the complaint.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Thomas Fratus is a supervisor within the meaning of
Section 2(11) of the Act
4 By the discharge of Thomas Townsend on October 8,
1968, Respondent violated Section 8(a)(3) and (1) of the
Act
5 Allegations found, herein, not to constitute violations
of the Act are hereby dismissed
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully
discriminated against Thomas Townsend by discharging
him and thereafter refused to reinstate him, I shall
recommend that Respondent offer Townsend immediate
and full reinstatement to his former position, or, if his
position is unavailable through change in Respondent's
operations, then to a substantially equivalent position,
without prejudice to his seniority rights and privileges, and
that Respondent make him whole for any loss of pay he
may have suffered by reason of Respondent's
discrimination against him, by payment to him of a sum
of money equal to that he would have secured as wages
from the date of his discriminatory discharge until the day
Respondent reinstates him, less any net earnings in the
interim period. Backpay is to be computed on a quarterly
basis in the manner established by the Board in F W
Woolworth Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co , 138
NLRB 716.
As the unfair labor practices committed by Respondent
are of a character that strike at the roots of employees'
rights safeguarded by the Act, it will be recommended
that Respondent cease and desist from infringing in any
manner upon the rights guaranteed them in Section 7 of
the Act
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case, I
recommend that H. M. Parker & Son, its officers, agents,
successors, and assigns, shall
I Cease and desist from.
(a) Discouraging membership in Teamsters Automotive
Workers, Local 495, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization by
discharging or in any other manner unlawfully
discriminating against any of its employees in regard to
hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor
Relations Act, as amended
2. Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Offer to reinstate Thomas B Townsend to his
former or substantially equivalent position without
prejudice to his seniority or other rights or privileges, and
to make him whole in the manner described in "The
Remedy" section of this Decision for any loss of earnings
suffered by him by reason of the discrimination against
him
(b) Notify the above named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Decision.
(d) Post at its place of business in North Hollywood,
California, copies of the attached notice marked
"Appendix."" Copies of said notice on forms provided by
the Regional Director for Region 31, shall, after being
duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words"the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order "
..In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 31 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith °0
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommended order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that-
WE WILL NOT discharge you or refuse to reinstate
you because you join Teamsters Automotive Workers,
Local 495, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other union
WE WILL NOT in any other way interfere with,
restrain or coerce you in the exercise of your rights to
organize, to form, join, or assist a labor organization;
to bargain collectively through a bargaining agent
chosen by you, to engage in other group activities for
the purpose of collective bargaining or other mutual aid
or protection; or to refrain from any such activities
(except to the extent that the right to refrain may be
limited by the lawful enforcement of a lawful
union-security clause requirement).
WE WILL immediately offer to reinstate Thomas B.
Townsend to his former or substantially equivalent job
without any change in the seniority or other privileges
he enjoyed before we discharged him and we will pay to
him any money he lost as a result of our discrimination
against him with interest at 6 percent.
WE WILL notify Thomas B. Townsend if presently
serving in the Armed Forces of the United States, of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
H. M. PARKER & SON
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 688-5850.