Hap Jones Distributing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1968

172 N.L.R.B. 1402 (N.L.R.B. 1968)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hap Jones Distributing Co., Inc. and Peter J.
Gutierrez and Neil Kohut. Cases 20-CA-4652
and 20-CA-4762
July 31, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On May 9, 1968, Trial Examiner Louis S. Pen-
field issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent and General Counsel filed
exceptions ' to the Trial Examiner 's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings ,2 conclusions , and recommenda-
tions of the Trial Examiner, as modified herein.3
2. Amend the last sentence of relettered para-
graph 1(d) to read "as authorized in Section
8(a)(3) of the Act."
3. Amend the Appendix by adding the following
as leading paragraphs:
"WE WILL NOT question you in any way
about the Union."
"WE WILL NOT threaten to discharge any em-
ployee for pursuing lawful union activities, or
promise or grant any benefits for refraining
from such activities."
4. Delete the words "We have already offered
reinstatement and made whole Peter J. Gutierrez
and Gus Mayo, and" from the second full para-
graph of the Appendix.
I Respondent excepts only to the Trial Examiner' s findings that the
discharges of Kohut and Caldow violate Section 8(a)( 3) of the Act
' In the fourth sentence of the second paragraph of "The Remedy" it is
clear that the name Mayo has been inadvertently substituted for Caldow
3 We find merit in the General Counsel's exceptions and have amended
the Order and notice to reflect the specific violations of Section 8(a)(I)
found by the Trial Examiner
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOUIS S. PENFIELD, Trial Examiner: This
proceeding was heard before me in San Francisco,
California , on February 8, 9, and 13, 1968, upon a
consolidated complaint of the General Counsel and
answer of Hap Jones Distributing Co., Inc., herein
called Respondent.'
Upon the entire record, including consideration
of briefs filed by the General Counsel and Respon-
dent , and upon my observation of the witnesses, I
hereby make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent , Hap Jones Distributing
Co., Inc., San Francisco, 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 paragraphs 1(a) and (b),
the present paragraphs 1(a) and ( b) being relet-
tered as paragraphs 1(c) and (d):
"(a) Questioning employees in any way about the
union."
"(b) Threatening to discharge any employee for
pursuing lawful union activities , or promising or
granting benefits for refraining from such activi-
ties."
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Hap Jones Distributing Co., Inc., is a California
corporation with an office and place of business
located in San Francisco, California, where it is en-
gaged in the wholesale sale of motorcycle parts and
accessories. During the past year Respondent in the
course and conduct of such business operations
purchased and received supplies valued in excess of
$50,000 shipped directly to it from points outside
the State of California. During the same period
Respondent sold goods valued in excess of $50,000
which were shipped directly to customers located
outside the State of California. I find that at all
times material herein Respondent was an employer
' The complaint in 20-CA-4652 issued on November 6, 1967, and is
based upon a charge filed with the National Labor Relations Board , herein
called the Board , on August 22, 1967 The complaint in 20-CA-4762 and
the order consolidating cases were issued on December 22, 1967, and the
complaint is based upon a charge filed with the Board on November 20,
1967 The complaint , the order consolidating cases , and the charges were
duly served upon Respondent
172 NLRB No. 151
HAP JONES DISTRIBUTING CO., INC.
engaged in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automotive Warehousemen Local 241, Interna-
tional 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
The two complaints, which were consolidated for
purposes of hearing, allege the discriminatory
discharges of four named individuals, and unlawful
threats, interrogations, and promises of benefit.
Respondent denies the unlawful discriminatory
character of the discharges, or that it engaged in
any other unlawful conduct.
Prior to the opening of the hearing General
Counsel and Respondent entered into a partial set-
tlement with respect to some of the allegations of
the consolidated complaint. Pursuant to such agree-
ment Respondent undertook to offer reinstatement
to Peter J. Gutierrez and Gus D. Mayo, two of the
alleged discriminatees, and to make each whole for
any losses he might have incurred. However, the
parties to the settlement expressly agreed that the
General Counsel would be permitted to introduce
evidence concerning matters covered by the agree-
ment "for the purpose of establishing the
background and/or the context of conduct engaged
in by the employer which is relevant to all matters
not covered by this partial settlement .. . ." In-
asmuch as the four alleged discriminatory
discharges are to some degree interrelated,
evidence was received as to matters covered by the
partial settlement and findings will be made with re-
gard thereto. Such findings, however, will be made
solely tor their relevance to the remaining issues,
and will not result in a recommended remedy as to
matters covered by the partial settlement.
Respondent owns and operates a warehouse in
San Francisco where it stocks and sells motorcycle
parts and accessories. Respondent is owned by its
president, Lauren A. Jones, more commonly known
as Hap. Jones. Mrs. Kay Roberts is an officer of the
corporation. Frank Leal acts as general manager
and assumes full charge of the operations in the
absence of Mr. Jones.2 Robert J. Greenlaw and
Walter Bunton are each warehouse supervisors. It is
established that Jones, Roberts, Leal, Greenlaw,
and Bunton are each supervisors within the mean-
ing of the Act.'
2 Throughout the first volume of the transcript , and possibly elsewhere,
references are made with some frequency to a "Mr Leo "It is clear that
this is an inadvertent error of the reporter, and that in all instances where
the name "Leo " appears, the reference is intended to be to Frank Leal It is
1403
For more than 20 years Respondent has had con-
tracts with the Union. It is conceded that at the
time of the incidents giving rise to this proceeding,
Respondent was bound by a contract with the
Union which had been executed on March 4, 1966,
and was to remain in effect until June 1, 1968. This
was a form contract designed to cover the opera-
tions of a large number of employers engaged in the
automotive parts industry in San Francisco. Among
other things it contained detailed provisions as to'
wages for a variety of classifications not existing at
Respondent's operation. In addition the contract
povided for a union shop, that copies of the agree-
ment should be posted for employee inspection,
and that in all cases the Employer should supply the
Union with the names of persons that it hired. In
spite of the long established collective-bargaining;
relationship and these express terms, it does not ap-'
pear that Respondent had ever posted a copy of the
contract on its premises, or that it had ever sent the
Union the names of its newly employed employees
including those of the alleged discriminatees. There
is evidence that throughout the years the Union had
refrained from demanding strict adherence by
Respondent to all contract terms. Hap Jones
,testified that although the written terms of the
agreement did not reflect it, in the course of past
negotiations it had been mutually understood that
the terms of the agreements signed had been
tailored primarily to the automotive industry rather
than to a business like Respondent's. Thus, Jones
claims there was a tacit understanding that the
Union would overlook some aspects of strict en-
forcement. The precise scope of this was not
developed, however, and it does not appear that it
included such matters as not posting the agreement,
not enforcing union-security provisions, or paying
wage rates not set forth in the contract. On the con-
trary the Union denies that it ever waived any con-
tract rights in those areas. It is equally clear, how-
ever, that the Union was lax in maintaining close
scrutiny as to Respondent's compliance with any
contract terms.
All of the discharges took place in August 1967.'
Neil Kohut was discharged on August 3. Peter
Gutierrez, Gus Mayo, and Margaret Caldow were
all discharged on August 17. Margaret Caldow had
been employed since May 17, 1966, but the other
three had worked for Respondent only since early
May 1967, with Kohut and Gutierrez having come
to work on May 2, and Mayo having begun work on
May 16. We will first consider the sequence of
events leading up to the discharges, then the cir-
cumstances of Kohut's discharge, and finally the
events vi hi h precede an-& resuItecFm the
discharges of Caldow, Gutierrez, and Mayo on Au-
gust 17.
hereby ordered that wherever the name "Leo " appears in the transcript it
shall be corrected to read "Leal "
3 According to Robert Greenlaw he became a supervisor of the upstairs
warehouse on July 25, 1967
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Hiring of Gutierrez , Kohut, and Mayo and
the Sequence of Events Preceding the Discharges
Peter Gutierrez and Neil Kohut had come to San
Francisco from New York where they had been
working for an employer who regularly did business
with Respondent . They applied for work with
Respondent and were hired as warehousemen in
May by Hap Jones himself . At the time they neither
had the knowledge , nor did Jones make known to
them , that there was a union contract in existence,
nor the wage scales for warehousemen it provided.
Jones now indicates that at the time he hired the
two of them he really had need for only one addi-
tional warehouseman . Nevertheless he hired them
both at a salary of $90 per week. The union con-
tract indicates the minimum scales for
warehousemen to be at least $30 per week higher
than this . In spite of Jones' suggestion that Respon-
dent 's employment needs were limited , in addition
to Kohut and Gutierrez Respondent hired Gus
Mayo on May 16, also as a warehouseman and also
at the $ 90 per week scale .As in the cases of Gutier-
rez and Kohut , Mayo was not advised of the union
contract. About 2 weeks after their employment
Gutierrez and Kohut each had their weekly salaries
raised to $100 per week. It is not shown whether a
similar raise was accorded Mayo either at this time
or at any time later.
Some 3 weeks after his initial employment,
Gutierrez, on his own, learned of the union con-
tract and of its union -security and wage scale provi-
sions . He relayed this information to Kohut, Mayo,
and others . Approximately 4 weeks after his initial
employment Gutierrez states that Hap Jones ap-
proached him and remarked that he had heard that
Gutierrez wished to join the Union. Gutierrez
replied that this was true , and then Jones led him
away from other employees and, according to
Gutierrez, proceeded to characterize the Union in
unfavorable terms , even using a string of obsceni-
ties to describe it, and remarking further that
Respondent was "on the move and going" and that
if the Union were held off he would "step [Gutier-
rez] up gradually." Jones does not deny having
discussed the Union with Gutierrez at approximate-
ly this time . He denies that he characterized the
Union in the manner that Gutierrez attributes to
him. He admits, however, that he told Gutierrez at
some point that he was being considered for a
management position , and that he had suggested to
Gutierrez that he " take it easy for awhile." Jones
asserts that in making such remark he was not
referring to union activities but was only speaking
of Gutierrez' efforts to obtain more money im-
mediately.
A few days later there was a conversation
between Jones and both Kohut and Gutierrez. They
state that the question of union scale was raised at
this time, and that again Jones made uncomplimen-
tary remarks about the Union stating that he felt it
was "milking him dry with the extra benefits he had
to pay." They state that Jones then went on to say
"that he would take care of us and that it was not
necessary to worry about the Union." Within a
week thereafter Kohut and Gutierrez both had their
weekly pay increased from $100 to $105, a figure
which continued until their terminations under cir-
cumstances to be described below.
During June and July the Union, particularly the
contract wage scale and the possibility that em-
ployees not receiving it might file a claim with the
State Labor Commissioner to gain back wages com-
mensurate with it, was the subject of frequent
discussion among Kohut , Gutierrez , Mayo, and
others . Kohut and Gutierrez visited the union office
in mid -July and were given copies of the union con-
tract . Some time later Kohut called and made ar-
rangements for a union business agent to come to
the plant.
Near the end of July Gus Mayo approached Su-
pervisor Robert Greenlaw and asked him what
would happen if he joined the Union. According to
Mayo Greenlaw replied "The Company would
probably lay [him] off." Mayo then asked what
would happen if he did not join, to which Greenlaw
replied that the Union would probably require that
he be laid off. Mayo then commented that "It is
kind of a damned if I do and damned if I don't
situation isn't it." To this Greenlaw replied "Yes it
is." Greenlaw does not specifically deny making re-
marks of this nature.
On July 2, Hap Jones left for a trip around the
world from which he did not return until the first
week in September . During his absence Respon-
dent 's operation was under the general direction of
Frank Leal.
In response to the inquiries of Gutierrez and
Kohut , James Kincaid , union business representa-
tive, visited the plant on July 31 to check on the
presence of nonunion persons working there, and
to check out the possibility of contract violations.
On this day Kincaid had both Gutierrez and Mayo
sign application blanks for union membership, and
he left a blank to be signed by Neil Kohut who was
not present when Kincaid first came to the plant.
Kincaid returned to the plant on the following day,
and talked to Frank Leal about contract violations
including the failure of Respondent to pay contract
rates. It stands undisputed that it was made known
to Leal at this time that Gutierrez, Mayo, and
Kohut had each signed application blanks . Kincaid
states that Leal told him that he would make some
effort to straighten things out, but that Jones was
away and that if Respondent was to be required to
pay the contract wages Leal would be disposed to
lay off the new employees and obtain more ex-
perienced help. When Kincaid mentioned Kohut's
signing an application card, Leal told him this was
useless since he intended to lay off Kohut on August
4. Leal does not deny having this conversation with
Kincaid about union matters , although he is vague
as to specific subjects covered. Leal admits that he
told Kincaid that he intended to lay off Kohut.
HAP JONES DISTRIBUTING CO., INC. 1405
B. The Discharge of Neil Kohut
According to Gutierrez , following Kincaid 's visit
to the plant Gutiererez spoke to Frank Leal in his
office asking him if Kincaid had demanded that
Gutierrez be paid the union scale . When Leal
replied in the affirmative , Gutierrez asked if this
meant that he would be laid off to which Leal said,
"We will see." This conversation began in Leal's
office and , according to Gutierrez , it continued as
Gutierrez walked with Leal from there to the upper
warehouse . Upon reaching the upper warehouse
Leal asked Gutierrez , "Was it Neil who called up
the Union?" Gutierrez states that when he said,
"no," Leal had replied , "If I find out who called the
Union I will lay him off immediately ." 1 hese re-
marks in the upper warehouse were specifically ad-
dressed to Gutierrez , but Kohut and Mayo testified
that they were present and overheard them, and
they corroborate Gutierrez' version in all particu-
lars. Leal admits talking to Gutierrez at this time in
his office , but he does not recall walking back to
the warehouse with Gutierrez nor the remarks
Gutierrez attributes to him when reaching there.
On the following day Kohut was notified by Su-
pervisor Greenlaw that he was to be laid off on Au-
gust 3. Kohut states that on the following morning
Supervisor Greenlaw told him "That we had
created quite a stir with the Union " and that three
people were to be laid off effective August 3 and
that he , Kohut , was to be one of them . Greenlaw
does not deny making this statement.
On August 3 Kohut was terminated . He spoke to
Frank Leal at the time who told him "That business
was slow and that [his ] work was not up to stan-
dard ." Kohut asked when this decision had been
made, and Leal told him that it had been made a
week before . Following this conversation with Leal,
Kohut testified that he spoke with Greenlaw who
told him that he had not heard of the decision to
lay off Kohut until August 1.
Respondent defends the discharge by asserting
that Kohut had not demonstrated himself to be a
satisfactory worker, that business was sufficiently
slow that there was no further need for his services,
and that the decision to terminate him had been
made before Respondent had knowledge of his
union activities.
Commencing in June, Kohut had worked in the
shipping department with another employee named
Robert La Cunza . When La Cunza had gone on a
2-week vacation commencing in the last week in
June, Kohut had taken over his work . La Cunza
testified that when he returned from vacation he
noted that Kohut had not kept up with work
requirements . La Cunza states that he mentioned to
Frank Leal about 2 weeks before Kohut 's discharge
that Kohut "wasn 't working out" and "just got in
[his] way ." La Cunza does not state , however, that
at this time or any other time Leal had mentioned
the possibility of terminating Kohut for any reason.
Leal places his conversation with La Cunza about
July 26 or 27, only a week before the discharge,
and states that what he learned from La Cunza cou-
pled with his observation that things were slow
caused him then and there to make the decision to
terminate Kohut in the near future . Supervisors
Greenlaw and Bunton testified that 3 weeks or
more prior to the actual termination Leal had re-
marked to them that Kohut was not working out.
Immediately following his termination , Kohut,
acting through the Union , filed a claim with the
California State Labor Commissioner for wages
which he should have received if he had been paid
the union contract rates . At a subsequent time this
resulted in Kohut 's receiving payment of approxi-
mately $ 300 as the difference between what
Respondent had paid him and what he was entitled
to receive at the contract rate.
C. The Discharges of Gutierrez, Mayo , and Caldow
on August 17
Gutierrez testified that within a day or two fol-
lowing the termination of Kohut, he was called to
Frank Leal 's office, and in the presence of Secreta-
ry-Treasurer Roberts was asked by Leal if he "was
unhappy there ." Leal went on to say that he had
heard that Gutierrez was "stirring up a lot of trou-
ble with the employees ." Gutierrez replied that he
was doing no more than informing employees of
their rights under the contract . Mrs. Roberts then
asked Gutierrez if he "was a union organizer," to
which Gutierrez replied "No" but that he had
become unhappy with Respondent's violations of its
union contract , enumerating such matters as
Respondent 's failure to post copies of the contract,
failure to notify the Union of the employment of
new employees , and failure to pay the contract
wage rates . Leal recalls talking with Gutierrez at
this time about the Union , and he does not specifi-
cally deny the remarks which Gutierrez attributes
to him . Mrs. Roberts was not called upon to testify.
As noted above , immediately following his ter-
mination Kohut , with the assistance of the Union,
filed a claim with the State Labor Commissioner for
back wages due him because of Respondent's
failure to pay the contract rates . The possibility that
each employee affected might file a similar claim
had been the subject of frequent discussion by
Gutierrez and others around the plant both before
and after Kohut's termination and it stands un-
disputed that Greenlaw was apprised by Gutierrez,
and possibly also by Mayo , that each intended to
file similar claims for himself. On August 16,
Gutierrez and Mayo visited the Union and signed
the papers necessary to bring this about . There is
some dispute as to whether or not Respondent was
apprised on this same day that these steps actually
had been taken, but this would appear immaterial
inasmuch as there can be no doubt that Respondent
knew that Kohut had made a claim, and that prior
to August 17 it had been apprised that Gutierrez
and Mayo also intended to do so.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 17, about noon , Robert Greenlaw told
Gutierrez and Mayo that this was their last day and
handed them their checks. Gutierrez asked Green-
law the reason for their terminations , and Greenlaw
admittedly replied that they were being fired for
"dissention ." Gutierrez immediately went to Frank
Leal's office to query him as to the reason for the
discharges . Leal affirmed that they were being fired
for "dissension ." Leal states that he told Gutierrez
that they had been discharged because they had
been harassing Greenlaw " talking and causing all
kinds of dissension."
Following the discharges of Mayo and Gutierrez,
Greenlaw telephoned Union Representative Kin-
caid . Kincaid testified , and Greenlaw does not
dispute him, that in the course of this telephone
conversation Greenlaw told him that "he had just
gotten rid of" Gutierrez and Mayo because "We
are sick of this union crap ... and the fellows aren't
performing their duties properly, and it is causing
too much dissension in the company ." Kincaid
states that Greenlaw then asked him if he would
send people from the union to be interviewed for
the jobs. Kincaid acknowledges that this was the
first time that anyone connected with Respondent
had called the Union to ask for employees.
Respondent defends the discharges by claiming
that both Mayo and Gutierrez , although potentially
good workers , had engaged in breaches of
discipline during the last 2 weeks of their employ,
principally by talking too much thus bringing about
errors in the packing , and that they had not
responded to admonitions from Supervisor Green-
law. Neither Mayo nor Gutierrez disputes that on
occasions he had been admonished by Greenlaw
concerning his talking . While errors may have been
made in the packing, it is not established that these
were necessarily attributable to either Mayo or
Gutierrez. Some of their alleged derelictions had
been observed by both Leal and Supervisor Bunton.
According to Greenlaw and Leal on the morning of
August 17, when Greenlaw had complained to Leal
that he "couldn 't work with them anymore, that
they were constantly harassing him," Leal had told
Greenlaw to discharge both of them.
Margaret Caldow had worked for Respondent
since May 17, 1966, approximately a year longer
than the other three who were discharged . She had,
worked in a warehouse office . From the outset, her
work had been to make up and file invoices and to
take telephone orders for motorcycle parts. When
first employed, Supervisor Walter Bunton had also
worked in the office and he had spent considerable
time also taking telephone orders. During the latter
part of her employment , Mrs. Caldow shared the
telephone order aspects of her work with an em-
ployee named Joe Abruzzo. Mrs. Caldow was em-
ployed at the rate of $92.50 per week and was
being paid $95 per week at the time she was ter-
minated.
Mrs. Caldow was never informed by Respondent
of the union contract, and had never considered-
that her work might make her eligible for union
contract scale . Some time during the month of
June , Gutierrez and Mayo talked with her about it,
pointing out that if she were to get the union scale
she would be receiving $40 a week or more than
she was being paid . Joe Abruzzo , who also was tak-
ing telephone orders , was then a member of the
Union . Athough it is not clearly shown in the
record, presumably Abruzzo was being paid at the
contract wage scale.
On August 16, 1967 , Union Representative Kin-
caid visited the plant and during the course of his
visit he talked at considerable length with Mrs. Cal-
dow concerning the nature of her work . Kincaid
concluded, and told Caldow , that it brought her
within the scope of the union contract , and that she
was entitled to contract wage rates and that she
must join the Union . She asked for an opportunity
to think this over . Robert Greenlaw admittedly ob-
served Caldow and Kincaid conversing , although he
did not overhear the subject matter of their conver-
sation . He concedes that he undoubtedly reported
this observation to both Bunton and Leal.
During the early part of the afternoon of August
17, Mrs . Caldow overheard Greenlaw using the
telephone in her office when he told Kincaid about
the terminations of Mayo and Gutierrez as related
above . About 4 p .m. during the same afternoon
Frank Leal called Mrs. Caldow to his office and
told her that "he had not been happy with [her]
work , and in view of what was happening ... that
was it." She was given her final check immediately.
Following her departure Mrs. Caldow went to the
Union and sought its help in filing a claim for back
wages with the State Labor Commissioner.
Respondent claims that the discharge of Caldow
resulted from Hap Jones ' long held dissatisfaction
with her work, and that the decision to terminate
her had been made by Jones in May prior to his de-
parture on his extended vacation . Jones testified
that initially he had hired Caldow primarily for the
purpose of typing and filing invoices , with such fil-
ing being a major and important part of her work.
Admittedly , however, from the outset she had been
called upon to do considerable additional work tak-
ing telephone orders . Jones describes the summer
months at Respondent 's establishment as invariably
the most busy time of the year . He noted in the
summer of 1966 that Caldow fell far behind in her
filing , and he spoke to her about it. He states that
Caldow had told him that she needed extra help
because of the volume of work but none was ever
provided for her . Several times Jones says he
reiterated to Caldow that it was extremely impor-
tant that the filing be kept up to date. He noted that
following such conversations there was an improve-
ment in her work. Jones admits that the last of his
admonitions on this score occurred in the late fall
of 1966, and that thereafter on no further occasion
did he speak to Mrs. Caldow about the quality of
her work . In May 1967 Jones states he concluded
that Mrs. Caldow was spending too much time talk-
HAP JONES DISTRIBUTING CO., INC.
ing on the telephone on personal matters and walk-
ing around the plant during coffeebreaks and that
he decided that she should be terminated. Jones
does not claim to have had much firsthand
knowledge as to the subject matter of her telephone
conversations since admittedly he spent little time
in the office where she worked. Jones is somewhat
vague as to the time she was allegedly wasting on
coffeebreaks. He acknowledges that he made no
direct complaint to her about either the telephone
or coffee derelictions, or told any of her supervisors
to warn her that their continuance might result in
her termination. Jones states only that he had been
"hopeful that she would get going and it didn't
seem like it was ever going to take place . . ." and
he "just wanted to terminate her." Jones and Leal
agree that sometime in May Jones told Leal that he
wanted Caldow discharged and Leal suggested that
the termination be postponed until the vacation
period was over. Jones agreed to this, with the
precise date of the termination left to the discretion
of Leal. Leal states that he retained Caldow until
the end of the vacation period. On August 17 Leal
concluded that the work had slowed up sufficiently
so that he might then terminate her. He is not
specific as to the vacation situation or as to the ex-
tent work had dropped off at this time. Since her
departure, the telephone order work has been car-
ried on by Abruzzo without the hiring of anyone
else to assist.
D. Discussion of the Issues and Conclusions
The central issue relates to the lawful or unlawful
character of Respondent's motivation in discharg-
ing the four named individuals. I see the foregoing
events as falling into a pattern suggesting an effort
by Respondent to achieve an unlawful objective. I
am convinced upon the record as a whole that the
discharges were effected because Respondent
wished to rid itself of employees whose efforts to
activate a dormant relationship between Respon-
dent and the Union faced Respondent with the
prospect of paying them higher union contract rates
if they were to remain in its employ.
The circumstances of the discharges must be
considered against a background of Respondent's
long standing relationship with the Union . Respon-
dent's 20-year contractual association with the
Union had been amicable but casual. I have no
doubt of the tacit understanding between Respon-
dent and the Union that despite explicit language in
the contract Respondent was to be accorded a
degree of leniency by the Union when it came to
matters of contract enforcement. Moreover, it ap-
pears that such leniency had been practiced for
years. Its manifestation, however, appears to have
encompassed no more than the Union's looking the
other way when it came to giving close scrutiny to
Respondent's practices in observing all contract
terms. For a long time Jones had not been meeting
his obligation to post the contract, to inform the
1407
Union of new hires, and, in some instances, to pay
employees the union contract scale. Absent being
confronted with specific complaints, however, the
Union apparently paid scant attention to such con-
tract violations, and seldom bothered Respondent
with regard to them.
The employment of Gutierrez and Kohut, and
slightly later that of Mayo, at less than contract
scale, and their subsequent action in calling the
Union's attention to existing contract violations
stirred the relationship from its comfortable
dormancy, however. Each of these employees was a
bright and ambitious young man who had accepted
work with Respondent for a low weekly wage rate
in complete ignorance that a contract providing for
a higher rate existed. Upon their learning that the
contract scale called for a starting rate of some $40
per week more than they were getting, they joined
in a common effort to obtain the rates to which
they felt they were entitled.
The initial unexplained raise from $90 to $100
given to Gutierrez and Kohut suggests no more
than that Jones was satisfied with the work of these
new employees. However, when it became apparent
that Gutierrez and Kohut had learned of the union
contract and might be seeking to benefit by ad-
herence to its terms, we see Jones responding by
expressing his opposition to the Union, and by sug-
gesting to the employees that better things might
come their way if they would forego use of the
.union route. Even if we assume that Jones did not,
as he says, go to the extremes that Gutierrez and
Kohut attribute to him in unfavorably characteriz-
ing the Union, Jones himself does not deny that he
did discuss the Union with Gutierrez, and that he
did suggest to Gutierrez that he was being con-
sidered for a management position and had best
"take it easy." I credit the mutually corroborative
testimony of Gutierrez and Kohut to the effect that
Jones did respond to knowledge of their interest in
the Union by, to some degree, characterizing it un-
favorably, and by signifying to them that their best
interests would be served if they did not align them-
selves with it. Moreover, almost immediately fol-
lowing this confrontation, Gutierrez and Kohut
each received a $5 weekly pay increase. The pur-
pose of this raise has not been explained, and from
its timing it would reasonably appear to have been
designed to cool off their pursuit of increased wage
rates through the Union, and to constitute tangible
evidence of Jones' assertion that by leaving the fu-
ture in his hands, he "would take care of [them]"
and that it was "not necessary to worry about the
Union." Accordingly I find that Respondent, by in-
terrogation of Gutierrez and Kohut about the
Union, by promising them benefits if they would
avoid using it, and by later granting them a pay in-
crease, interfered with the rights guaranteed em-
ployees by Section 7 of the Act, and thereby vio-
lated Section 8(a)(1) of the Act.
We have also seen that late in July, Greenlaw, in
response to questions from Mayo, told Mayo that if
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he joined the Union it was likely that Respondent
would lay him off. It stands undisputed that Green-
law was at the time a supervisor and was aware of
the interest of Mayo , as well as the others , in seek-
ing to obtain the contract wage rates . Under the
circumstances his comments constitute a clear
threat of discharge if such lawful union activities
were pursued . I find that thereby Respondent vio-
lated Section 8(a)(1) of the Act.
When Jones departed on an extended vacation
on July 2 , leaving the business in full charge of
Frank Leal , he does not appear to have given Leal
any specific instructions as to the future of Gutier-
rez, Kohut, or Mayo. I have no doubt, however,
that before Jones left, he discussed with Leal their
expressions of interest in the Union, and expressed
to Leal that he was opposed to paying them at the
substantially higher contract scale.
Against this background of unlawful interroga-
tion , promises of benefit , and threats of discharge,
we find Kincaid making a somewhat overdue visit
to the premises on July 31 and August 1, following
a request from Kohut that he do so. Not only did
Kincaid have Gutierrez , Kohut , and Mayo sign
union application blanks at this time, but this fact
was admittedly made known to Leal. In addition
Kincaid and Leal discussed the contract wage scale
problem insofar as it affected each of these em-
ployees. I credit Kincaid 's version of his meeting
with Leal as against Leal's rather vague account
thereof and find that, as Kincaid states, they did
discuss contract violations with regard to rates of
pay, and that Leal expressed the view that, if
Respondent was to pay the kind of wages the con-
tract required, it would be best to lay off these em-
ployees and obtain more experienced help. Leal
acknowledges that during the course of his meeting
with Kincaid he told him that he had decided to lay
off Kohut.
Immediately following Kincaid 's visit , Kohut was
notified by Greenlaw that he was to be laid off on
August 4 . Greenlaw does not deny that he accom-
panied this notification by telling Kohut that "he
had created quite a stir with the Union." I credit
the testimony of Gutierrez, fully corroborated as it
was by that of Mayo and Kohut , that following Kin-
caid 's visit to the plant , Leal had expressed his be-
lief that it was Kohut who had called the Union and
that he had threatened to fire Kohut for having
done so . This testimony leads almost inescapably to
the conclusion that Kohut 's layoff was precipitated
because Leal identified Kohut as one of those
responsible for stirring up problems with the Union
relating to the payment of the much higher contract
wage rates.
Respondent 's asserted defenses of unsatisfacttory
work and a slack in business are not convincing.
While I do not necessarily discount the possibility
that Leal may have had reservations as to Kohut's
competence, these appear more as afterthoughts
than as the underlying reason for his termination.
There is no suggestion that in earlier discussions
with management representatives or employees
concerning Kohut 's ability, Leal had ever men-
tioned his possible termination therefor. Nor is
there a showing that work had slacked off at the
time Respondent actually did let him go. On the
contrary , Kohut was laid off at the height of what
Jones described as Respondent 's busiest period of
the year . Robert Greenlaw, who notified Kohut of
his layoff, was told about it concurrently with or
after Kincaid 's visit to the plant . Under the circum-
stances it is a fair inference that the layoff of Kohut
had not been given serious consideration until such
time as it was forcibly brought to Respondent's at-
tention at the time of the visit of Kincaid that
Kohut was one of those playing a significant role in
bringing Respondent 's contract violations to the at-
tention of the Union, thus confronting Respondent'
with the likelihood that it would be required to pay
him as well as others higher contract rates.
Whether or not Respondent regarded Kohut as a
marginal employee , the timing of his layoff, when
coupled with the credited statements of Leal and
Greenlaw set forth above, impels the conclusion
that Kohut 's identification with the Union and not
his incompetence or a slowdown in work was the
decisive factor in bringing about his termination at
this time, and I so find . Accordingly, I find that
Respondent was discriminatorily motivated in the
layoff of Neil Kohut on August 4, and thereby en-
gaged in conduct violative of Section 8(a)(3) of the
Act.
The termination of Kohut left Gutierrez and
Mayo as the remaining employees most closely as-
sociated with stirring up the Union . In contrast to
the vague denials of Leal, I credit the testimony of
Gutierrez that , shortly after Kohut 's termination, he
was called to Leal's office and, in the presence of
Mrs. Roberts , accused by Leal of stirring up trouble
among the employees . It stands undenied that at
the same time Mrs. Roberts accused Gutierrez of
being a union organizer . Concurrently , with his ter-
mination, Kohut filed a claim for back wages.
Gutierrez had made it clear to Greenlaw that he
and Mayo intended to do likewise , and on August
16, the day prior to their discharges , each one ac-
tually filed such a claim.' It was following all this
that Respondent discharged the two of them on Au-
gust 17, stating that they were creating "dissen-
sion ." Respondent contends the so -called "dissen-
sion " related to their talking too much on the job,
thus not doing their work properly and giving
problems to Greenlaw, their immediate supervisor.
It hardly appears, however , that the situation had
reached a point where any alleged misconduct on
their part had gotten out of Greenlaw 's control.
Considering all the surrounding circumstances, it is
a more reasonable inference that it was their con-
nection with efforts to obtain the contract wage
rates that constituted the real "dissension" for
' As a result of filing these claims, each was subsequently awarded the
sum of nearly $300 as back wages
HAP JONES DISTRIBUTING CO., INC.
which they were terminated . Even if these circum-
stances were to make such a conclusion less com
pelling than I regard it to be , Greenlaw 's undenied
statement to Kincaid made immediately following
the discharges of the two to the effect that Respon=
dent had "gotten rid of" them because it was "sick
of" the union business , makes virtually conclusive
the true meaning of the so -called "dissension" in
the eyes of Respondent . Discharges of employees
for efforts of this nature are of course discriminato-
ry within the meaning of Section 8(a)(3) of the
Act, and I so find.
The discharge of Margaret Caldow , however,
raises a somewhat different problem . She was not
only an employee of considerably longer standing,
but she was not directly indentified with the initial
efforts of the other three in bringing the Union ac-
tively into the picture . Nevertheless , she had been
observed by Greenlaw talking with Union
Representative Kincaid on the day before her
discharge , and she was suddenly discharged without
any warning on the following day shortly after the
discharges of Gutierrez and Mayo.
Respondent would have us believe that the un-
derlying reason for Caldow 's discharge was Jones'
dissatisfaction with her work , and that the decision
by Jones to terminate her had been made in May
1967 . It is represented that immediate execution of
such decision was delayed only because Leal per-
suaded Jones that it would be more convenient to
postpone the termination until after the vacation
season ended . The nature of Respondent 's asserted
dissatisfaction was Caldow 's work and the actual
timing of the discharge itself render the explanation
suspect . The problems Jones relates about delays in
invoice filing go back to the fall of 1966 and she
responded to Jones ' admonitions at that time by
showing improved work . Then there came a long
hiatus when presumably Caldow did satisfactory
work . Suddenly in May 1967, without further
discussion or warning of any sort , we find Jones
claiming Caldow to be such an unsatisfactory em-
ployee that she must be terminated . The decisive
factors, according to Jones , were Caldow 's overuse
of the telephone for personal calls and her practice
of taking extended coffeebreaks . Since part of Cal-
dow's job consisted of using the telephone to take
orders , and Jones admittedly spent a little time in
the office where she worked , the extent of Jones'
knowledge as to the personal character of the calls
she was making is open to question . While Jones
may have observed her taking extended cof-
feebreaks, it is curious that he never spoke to her
about this at any time or never directed his super-
visors to do so . Presumably , Leal was to defer her
termination until after the vacation period because
the workload at that time would make her services
more readily expendable . Other than a general and
self-serving statement from Leal, no evidence was
adduced to show that by August 17 the vacation
period was actually at an end, or that Respondent's
business had dropped to a point where Caldow's
1409
immediate termination seemed reasonable. On the
contrary , August would appear to be in the midst of
a normal vacation period, and, as noted above,
Jones himself testified that Respondent 's business
had a seasonal character , with July and August
being a peak period.
Under the circumstances it seems more than a
coincidence that Caldow was discharged on the
same day that Respondent terminated Gutierrez
and Mayo for their efforts to obtain union contract
wage rates . While Kincaid had not at this time de-
manded that Respondent also pay Caldow such
rates, she had been observed in conversation with
Kincaid, and Leal was well aware that Joe Abruzzo,
who like Caldow was taking telephone orders, was
a union member , and was being paid at the contract
rate . Thus Leal could reasonably assume that a de-
mand for Caldow to be paid the same rate might be
forthcoming. Leal, in notifying Caldow of her
discharge , coupled as reasons therefor unhappiness
with her work and "what was happening." What
had been "happening" was a reaction by Respon-
dent to efforts of employees to obtain union con-
tract rates which included unlawful interrogations,
promises of benefit, threats of discharge , and the
discriminatory discharge of the three employees
most closely identified with such efforts . Thus even
assuming a degree of dissatisfaction with Caldow's
work, I am not satisfied that this constituted the
real reason for her discharge at this time. It is a
more reasonable inference that Leal would not
have undertaken to terminate her at this peak
season time had he not identified her as one of
those to be affected by the efforts of the others to
obtain the contract wage rates, and that he effected
her termination to forestall being confronted with'
demands from the Union that she too be paid the
union wage scale . Accordingly , I find that Respon-
dent , by discharging Margaret Caldow on August
17, 1967 , discriminated against her because of her
identification with the group seeking to obtain
union contract wage rates , and thereby Respondent
engaged in a violation of Section 8(a)(3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , as set forth in sec-
tion III, above , occurring in connection with the
operations of Respondent discussed in section I,
above , have a close , intimate, and substantial rela-
tion to trade , traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)( I )
and (3 ) of the Act, I shall recommend that it cease
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the
Act.
I have found above that Respondent discrimina-
torily discharged Neil Kohut, Margaret Caldow,
Gus Mayo, and Peter J. Gutierrez. As noted, the
discrimination with regard to Gutierrez and Mayo
has been fully remedied by a partial settlement ex-
ecuted before the hearing was completed. Ac-
cordingly, no further remedy is in order with regard
to these two individuals. With respect to Kohut and
Mayo, however, I will recommend that Respondent
be ordered to offer each immediate and full rein-
statement to his former or substantially equivalent
position. I shall also order further that Respondent
make both Kohut and Caldow whole for any loss of
earnings- each may have suffered because of the un-
lawful discharges by payment to each of a sum of
money equal to the wages each would have earned
from the date of his discharge to the date each is
either reinstated or offered reinstatement less their
net earnings together with interest thereon at the
rate of 6 percent per annum, and that the loss of
pay and interest be computed in accordance with
the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716, to which
the parties hereto are expressly referred.
The unfair labor practices committed by Respon-
dent strike at the heart of the rights guaranteed em-
ployees by Section 7 of the Act.5 The inference is
warranted that Respondent maintains an attitude of
opposition to the purposes of the Act with respect
to the protection of employees in general . It will be
accordingly recommended that Respondent cease
and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.6
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and upon the entire record in this proceeding, I
make the following conclusions of law:
1. Hap Jones Distributing Co., Inc., is, and has
been at all material times, an employer engaged in
a business affecting commerce within the meaning
of Section 2(2) and (7) of the Act.
2. Automotive Warehousemen Local 241, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By discharging Neil Kohut and Margaret Cal-
dow, as found above, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed
N L R B v Entwistle Manufacturing Co, 120 F 2d 532 (C.A 4)
May Department Stores v N L R B, 326 U S. 376, Bethlehem Steel Co
v NLRB.120F2d641
them by Section 7 of the Act, as found above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor_practices are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact'
and conclusions of law and upon the entire record
in this proceeding, I recommend that Respondent,
Hap Jones Distributing Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its em-
ployees in the Union, or any other labor organiza-
tion of its employees, by discharging or in any other
manner discriminating against any individual in re-
gard to his hire or tenure of employment or any'
term or condition of employment except as
authorized in Section 8(a)(3) of the Act.
(b) In any other manner interfering with,
restraining, coercing employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or assist the Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, or to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities ex-
cept to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Offer to Neil Kohut and Margaret Caldow
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice
to their senority or other rights and privileges, and
make each whole for any losses each may have suf-
fered as a result of his discharge in the manner
prescribed above in the section entitled "The
Remedy."
(b) Notify any individual entitled to reinstate-,
ment if presently serving in the Armed Forces of
the United States of his right to reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and make available to the Board or
its agents, upon request, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,,
and all other records necessary to an analysis of the
backpay due.
(d) Post in conspicuous places at its usual place
of business, including all places where notices to
employees are customarily posted, copies of the
HAP JONES DISTRIBUTING CO., INC. . 1411
notice attached hereto and marked "Appendix."7
Copies of said notice on forms provided by the Re-
gional Director for Region 20 of the National
Labor Relations Board, shall, after being signed by
Respondent, be posted by it immediately upon
receipt thereof and maintained by it for 60 con-
secutive days thereafter in such conspicuous places.
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 20,
in writing, within 20 days from the receipt by
Respondent of a copy of this Decision what steps
Respondent has taken to comply therewith.8
' 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
9 In the event that this Recommended Order be adopted by the Board,
paragraph 2(e) shall be modified to read - "Notify the said Regional
Director in writing within 10 days from the date of this Order what steps
Respondent has taken to comply therewith "
APPENDIX
his hire or tenure of employment or any term
or condition of employment except as
authorized in Section 8(a)(3) of the Act.
We have already offered reinstatement and
made whole Peter J. Gutierrez and Gus Mayo,
and WE WILL offer Neil Kohut and Margaret
Caldow immediate and full reinstatement to
their former or substantially equivalent posi-
tions without prejudice to their seniority or
other rights and privileges and we will make
each whole for any loss of earnings each may
have suffered as a result of the discrimination
against him.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
All our employees are free to become or remain
or refrain from becoming or remaining members of
the above-named or any other labor organization.
HAP JONES DISTRIBUTING
Co., INC.
(Employer)
'Dated By
(Representative ) (Title)
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in or
activities on behalf of Automotive
Warehousemen Local 241, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any
other labor organization of our employees, by
discharging or in any other manner dis-
criminating against any individual in regard to
Note: We will notify any employee entitled to
reinstatement if presently serving in the Armed
Forces of the United States of his right to full rein-
statement 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.
This notice must remain posted for 60 consecu-
tive 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, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335