Tahoe Vangas

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 961 (N.L.R.B. 1974)

TAHOE VANGAS 961
Vangas, Inc., d/b/a Tahoe Vangas and Chauffeurs,
Teamsters & Helpers Local 150, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases
20-CA-8083, 20-CA-8094, 20-CA-8167, and
20-RC-11162
April 2, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 8, 1973, Administrative Law Judge
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel submitted its brief to the Administrative
Law Judge in lieu of an answering brief and also
filed a letter urging the adoption of the Decision and
requesting the correction of certain typographical
errors therein.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and letter and has decided to affirm the rulings,'
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Vangas, Inc., d/b/a
Tahoe Vangas, Stockton, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
in Case 20-RC-11162 on March 13, 1973, be, and it
hereby is, set aside and that that proceeding be, and
it hereby is, vacated.
I Respondent takes exception to the credibility findings of the Admims-
trative Law Judge and in particular contends that he erred in finding Bruce
Pegler an employee who was discharged by Respondent. a basically credible
and reliable witness despite rejection of some portions of Pegler's testimony
It is the Board 's established policy not to overrule an Administrative Law
Judge's resolution with respect to credibility unless the clear preponderance
of all the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3,
1951). Moreover, as pointed out in Iv L. R.B. v. Universal Camera
Corporation, 179 F.2d 749, 754 (C A 2), "nothing is more common in all
kinds of judicial decisions than to believe some and not all" of a witness'
testimony.
We also find no support for Respondent 's contention that the
Administrative Law Judge assumed the role of "advocate" on behalf of the
Union or improperly utilized affidavits of certain of Respondent 's officials
for impeachment purposes.
2 We hereby correct the following inadvertent errors in the Decision: In
the 10th full paragraph of sec 111, D, 5, the date should read January 1973
rather than 1971. The word "their" has been inserted before the final word
in the third full paragraph of the notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate as to the hire, tenure
of employment, hours of employment, or any
term or condition of employment of Aubrey
Willis and Bruce Pegler, or any other employee,
because he (she) has engaged in union or
concerted activities or any other activity protect-
ed by the Act.
WE WILL NOT interrogate employees concern-
ing their union activities.
WE WILL NOT threaten employees with reprisal
and loss of employment because of their engaging
in union activities or selecting a union as their
representative.
WE WILL NOT discourage membership in
Chauffeurs, Teamsters & Helpers Local 150,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization of our employees, by
discriminating in regard to their hire or tenure of
employment or any term or condition of employ-
ment.
WE WILL NOT refuse to bargain collectively
with said Union as the collective-bargaining
representative of our employees in the appropri-
ate unit described below:
All servicemen , route salesmen and branch
clerical employees employed by us at Au-
burn, California, excluding all other employ-
ees, office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist the above-named or any
other labor organization, to bargain collectively
through representatives of their own choosing, or
to refrain from any or all such activities except to
the extent such right may be affected by an
agreement requiring membership in a labor
209 NLRB No. 145
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL offer Aubrey Willis and Bruce Pegler
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges.
WE WILL pay Aubrey Willis and Bruce Pegler
for the earnings lost because of the discrimination
against them, with 6 percent interest.
WE WILL, upon request, bargain collectively
with said Union, as the exclusive bargaining
representative of our employees in the unit
described above, and, if an understanding is
reached, embody such understanding in a signed
agreement.
On April 17, 1973, a complaint issued in Case 20-CA-8167
alleging violation of Section 8(a)(5) and (1) of the Act .2 A
report on challenged ballots and election objections was
also issued by the Regional Director in Case
20-RC- 11162 3 On the same date , namely , April 17, 1973,
an order consolidating Cases 20-CA-8083 , 20-CA-8094,
20-CA-8167, and the matters raised by the challenges to
two ballots in Case 20-RC-11162 , and the election
objections predicated on the same two discharges were
consolidated for the purpose of hearing before an Adminis-
trative Law Judge.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and the Respondent , I make the
following: 4
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
VANGAS, INC., D/B/A
TAHOE VANGAS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 13018 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Administrative Law Judge: The
above proceedings were heard on June 4 through 7, 1973,
at Sacramento, California.
On March 23 , 1973, an order consolidating cases,
consolidated complaint, and notice of hearing issued in
Cases 20-CA-8083 and 20-CA-80941 which allege viola-
tions of Section 8(a)(1) and (3), two discharges , of the Act.
i The charge in Case 20-CA--8083 was filed February 16, 1973. and the
charge in Case 20-CA-8094 on February 21, 1973.
2 The charge was filed March 21, 1973
3 The challenged ballots and the election objections relate to the same
two discharges covered by the complaints in Cases 20-CA-8083 and
20-CA-8094.
I The General Counsel moved to correct p 22, 1 6, of the transcript of
proceedings by changing "I've" to "you've"; and on page 48, line 20, by
changing "see Youker" to "seniority " No objections to these changes have
been indicated by Respondent . I have examined the transcript with respect
thereto , concluded that they are proper and accordingly the record is hereby
so corrected The General Counsel also moved to correct the record at p
460, 1. 15, by changing "end of 1973" to "end of January 1973 "
After filing said motion and after briefs were filed , the General Counsel
Respondent , a California corporation with its principal
office in Fresno , California , is engaged in the retail sale
and distribution of liquid propane at its facility in Auburn,
California , and various other facilities in the western States
of the United States . During the past year , Respondent had
gross sales in excess of $500 ,000 and during said time
Respondent purchased goods valued in excess of $50,000
from outside the State of California , and in the course of its
business sold and delivered goods and materials valued in
excess of $50 ,000 directly to buyers located outside
California . I find Respondent is engaged in commerce
within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Chauffeurs , Teamsters & Helpers Local 150, Internation-
al Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America , is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
About February 1971, employee Aubrey Willis met a
representative of Teamsters Local 150 and ascertained it
would be interested in representing Respondent 's employ-
ees. Willis apparently did nothing until January 1973
(Willis had talked to employees earlier concerning a
union), when after discussions with employees he spoke to
the same person who in turn caused Union Representative
moved to reopen the record to receive an affidavit of John Mathis for the
purpose of accurately setting forth certain portions of said affidavit which
Mathis purportedly had read into the record , which were not so precisely set
forth in the transcript This motion was opposed by Respondent Thereupon
I issued an order on September 7, 1973, allowing the motion to reopen the
record for the purpose of receiving into evidence as G.C. Exh. 15 certain
limited portions of the affidavit of John Mathis, further allowing limited
supplemental briefs and granting the parties time to show cause whether or
not any further hearing were requisite because of the limited reopening of
the record as set forth A supplemental brief was filed by Respondent and
an opposition to further hearing was filed by the General Counsel . No valid
purpose having been shown as to why further hearing should be had, the
record in the above matter is again hereby closed
TAHOE VANGAS 963
Tony Santos to contact Willis within a week. During the
same week of Santos' contact, a first union meeting was
held at Willis' house on Friday, January 19. Willis also
testified that before he contacted Santos he had talked to
all of the employees but one while they were working.
He said by signing the card we were represented by
Teamsters Local 150 against anything that may occur
resulting from the evening of January 19th meeting as far
as being dismissed, fired, or whatever.
B. The Bargaining Unit and Representation
The parties stipulated that the following unit was
appropriate: "All servicemen, route salesmen, and branch
clerical employees employed by Respondent at its Auburn,
California, location, excluding all other employees, office
clerical employees, guards and supervisors as defined in
the Act."
It was also stipulated that the unit consisted of 10
persons. At the meeting on January 19 at Willis' home,
there were six employees present. Authorization cards were
distributed by Santos, the union representative.
Employee Bruce Pegler testified that he recognized the
signatures of five of the persons but was not that familiar
with the signature of Don Knox. However, Pegler stated
that Knox received the card and that he saw him sign and
return the card. Accordingly, I find that six cards bear
authentic signatures.
In addition, the card on its face contains an unequivocal
authorization for representation by the Union .5
However, Respondent contends that the employees were
induced into signing the card for a number of reasons.
Pegler testified on direct examination "We were told these
authorization cards were solely stating the Union would
represent us." On examination by Respondent, Pegler
testified:
Q. Did he [Santos] tell you that the purpose of his
requesting the signature on the card was so that if
Vangas found out you had been at this meeting they
could not fire you or take other disciplinary action?
A. Yes, sir.
Pegler also testified that Santos told him that he needed
enough signatures to show his boss there was some interest
so he could come back. Pegler was then asked:
JUDGE SINSHEIMER: What was said to you with
respect to the matter of determination of employees in
relation to signing the cards? What did he say to you?
THE WITNESS: His actual words as best I can
remember, it was known John Mathis knew about the
meeting that evening, and he said, "For all we know, he
could be outside the door listening, but that is very
unlikely", he said. "He'll want to know who is
attending the meeting so as to find out who is going to
go for the union and who is not." He said, "By signing
this card you are now represented by Local Teamsters
150" and we were not committed in any way to sign the
card. It was our own decision.
It is headed "Authorization for Representation" and reads . "I, the
undersigned employee of company authorizes as my exclusive
bargaining agent , Teamster Local 150, affiliated with the International
Brotherhood of Teamsters . Chauffeurs , Warehousemen and Helpers of
America to represent me in negotiations for better wages, hours and
working conditions."
6 See also the following testimony.
Pegler was then asked:
JUDGE SINSHEIMER: Why did you sign the card?
THE WITNESS: Me?
JUDGE SINSHEIMER: Yes.
THE WTTNESS: I was relatively happy with the results
of the meeting and I wished to be represented by Local
Teamsters 150.6
Employee Roy Smith testified with respect to the cards:
THE WITNESS: He said if we wanted to be represent-
ed by Teamsters Local 150, that we could sign these
cards and that if a repercussion came to us as far as
Van Gas doing anything to us because we had been to
a union meeting, that this would show we had been at
the meeting so they could take steps to protect us.
Smith further testified in response to a question:
I believe he made a statement that Van Gas would
be notified that a majority of us had requested the
Teamsters represent us, and from that the cards would
be their proof that there was a majority interested.
George McCall, a witness for Respondent, on direct
examination testified:
Q. Did he tell you why he wanted you to sign it?
A. The way I understood it was just showing that
we was interested in the union.
s s s s s
Q. (By Mr. Quinlan) Just tell us what Mr. Santos
said, if you recall.
A. I understood no one would see the card and that
dust to show we was thinking about the union, that's all
I know.
s s s • s
Did anybody say anything the card had any
relationship to any disciplinary action the company
might take?
A. I think the card was kind of a protection or
something if anybody was to be laid off or something.
JUDGE SINSHEIMER: Who said that?
THE WITNESS: I think that's the way Mr. Santos
explained it to us.
McCall further said he didn't recall whether he read the
card or not and then testified on cross-examination:
Q. (By Mr. Quinlan) In other words , what you wanted was the
cloak of protection that has been described?
A No, sir. What I was interested in was better benefits and a
better pay scale and better working conditions for the occupation I
held at that time It had nothing to do with security.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. I gather from your testimony about the meeting
you cannot really remember everything that was said
by Mr. Santos.
A. No.
JUDGE SINSHEIMER : But you signed the card?
THE WITNESS: Yes.
As indicated, McCall's testimony is vague as to exactly
what was said and it appears clear from the testimony of
Pegler and Smith that they were informed that signing the
card would authorize the Union to represent them and that
in addition it could constitute some protection for them in
the event of reprisal for union activity. I accordingly find
that six cards were signed by the persons indicated thereon
and constitute valid authorizations to the Union. I further
find that these six cards represented a majority of the 10
persons stipulated as m the unit on January 22. I
accordingly find that the Union represented a majority of
the employees in the unit as of January 22, 1973, the date
on which the Union admittedly (by wire) advised Respon-
dent that it represented a majority of employees in the unit
and requested a meeting.
C. The Alleged Violations of Section 8(a)(1) of the
Act
Auburn Plant Manager John Mathis testified that on
January 17, 1973, employee Richard Shaw (who subse-
quently attended the union meeting and signed a card) told
him that Willis was seeking to get a union in at the Auburn
branch and that the employees were going to meet at
Willis' home the following evening to discuss the matter.
The following day, according to employee Bruce Pegler, his
truck became inoperable while he was making deliveries.
By radio he notified Mathis of the problem. Mathis drove
to where Pegler's truck was stalled and then he and Pegler
left in Mathis' car to pick up a replacement part.
Pegler testified that during the trip with Mathis a
conversation relating to the Union occurred. According to
Pegler, Mathis said that he heard that there would be a
union meeting that night.?
Pegler replied that he had heard something about a
meeting. Mathis then asked him "Where is it going to be
held, Aubrey's house?" to which Pegler replied that he
didn't know and that he'd have to wait until he got back to
the office to find out. Mathis then asked Pegler "Are you
guys planning on going Umon?" Pegler responded he
believed they were going to have a meeting to discuss the
pros and cons, that he didn't know anything about a union
and just wanted to see what it was. Mathis told Pegler he
was glad Pegler had an open mind and could see both
r There is some dispute in the record as to whether this occurred on the
18th or the 19th. Respondent introduced certain invoices dated the 19th
Pegler explained they were so dated as work was performed then and the car
was not ready until the 20th. i am of the opinion and conclude that this
incident did occur on the 18th as testified to by Pegler rather than on the
19th as set forth by Mathis, because (1) according to Mathis, Shaw had told
him on the 17th there would be a meeting on the 18th, although it was
actually not held until the 19th ; (2) Mathis, as set forth post. spoke to
Regional Manager Youker concerning the Umon on the morning of the
18th; (3) on my appraisal of Pegler and Mathis as witnesses , and (4) finally,
employee Roy Smith corroborated Pegler as to time Furthermore , the date
Jf this conversation, whether the 18th or 19th, does not appear material
8 This Yreka position will be considered further
9 This asserted recommendation will also be considered in connection
sides. Pegler testified "He also stated he would have
nothing to do with the Union. He was completely and
solely against it." Pegler said that Mathis added that he
would not work under a union and that he'd be the first to
leave if the Union came in. Pegler also testified: "He also
stated Bakersfield [branch] tried to go union and they
[Respondent] fired the whole crew and they would not
think twice about doing it again."
There was further discussion as to why Mathis was so
opposed to the Union. Mathis then indicated, according to
Pegler, that he couldn't help him on his route, during his
free time, or when Pegler needed it, that they could no
longer be on a friendship-like basis, and that he didn't
think Pegler would want that kind of a relationship. Pegler
said Mathis then asked Pegler to notify him immediately if
the employees decided to go union with the explanation
that he had been offered a managerial post in Yreka and
had been putting Dave Youker, area manager, off on it until
then but would accept the position if the Auburn employees
went union .8 Pegler then asked Mathis about his job and
whether, regardless of the situation, would he get a
recommendation if something occurred. According to
Pegler, Mathis told him "You sure will. You'll get a
recommendation for any job you want from me and a good
one." 9
After work on January 18, Mathis called a meeting of
Respondent's route salesmen at which Smith, Shaw, Pegler,
Wyn Thoma, and Mathis were present. Pegler testified he
arrived after it started and asked Mathis "Is this meeting
strictly off the record, or do I have to watch what I say?"
Mathis told him it was off the record, he should say
whatever was on his mind and that's why he was having
the meeting. Pegler wanted to know why the route
salesmen were required to work twice the number of hours
they were being paid for, to which Mathis replied "Well,
it's winter." Pegler responded "That's no justification,
John." There followed a discussion about the workload on
Pegler's route as compared with that which existed when
Mathis ran the route. According to Pegler, at the
conclusion Mathis stated to him "Just hang in there-You
are doing a good job so far." Pegler said it would be nice to
get paid for the hours worked but they would also like to
have a little appreciation shown. Mathis conceded that he
didn't always show his appreciation and he then thanked
Pegler for the job he was doing and, according to Pegler,
stated that anyone else in his position would have quit in
November when the weather turned cold. Mathis then
thanked all the employees for the job they had been doing
with Pegler 's termination . Mathis claimed, as set forth supra, the discussion
was on the 19th. According to Mathis, Pegler told Mathis he was going to a
union meeting and had an open mind Mathis also said Pegler knew he was
going to Yreka and that there were no threats. Mathis did, subsequently,
deny ever making a statement that they had fired the Bakersfield employees
because of the Union This latter relates also to a meeting with employees
that Mathis held later that day. I conclude that Pegler's version is essentially
correct, based not only on my appraisal of Pegler and Mathis but also the
testimony of others post with respect to the January 18 meeting of
employees with Mathis and other conduct on the part of Mathis with
respect to the Union As for the alleged Bakersfield terminations, I am not
crediting Pegler's testimony which he also repeated with regard to Mathis'
statement at the meeting of employees discussed post for reasons set forth
hereafter
TAHOE VANGAS
and said that raise time was coming up and he would try to
make it up to them by giving them a raise.
A discussion ensued with regard to Willis. Smith asked,
according to Pegler, why a good serviceman like Willis was
going to be let go. Pegler said Mathis replied first that
Aubrey was slow and complained a lot and that Mathis
added Willis had tried the union thing two or three times
before in the past and the only reason he was shot down
before was because he could not get enough employees to
back him. Pegler testified that Mathis said:
Aubrey isn't stupid-waited until he got a relatively
new crew, a very severe winter, and waited until the
morale of the employees was low and then played up the
union thing.-There is nothing I can do about him. It's
out of my hands completely. Aubrey Willis is going to be
let go as soon as warm weather comes in. [Emphasis
supplied.]
According to Pegler, Roy Smith then asked Mathis about
his and Respondent's feelings about the Union and Mathis
replied "I am totally against it . I will not have any part of
the Union. You couldn't pay me enough to work for a
union." Then, Pegler said Mathis repeated what he had
earlier told Pegler concerning the fate of the Bakersfield
employees who had attempted to obtain union representa-
tion and stated "If you guys try to go union it will be out of
my hands. You'll get fired, too, and there won't be
anything I can do about it." Pegler further said that in
response to Smith's question Mathis also stated "You
know you'll be laid off in summer because the workload is
so light one man can handle everybody's route so
everybody else will be laid off." With respect to the
foregoing, Smith corroborated Pegler concerning the
discussion about Willis. Smith said he asked why they were
planning to let Aubrey (Willis) go and then testified: "He
replied to me, Aubrey could not get along with the
customers. He had been trying to push the union thing for
several years, and that he had just had it with him. [Emphasis
supplied.]" Smith also corroborated Pegler's testimony
regarding raises if they stayed behind Vangas through the
winter. With respect to Bakersfield, Smith did not
corroborate Pegler's testimony as to the alleged firing of
the Bakersfield employees who went union. Smith testified
as to the Bakersfield incident:
THE WITNESS: To the best I can remember on it, it
was brought up, I believe Mr. Mathis brought it up,
that Bakersfield had gone union, that it did not work
out. The people down there were real dissatisfied with
it, and that they felt so strong against it they voted it
out the following year.
Smith also testified as to this meeting with Mathis:
I believe Bruce asked him, "Well, you don't mean
they would actually fire every one of us if we joined the
union?" and he [Mathis] replied it was quite possible.
[Emphasis supplied.]
With respect to termination for going to a union meeting,
Mathis testified someone brought up the question and he
responded:
965
THE WITNESS: "Will we be fired? What will happen
to us? You know we are going to a union meeting.
What is going to happen? Is somebody going to fire
us?"
JUDGE SINSHEIMER : What did you say to that?
THE WITNESS: I said, "I don't know what the
company is going to do."
Mathis admitted Pegler did "most of the talking [empha-
sis supplied]" at the meeting on January 18 and that Pegler
had stated he was going to the union meeting at Willis'
house, "with an open mind ." Mathis also admitted the
subject of Willis ' being discharged came up at the meeting.
According to Mathis, Smith asked him whether Willis was
going to be fired on account of his attempt to bring in the
Union. Mathis said he could not recall precisely his
response but was sure he did not say Willis was going to be
fired.
Mathis admitted mentioning the Bakersfield situation
but said he merely informed them that Bakersfield
employees had selected a union which they subsequently
voted out. Both Pegler and Smith testified that Mathis did
state the Union was "voted out" at Bakersfield . However,
as set forth, Smith testified only that Mathis had said
Bakersfield had gone union and the people being dissatis-
fied with it had voted it out the following year. Pegler
asserted that what Mathis had said was that the employees
who remained, after the union supporters were terminated,
decertified the Union.
There is testimony by Mathis. He said that the employees
who had brought the Union in at Bakersfield were still
there and suggested that the men call Bakersfield. Upon
questioning by me, Mathis admitted he did not have any
information at that time as to whether Bakersfield
employees were still employed and subsequently said that
he felt that they had not been discharged. However, I also
note Pegler's testimony that Mathis during the meeting had
said "If you guys try to go union, it will be out of my
hands, you will get fired too and there won't be anything I
can do about it." Smith stated that Bruce (Pegler) had
asked Mathis "Well, you don't mean they would actually
fire everyone of us if we joined the Union?" and Mathis
had replied that it was quite possible if they joined the
Union. This presents the conversation in a somewhat
different posture from that set forth by Pegler but does
corroborate his testimony that there was a discussion about
termination and also that Mathis had definitely left the
impression that people might be terminated for joining the
Union.
Mathis , as set forth, admitted in response to a question
about whether employees would be fired for going to a
union meeting responding : "I don't know what the
Company is going to do." According to Mathis, the
employees also asked "How does the Company feel about
a union?" to which Mathis responded "As far as I know,
the Company don't like the Union." Some employees then
asked "Will they fire me?" Mathis then answered "I can't
tell you what they are going to do . I don't know. I am not
the one who does this."
I find and conclude that Mathis did discuss the Union
with the employees on January 18 and did indicate that
Aubrey Willis had "played up the union thing" and in that
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same connection was going to be let go when warm
weather came. Mathis further indicated his and the
Company's total opposition to the Union and referred to
the Union coming in and going out at Bakersfield.
However, I am not crediting Pegler's testimony that Mathis
said that everyone at Bakersfield had been fired. Although
I do not place the discussion with respect to the matter of
termination for union activity in the context re Bakersfield
that Pegler did, I conclude from all the testimony,
including that of Pegler, corroborated in part by credited
testimony of Smith, and Mathis' testimony that the subject
was discussed and his admitted responses, that Mathis
clearly implied that employees at the meeting might be
terminated if they participated in union activities. 10
On the morning of the 19th, according to Pegler, Mathis
asked him how the union meeting had gone. Pegler replied
they didn't have one on the 18th because the wires were
crossed and it was going to be that night (the 19th). On the
evening of the 19th while Smith was at the union meeting,
Mathis telephoned his home. Smith's wife called him at
Willis' home and Smith then returned Mathis' call. Mathis
asked if he was at the union meeting. Smith denied it, and
Mathis told him he couldn't understand why he wasn't
there since all the employees had been informed of it. On
the 20th, according to Pegler, while he and Smith were
fueling their trucks, Mathis drove up and talked to them
and asked what pay scale benefits did the union offer.
Pegler testified he and Smith sought to avoid the questions.
Smith departed and left Mathis and Pegler alone. Mathis
brought out some literature for a laborers' union , talked
about that, and, according to Pegler, Mathis said that he
wanted to remind him that if they went union he wanted to be
the first to know because he wanted to get out of there and
didn't want any part of it.
Mathis did not specifically deny the foregoing but
asserted he was not at the plant on that Saturday.
Subsequently, he admitted he could not recall whether or
not he was there that day. I am crediting Pegler's testimony
with respect to this particular conversation.
Based on the foregoing, I find that Respondent, as set
forth above, by interrogating Pegler on January 18, 19, and
also 20 and by questioning Smith on the evening of
January 19, and also 20 violated Section 8(a)(1) of the Act.
I further find that at the meeting with employees on
January 18 that Mathis threatened employees by advising
them, in effect, that Willis was being terminated because of
union activities and by further indicating and implying
that employees who joined the Union or participated in its
activities would be subject to termination and that
Respondent thereby further violated Section 8(a)(1) of the
Act.
D. Discharges of Willis and Pegler
1. Preliminary discussion
Aubrey Willis, a serviceman , was an employee of a
predecessor company taken over by Respondent in 1965.
He was terminated February 1, 1973.11 Bruce Pegler was
hired October 1, 1972, and terminated February 2, 1973.
Respondent admits Willis was an excellent serviceman
and that good servicemen were hard to obtain. However, it
contends Willis' poor attitude and lack of cooperation were
such as to require his termination when he refused to
accept a transfer to Dunsmuir, a recent acquisition located
over 200 miles from Auburn.
According to Respondent, it had as early as December
27, 1972, decided to transfer John Mathis, the Auburn
manager, to Yreka and to terminate Pegler and also Willis
unless Willis would accept a transfer to Dunsmuir if
offered to him. The record is clear that at some time in
December 1972 Respondent had acquired from another
company facilities at Yreka and Dunsmuir, California. As
set forth in more detail post, Respondent asserts it decided
to terminate Pegler prior to union activity for unsatisfacto-
ry work. It also asserts Willis' attitude and lack of
cooperation made it imperative that he be transferred or
terminated upon appointment of a new manager at
Auburn. Respondent asserts it was willing to try Willis on
a transfer to Dunsmuir because there developed a need for
a serviceman and Dunsmuir Manager Stolte was a
"strong" manager whom it was felt could handle Willis.
Respondent also asserts it selected as manager at Auburn a
man without prior management experience who was also a
former serviceman, William Braham, an assistant to
Regional Manager David Youker. Hence, Respondent did
not want Braham to have to deal with Willis and also he
could fill in as serviceman where necessary. According to
Respondent, Braham was selected as Auburn's manager
about mid-January. Whether or not such date is correct is a
question. But even assuming arguendo, such were so a
question would apse with respect to Respondent's conten-
tion as to its alleged decision to terminate or transfer Willis
as of December 27, 1972.
With respect to Pegler, Respondent contends he did not
perform his work properly and that under a new manager
it could no longer retain him as it might have with Mathis,
who had formerly run Pegler's route.
Certain evidence relating to the specific terminations of
Willis and Pegler and as to the likelihood of terminations
for union activity by Respondent has been set forth. The
General Counsel also presented evidence that not only was
Willis an excellent serviceman but that Respondent's
alleged grounds for his termination were either essentially
unsupported or pretextual. The General Counsel also
sought to establish that under existing conditions and
circumstances Pegler was a satisfactory employee and that
Respondent had recognized such.
Respondent particularly relies on a series of events
relating to its acquisition of new facilities and the necessity
for transfers as a result thereof to establish its defense.
Respondent asserts that certain records in evidence
(buttressed by testimony) are conclusive. There is no doubt
that there was an acquisition and need for certain
10 1 have noted the testimony of Wyn Thoma called by Respondent with 11 Respondent argues the date was January 31 , 1973, evidently to
respect to the meeting . Thoma admitted that he came there late and could predicate a position relating to the petition in Case 20-RC-1162 However,
not recall the subjects discussed In fact, he had little recollection of the this is immaterial since in any case the petition was filed on January 31,
meeting and, therefore, I attribute no significance to his testimony. 1973.
TAHOE VANGAS
management decisions with respect thereto which could
result in personnel changes. Whether or not such was used
as well to eliminate union adherents is the issue. Also
particularly pertinent is when personnel changes were
planned . This timing will be considered hereafter and also
whether or not alleged defects in Willis' and Pegler's work
records, even if so, were the causal factors in their
terminations.
2. Discussion re Willis, the Union , and his work
record
First as to Willis, as set forth , the union meeting of
January 19, 1973, was held at his home and he was the person
responsible for instigating union organization . There had
been discussion concerning his impending termination at
the union meeting on January 18 which Mathis had
conducted and which I have found occurred as set forth,
particularly Mathis' statement as testified to by Pegler that
Aubrey had waited until morale was low and "then played
up the union thing. There is nothing I can do about him. It's
out of my hands completely. Aubrey Willis is going to be
let go as soon as warm weather comes." (Emphasis
supplied,)12
Smith 's version , as set forth , was he had asked why they
were planning to let Aubrey (Willis) go and that Mathis
12 I have also noted the following testimony by Pegler concerning earlier
mention of possible termination of Willis
Q. (By Mr. Quinlan ) Had you heard Aubrey was going to he
terminated')
A Yes, Sir
s s s s s
Q. (By Mr Quinlan) Did you talk to a number of people who
expressed they were aware of the same thing?
s s s s •
Q Well, the ones you did come in contact with on a daily basis.
among them was there talk Mr Willis was not going to be long on the
job?
A There might have been. I remember talking to Roy. I couldn't
say about anybody else We didn't bring it up every day, it was casually
mentioned probably.
s s s s s
Q No, not how long did the conversation last Over what period
of time'
A Oh, I was told about it I think by Roy, I'm not sure exactly who
first told me, in December, I'm pretty sure.
JLDtih SINSHEIMER' Roy told you?
THE WITNESS I'm not sure who told me I remember I was told
around December
JUDGE SINSHEIMER' What were you told them?
THE wiitPss: It was hearsay that Aubrey was probably going to be
let go The common knowledge was him and John never did get along
The foregoing indicates there may have been differences between Willis and
Mathis in December but does not constitute evidence that Willis was in fact
going to be terminated.
18 Respondent contends that Smith's testimony clearly supports its
position that Willis was slated to go long before any union activity. Certain
of his testimony does reflect that there was some indication of dissatisfac-
tion with Willis previously manifested. To fairly evaluate Smith's testimony
as to Willis' termination, pertinent testimony is set forth hereafter in some
detail.
Q. Do you recall any mention of Mr Wilhs7
A. Yes When I first went into the meeting, I noticed he was not
present, and I asked why Aubrey wasn't there, and he said he didn't
feel he needed to be there, there was no reason for him to be there.
There was a bit of discussion about Aubrey going to be let go
Q Who said what in this discussion9
967
had replied that Aubrey could not get along with the
customers and he had been trying to push the union thing
for several years and that he had just had it with him.13
Respondent asserts that , although Willis was an excellent
serviceman , his attitude was disrespectful and bad , that he
would gripe about his assignments and, although Willis
performed his assignments , he was generally uncoopera-
tive , would interrupt or butt in where not involved, was
antagonistic to customers , and had offended female
customers . Respondent points out testimony of former
manager, Bill Jones (who preceded Mathis ) that he found
Willis to grumble about assignments and to manifest an
uncooperative attitude during 1967 and 1968 . Jones also
testified as to Willis:
Q. (By Mr . Quinlan) Did you have difficulties with
Mr. Willis with respect to the outlying districts?
A. I really had no problems with Mr. Willis. We
had two outlying areas out of Auburn . Foresthill and
French Meadow . These were long runs we had to do
service calls.
To my estimate , Aubrey is a man who does not like
surprises , so I always tried to set his work up ahead of
time . If he was going to go to French Meadows on a
long run a day or two, I tried to let him know ahead of
time so he could prepare for it.
A I believe I brought it up I believe I asked him why they were
planning to let Aubrey go . I could not understand it The man did good
work . All the people who were there got along, worked good together,
and I could not understand it, letting him go
He replied to me, Aubrey could not get along with the customers
He had been trying to push the union thing for several years , and that he
hadjust had it with him [emphasis supplied 1.
• s • s s
Q. You said you might have asked Mr Mathis about Mr. Willis,
why he was going to be fired. Had you previously heard Mr Willis was
going to be fired, or had any knowledge about that9
A There was a beef or an argument , I don't know what took
place , I wasn't there . It was in the office I believe it was before
November sometime, and I believe it took place in front of the office
personnel I had heard about it I was with John one day and I asked him
if he was seriously thinking about letting Aubrey go or if it was just kind of
a harassment thing they were keeping up between the two of them, or what,
and he told me they were planning on keeping him until the summer of '73,
at which time they would give him his vacation and then he was thinking of
letting him go after that
Q. Did he say he was thinking of letting him go7 What were his
words, to the best of your recollection?
A. That I'm not really sure of exactly how definite the statement was
about letting Aubrey go . [ Emphasis supplied I
Q. In that conversation you just related, in other words, why did
you question Mr. Mathis at the meeting about Mr Willis not being
there9
A. Aubrey wasn 't at the meeting , that was one of the reasons that
I asked him what was going on , and he stated at the meeting, as far as
Aubrey was concerned , it was out of his hands; what was going to be
done, would be done . It was not up to him any longer.
Respondent asserts the latter testimony of Smith shows that prior to
notification of union activity on January 17 all of the personnel changes
necessitated by the acquisition had been completed and a course of action
decided upon As will be discussed more fully, the meeting with Mathis on
the 18th was admittedly after employee Richard Shaw had advised him on
the 17th of the union activity and after Mathis spoke to Youker by phone
on the morning of January 18. Also, the testimony of both Pegler and Smith
attributes to Mathis a reference to Willis' union activity as a cause for his
termination Additionally pertinent is the testimony by Pegler as to Mathis'
assertion that Willis would go "by summer " This, too, will be considered
further hereafter.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You mean prepare physically for it or mentally?
A. Mentally. I° would try to rotate these calls
between the two service men and send one one trip and
the other the next trip so the work load was equal.
Q. Were your preparations in handling Mr. Willis
with respect to directions and orders to him any
different than your preparation of yourself for giving
directives and orders to the other employees?
A. Absolutely.
Q. In what way?
A. Back up to what I said before . I liked Mr. Willis.
It's been my estimation he is a temperamental man, but
he was a good employee and a good service man. I
thought I could help him and I went out of my way a
few times trying to help him. But I did treat him
differently than the other employees , because I liked
the man . I liked them all, but I thought I could help
him.
Jones said on one occasion Willis embarrassed him
before the crew by stating he didn ' t know why he had to do
someone else 's work and thereafter he discussed Willis'
attitude with him. Jones also said Willis complained about
taking natural gas jobs and that he had a couple of requests
from customers that Willis not be sent to their homes
because of attitude . Jones mentioned one complaint of a
woman customer who said she didn ' t want Willis to return
because she said she didn 't trust him because he laid a
hand on her shoulder . Jones said he told the woman "Well,
I really wouldn ' t call that a pass , would you?" and she
replied "Well I don 't know ." Jones talked to Willis about it
and "I think we were both laughing about it because he
thought it was one of those things . He had known the
customer for a long time."
According to Jones, he talked to Mathis, his successor as
manager, about Willis and that he had to be handled
differently from most employees . Jones testified:
He was temperamental ; he was a good employee. He
did his work , but I was afraid with a young manager
coming in, that Mr. Willis might give him more
problems than he had given me.
I frankly said I should have dismissed Aubrey before
I left there due to attitude . [Emphasis supplied.]
In essence Jones testified he liked Willis, who did his job
well and was an excellent serviceman but had an attitude
problem . However , he did not recommend his discharge.
Respondent also referred to testimony by Waldo, who
was briefly acting as manager for 2 months during an
illness of Mathis in 1971. Waldo testified to an incident
during the time he was acting as manager in 1971 when
Willis indicated reluctance and was manifestly upset about
taking an assignment but later went. As for actual ability,
Waldo testified : "I think he is probably one of the best
service men I have ever seen . I hear he is the best when it
comes to installing appliances . He is good."
In addition to the incident referred to by former
Manager Jones with respect to a female customer who said
Willis put his hand on her shoulder , Respondent offered
testimony from Mathis concerning an instance in 1970
when a woman called him , stating Willis had made an
advance. Although Mathis testified he believed this , that it
was serious , and he "probably should have terminated
him," he didn't take any action except to tell Youker
sometime later . First, Mathis said he couldn't think of any
good reason for keeping Willis, then said that since Willis
was such a good serviceman and that good servicemen are
hard to get, they gave him another chance.
Willis denied making any advance and said Mathis had
told him he believed him. I am crediting Willis as to this. In
any case, whatever occurred, Respondent did not view it as
a matter requiring disciplinary action.
Respondent cites three instances , two in 1971 and one in
1972, of Willis' problems with customers where he had
allegedly been abusive or unfriendly. These related to an
"Early Bird Special" 14 when , according to Mathis , in 1971
Willis told a Mrs. Parcher her stove was no good and he
didn't have time to fix it . Mathis also referred to an
incident in 1971 at Armstrong's house when at 5 p .m. with
about 30 to 45 minutes to finish installing a furnace and
cooling unit in heat of 100 degrees , "Aubrey got mad,
stormed around and kicked around." According to Mathis,
Armstrong told him this and that he was upset about Willis
and wanted to have the equipment pulled out . Mathis also
referred to a matter (apparently in December 1972)
involving a customer in Heather Glen where the heater
would work fine for a while and then blow the door off the
mobile home . The customer was concerned this would
happen in the middle of the night . According to Mathis'
testimony, Willis' attitude was the "damned heater is no
good," and the customer looked startled, as if Willis didn't
care if he froze or not.
However, in rating Willis in April 1972, he was rated "3,"
"on VANGAS STANDARD" as to "customer relations ." Mathis
explained "on VANGAS STANDARD" represented a standard
which Respondent considered exceeding that generally
regarded as satisfactory by its competitors.
The one item on which Willis was downgraded was on
"personality and cooperation" on which he was rated "2,"
below "VANGAS STANDARD."
Respondent also brought up an incident in 1970 in which
Willis had an argument with a highway patrol officer
following an auto incident . Finally, it referred to an
incident in December 1972 where Willis interrupted a
discussion Mathis was having with another serviceman
about a heating and cooling unit . According to Mathis,
Willis interrupted them in a very loud manner and got
completely out of control.
Willis testified as to his relations with Mathis:
Q. A little over a year ago you had an argument in
front of the other employees with Mathis , is that true?
A. I made that statement myself . You can call it an
argument or a discussion or whatever you want, yes.
Yes. Yes.
Q. You characterized it as an argument, isn't that
true?
A. Yes.
14 A special preseason check and servicing
TAHOE VANGAS
Q. As a result of that argument you were told by
Clarence Tucker, Mathis was thinking of firing you?
A. Correct.
Q. This was not the first time you had had
problems about arguments with your supervisors in
front of other people, was it?
A. Oh, there might have been other small incidents.
Willis also admitted discussing matters with Mathis when
other employees were present. He testified further:
Q. You had this incident about a year ago with
Mathis, and in November of 1972 you state in your
statement you had another incident with Mathis, is that
right?
A. I stated that, but as I think it over, I believe it
was December.
A .
Q.
A.
Q.
A.
Q.
A.
December?
Yes.
1972?
Yes.
And this involved a heating unit?
Yes.
is this the one that was sooting?
Yes.
Q. Let's get back to this statement.
There was an occasion on which you had a difficulty
with Mr. Mathis, which you say occurred in December
1972, regarding a heating unit for a customer. Is that
correct?
A. Right.
Q. Did Mr. Knox ultimately go out and fix that
particular unit?
A. Yes, he did.
Q. Have you since ascertained it was the problem
of a burner being cocked?
A. Yes, sir.
Q. And that after that was repaired, there was no
further problem?
A. I could not say that.
Q. Was that the same time you had the problem
with Mathis in which he accused you of not caring
about the customers and letting a person sit out there
with no heat?
A. Yes.
Q. That wasn't a very friendly conversation, was it?
A. Not really.
The incidents in December 1972, together with Mathis'
apparent antagonism to Willis, evidently led to expressed
opinion by some employees in December 1972 that Willis
faced possible termination as stated, supra, by Smith and
Pegler.
Although certain of the above incidents may have
occurred as set forth, it is evident Respondent did not give
them much weight at the time-at least prior to December
1972. Apparently some of the incidents, including the
interruption by Willis in December 1972, were annoying to
Mathis. It is also evident that Mathis and Willis were
969
antagonistic to each other. Further, I conclude from both
the record and my observation of Willis as a witness that
he might well express himself on occasion as to likes and
dislikes.
The foregoing may have contributed to Willis being
offered a transfer by Mathis on January 31, 1973, to
Dunsmuir (200 miles away) under "strong" Manager
Stolle, whom Youker felt could handle Willis. Willis
immediately refused the transfer. When this offer to Willis
was conceived and planned, as well as whether or not it
was then definite and an alternate to discharge when so
first conceived, is one of the issues herein.
3. Discussion re Pegler, the Union, and his work
record
The record, as set forth, reflects that Pegler was the active
spokesman at the meeting on the January 18 with Mathis,
the discussion with Mathis on the truck on January 18
concerning the Union, and Mathis' comments re Pegler's
termination to Smith. Smith testified credibly that on the
evening of Pegler's discharge (February 3, 1973) he entered
Mathis' office. Richard Shaw was with Mathis. According
to Smith:
As I entered the office, Richard Shaw was there with
him, and I asked him just what was going on as far as
Bruce being fired.
There was no way I could justify the cause.
He told me he could not speak in front of two of us.
He could speak to one of us at a time. So he asked
Richard to leave.
I told him I thought it was pretty damned rotten
what he had done to Bruce after all the work and time
we had put in on the routes. I could see no rhyme nor
reason why he picked on Bruce and not me, and I
figured I was next. It was in the middle of the winter.
The only other trade I had was construction, which was
not too active in the middle of the winter.
I was pretty concerned about my own job.
He said he could not talk about it because of the
union thing. He stated, well, it didn't make any
difference because if I tried to say anything to anybody
or use it against him, he would deny it anyway, and he
stated all that was going to be done had been done. He
had talked to Dick Bragg over the phone. They had
discussed what he knew about the employees personal-
ly as far as how he thought they would vote, and they
thought Don Knox would stay with the company;
Richard Shaw 15 would vote for the company; and they
weren't sure about my vote. They were pretty definite
Bruce would vote for the union, and he is the one that got
it. It was just that simple. [Emphasis supplied.]
At the end of our conversation, Richard Shaw came
back in and he stated to us that the whole thing never
would have happened or gotten this far if Richard and
I hadn't backed the union.
Smith further testified:
1-5 Shaw was evidently available but did not testify.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Was there any further mention of Mr. Pegler,
and I'm talking about by Mr. Mathis?
A. He went on quite a bit about the fact of how
bad he felt about having to let Bruce go; that he had
been sick about it all day, and that after this was all
over, he was going to make sure he came down and
squared things off with Bruce personally between the
two of them.
Mathis admitted talking to Smith and that he refused to
talk to Shaw and Smith together. Mathis also testified:
Q. (By Mr. Koslow) In any of these discussions,
did you express to Mr. Shaw that in your opinion he
would be the deciding vote as to whether the union
won in the election?
A. No, I didn't express it; he did. When he said
"rock in a hard place". I knew what he was talking
about. He thought he was probably the deciding vote. I
determined that from his talking, yes.
Mathis denied ever talking to Richard Bragg, vice
president of Respondent, about this matter and Mathis
denied telling Smith that "it was definite Bruce would vote
for the Union and he was the one who got it." Mathis also
denied telling Smith that "the whole thing would not have
happened if he and Richard [Shaw] hadn't backed the
Union." Mathis admitted that he felt bad about Pegler's
termination and that was so because "generally you feel
bad about firing anybody."
Respondent, to establish that Pegler's work was unsatis-
factory, relies first on Mathis' testimony that about mid-
December he found route cards were all over Pegler's truck
and that Pegler had not dated his cards nor put check dates
into his daily reminder hook.16
Mathis testified credibly that it took several hours to get
the route back together, the reminder book straightened
out, and the cards in order. Pegler admits that this
occurred but contends that it resulted from the exceedingly
cold weather which had occurred. Respondent agrees there
was an unusual cold spell for a week commencing about
December 5, 1972, but asserts the weather was near normal
thereafter. Pegler said it was not possible for him to
perform the work and keep up the records at the same time
because of both cold weather conditions and road
problems resulting therefrom. The cold weather had the
effect of causing people to burn much more gas and hence
to he either "out" or "low" on gas. Accordingly, more
deliveries were necessary, some of which could well be
inconvenient. Pegler was assisted almost full time during
December and January by George McCall. Pegler's route
had been run by Mathis in prior years. There were about
590 to 600 customers on Pegler's route in November 1972
to January 31, 1973. Pegler contended two men were
needed to run the route and that no one man could do so.
Pegler admittedly was a new man without prior experi-
ence . 17 Pegler attributed a number of factors as reasons for
his performance, including lack of experience, lack of
knowledge, or familiarity with the product he was handling
and lack of knowledge of the appliances the gas would be
servicing.
A comparison was made between Pegler and Smith as to
the conduct of their respective routes; Smith was running a
route at a lower elevation which presumably would not be
quite as cold as the route Pegler ran and probably not have
as much snow or ice-admittedly these are not all the
factors involved. Smith also had about 590 accounts so that
the number of customers on his route and Pegler's was
comparable, although other factors may not have been. It
was admitted that at whatever time Respondent decided to
terminate Pegler, it did not have the complete study of the
work record of Pegler and Smith which it subsequently
introduced into the record. There is no doubt that Mathis
was aware that Pegler was behind in his work. Smith
testified that he also had been behind to the extent of some
16 days. The record, without the statistics, still reflects that
in December 1972 Pegler, even with the help of George
McCall had fallen way behind in his work. Further, he had
not kept his daily reminder book up to date. The record
also reflects that Smith was behind in his work but
apparently not to the same degree. Whether or not Pegler
and Smith were literally comparable, there were received in
evidence certain figures which relate to their respective
routes. These consisted of number of "outs" and also
number of "lows." It appears that "lows" were predicated
either on figures from customers indicating they were
below 30 percent or merely customer statements that they
needed gas which were also treated as "lows." Accordingly,
16 The daily reminder book was a book used to set forth when the
routeman would have to check the customers to see if they were out of or
low on gas Other methods were usable or possible but Mathis had
instructed Pegler to utilize the daily remmdcr system as a way of keeping up
with his route
17 Pegler testified.
Q You were aware someone like George McCall or Mr. Mathis
quite possibly could have done this job without any help at all9
A This winter I doubt it, sir
Q. But they certainly could have done it with the help Mr McCall
was giving you?
A. Yes, sir.
TAHOE VANGAS
the same basis was used for comparing Pegler and Smith.18
This would not necessarily result in accurate reflection of
relative lows but presumably if the same basis were used in
counting "lows," it should not vary so much as to make the
figures unusable. The figures reflect that there were more
"lows" on Pegler's route than Smith's, although Pegler was
aided by McCall. Of course, Pegler's and Smith's routes
were not exactly the same.19 It also appears that during the
period December 4, 1972, to January 30, 1973, Pegler and
McCall both worked Pegler's route. McCall also helped
some on Smith's route in January.
The following chart shows work performed and gallon-
age and by whom on Pegler's and Smith's routes in
December 1971-January
1972-January 1973.
1972 and December
Smith's Route
Dels . Cust. Gals.
Dec. 1971
By Waldo 573 541 91,701
Jan. 1972
By Waldo 564 545 100,381
Dec. 1972
By Smith 686 580 110,300
Jan. 1973
By Smith 452 583 80,600
By McCall 95 15,900
Pegler's Route
Dels. Cust. Gals.
Dec. 1971
By McCall 609 545 98,400
Jan. 1972
By McCall 589 547 93,400
Dec. 1972
By Pegler 361 582 68,000
By McCall 197 37,100
Jan. 1973
By Pegler 334 589 54,700
By McCall 254 46,900 20/
970a
With respect to the matter of "outs" and "lows,"
although the records may not be precise, they reflect that
of the total "outs" of 104 for December and January,
Pegler had 66 and Smith 38; of the total marked "lows" of
362, Pegler had 208 and Smith 154; of those marked under
the heading "low" stating a definite percentage of 30
percent or less, or otherwise definitely indicating low
through specific information other than or in addition to
the word "low," I counted about 232, with approximately
132 under Pegler's name and about 100 under Smith's
name. The foregoing indicates more "lows" under Pegler
than Smith.
It is also evident from an examination of Pegler's daily
reminder book for January--February 1973 that he was
posting ahead only a part of those he should have so
posted. Whether or not the figures decisively establish that
Pegler's work was inadequate, it does appear from them
that Pegler was not performing as well as Smith. Whether
or not the inexperience of Pegler and cold weather would
justify this, it is also evident that Respondent would be
entitled to believe or consider that Pegler's work perform-
ance was not adequate for its purposes, even though he had
admittedly been working very hard.
On the other hand, it appears that Pegler had been given
a raise in November 1972 because he was doing well.
Further, in December Pegler had been told by Mathis that
he was doing well. According to Pegler's credited testimo-
ny, which was not denied, Mathis told him in December:
"Dave Youker, the regional manager, had visited our office
and he wanted to congratulate me on the job I was doing."
Furthermore, at the time of his termination on February
2, 1973, according to Pegler, Mathis told him to come back
's There were first offered a set of figures which appeared to be
incomplete and not sufficiently explainable to be usable These were then
revised and another set of figures presented which were received in
evidence, although concededly not necessarily precise.
19 Also set forth is testimony concerning Wyn Thoma 's route at an
elevation in a different area, as high or higher than Pegler 's route Thoma
testified they have quite a bit more snow than Auburn , that he had 377
customers and that during the winter of 1972-73 he was able to take care of
his customers and do some service work
211 1 note a contention regarding who made the most deliveries to Heather
Glen on Pegler s route in January 1973. Records reflect Pegler delivered
7,500 gallons there to McCall's 3,4000 gallons
Obviously, whatever increased volume there was in 1972-73 over 1971-72
was more than made up for by McCall-in fact he pumped about four times
the increased volume in December and about six times that aboiint in
January Also to he noted, the figures for Pegler and McCall for December
1972 are specifically set forth in Resp Exh 8 while the other data is in resp
Fxh. 6(a) to (d) Record pp 392-420 and 611 619 explain this
970bb DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in August and there would be a job for him 21 Moreover,
Pegler credibly testified, supra, that on January 18 Mathis
had promised him that in any event he would get a good
recommendation.
4. Respondent's defense of a recent acquisition
requiring personnel changes
David Youker, regional manager, testified he had
prepared a chronology of events using his diary for
December 1972 and January 1973 and his expense account
records from December 27, 1972, to January 25, 1973,22 to
refresh his recollection.23 Youker accordingly testified that
on December 4, 1972, he was advised by Vice President
Richard Bragg by phone that Respondent had acquired
Yreka Utility and Dunsmuir Utility from California
Pacific Utility Company and instructed him to travel to
those areas. On December 6, he went there to meet the
employees, etc. At the same time he learned that Dan
Lacy, acting manager and serviceman, did not desire to
stay at Dunsmuir and also that Jess Lambert, the manager
at Yreka, also wished to remain with Cal-Pacific. Lambert,
however, was willing to stay and work for Respondent at
Yreka for from 2 to 6 months, if necessary. "As a matter of
fact, he preferred not to move his family until spring."
Following this, Youker went to get Respondent's Mount
Shasta manager, Robert Stolte, and took him over to
Dunsmuir as Stolte was agreeable to assuming manage-
ment responsibilities there. Youker said he also ascertained
that, while Stolte had a serviceman at Mount Shasta, the
serviceman did not want the service job at Dunsmuir.
According to Youker, after he returned, he called Bragg
to advise him he was going to need a new manager at
Yreka; and, since it was quite a distance from his home
base, would prefer to move one of his existing "strong"
managers there. Youker testified he had one or two
inexperienced people he could move into a branch close to
his home base. Youker said he suggested to Bragg, John
Mathis for the Yreka manager job, and that Bragg agreed
with him. According to Youker, Bragg said "Proceed with
your efforts to persuade John to accept it and take it."
Youker then testified that around December 14 he went
to Auburn to talk to Mathis about the opening at Yreka
and that Mathis was very receptive because his wife had
relatives at Dunsmuir and he had friends in the area. Later,
Youker said he met with Mathis to discuss personnel
matters between Christmas and New Years-on December
27, according to his diary. They talked about the move and
Mathis told him he felt pretty sure he would accept. The
only question, according to Youker, was a salary level to
make the move worthwhile. "His family was receptive, and
the only remaining item was for him to take them up and
look at Yreka."
Youker asked Mathis if he brought in a relatively
inexperienced manager, would he expect any particular
personnel problems. Mathis advised Youker he was having
continuing problems with Willis of the kind Youker was
aware of over the years from both Mathis and prior
manager, Jones. Youker asked Mathis his opinion of the
problems a new inexperienced manager would have with
Willis and Mathis responded that he would have a very
difficult time because Willis resented authority.
Youker stated Mathis also told him about the problems
he was having with Pegler, that although Pegler worked, he
seemed unable to follow proper routing procedures and
keep the route in a businesslike manner. Mathis told
Youker he became concerned about the number of calls on
Pegler's route and, as the "outs" kept increasing, he
checked and found a large number of route cards scattered
around the truck and not recorded for future delivery, and
then took the time to take Pegler into the office to post
these forward so that they would be up to date.
According to Youker, on December 27 he discussed how
soon Mathis could physically move his family and that the
degree of urgency for his actual move "was very flexible"
because Yreka Manager Lambert had indicated he would
stay on as long as necessary. Youker also said he told
Mathis that for a time, at least, "he would probably like
him to spend some time at both locations, because I was
going to have to have some time for him to work with his
replacement."
Youker testified that when he left Auburn on December
27 he had made the decision to replace Pegler and Willis
before he sent in a new manager.
21 Whether or not Mathis did this because he wanted Pegler or because it 27 Youker also discussed this chronology with John Mathis to assist
was a way of easing him out of a job may he arguable Mathis, supra, Mathis.
indicated it was difficult to fire a man
22 Constructed from his diary, no expense record was presented for
December
TAHOE
Youker stated he went to Yreka on December 28 with
Bragg. He told Bragg that if he had flexibility on salary he
felt sure Mathis would take the Yreka position and that
this would create some problems, specifically mentioning
Willis. According to Youker, he also told of the need for a
serviceman at Dunsmuir and Bragg asked if he had
considered Willis for that assignment. Youker testified that
caused him to consider Willis for Dunsmuir.
Youker further said he went to Shasta on January 2,
1973, to talk to Stolle about his serviceman need at
Dunsmuir. Youker referred to Willis, told Stolte they had a
temperament problem with Willis and had reached the
point of deciding to terminate him but if Stolte thought he
could handle him, Youker felt Willis could take care of the
service requirements. Youker described Stolte as a
"strong" manager. According to Youker, Stolte didn't want
to inherit a problem child and had in mind a former
employee, but they could not work out satisfactory terms
with him. Stolte then said he would agree to take Willis.
As for Pegler's replacement, Youker testified he had
been thinking of a young employee in Grass Valley named
Robert Barton. Youker testified:
Mr. Barton had expressed a desire to get into route
sales . He had also expressed a desire to progress to
management . We had been very, very pleased with
Bob's performance, both as a serviceman and as
occasionally working on the route, and I thought this
would serve two purposes, really. At Auburn he would
be able to solve our problem on the route; Mr. Pegler
would be quitting or leaving; and he would also serve
as a strong backup for our manager. [Emphasis
supplied.]
As for a new manager at Auburn, Youker said he had
two people in mind-one being Bill Braham, his assistant
at Pollack Pines. Youker testified:
I was a little reluctant to use Bill, because I had
really other plans for him, but at this point I was kind
of desperate and I kind of felt he would be my choice
for a couple of reasons, one being he was a serviceman
and would be able to function as a working area
manager, be able to fill in in the service department
and help with the gap that would be made when Mr.
Willis was gone.
VANGAS 971
Q. Did Barton also have service expenence?
A. Yes, he had two years of service experience, yes.
Q. Did you talk to any of these people?
A. Yes, I went to Grass Valley on the night of the
9th of January.
Q. Again, is this a date that is reflected in your
expense records and diary?
A. Yes, it is, and I am able to pinpoint it , because it
is the only time during the month of January that I
spent any time with Mr. Belli and I distinctly remember
the events that took place at the meeting.
Youker said they called Barton in and explained they
needed him to replace a man who couldn't handle the
job-somebody who could go in and manage the route and
get it in shape and help the new manager in running the
operation as needed. Youker said Barton was very
receptive.
According to Youker, on January 11 he and Mathis flew
to Redding, California, and went to Dunsmuir and Yreka.
Youker testified he informed Mathis of his conversation
with Barton the previous day. Youker said he told Mathis
he expected to hear from Barton in a day or two either
affirmative or negative. Youker said he also discussed with
Mathis at length the plan to move or offer Willis the move
to Dunsmuir but, if Willis didn't take it, he was through
with Respondent.
Youker then testified, without reference to any records,24
that approximately mid-January, about the 15th, he talked
to Bill Braham in his office at Pollack Pines about the need
for a manager at Auburn and that Bill accepted the job at
that time. Youker said he arranged for him to be free of
duties at Pollack Pines so he could spend time with Mathis
and also meet Barton "around" January 17. Youker
believed Braham and Barton met in Grass Valley at that
time. Youker testified he was sure "Barton's move was
finalized that day." 25
Youker testified his first knowledge of the Union
occurred on January 18 when he was in Tahoe City, about
80 to 85 miles26 from Auburn, and received a phone call
from Mathis. Youker testified:
24 Youkcr testified he had no record of the time.
2', Neither Barton nor Braham testified as to any meeting between them
26 See Rand McNally 1973 Mileage Guide and Maps.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My first knowledge occurred on the 18th of January
when I was in Tahoe City. I received a call from John
Mathis . He stated to me one of his employees had come
in to him and reported the fact that some of the fellows
were talking about a union.
Naturally I was concerned . I am sure , or I felt John
was. I asked him the degree of seriousness and he said
he didn ' t know , but he really didn ' t believe it had
progressed to that point.
He said some of the fellows had indicated they
desired to meet with him and talk over the problems,
and he wanted my opinion as to whether this was
advisable , and I told him I thought it was an excellent
thing to do.
On the following day I talked to John again and he
stated he had had a meeting with the people the previous
evening and they had talked over many things, and he
felt that probably one of the major problems had been
the fact he had failed to be sufficiently complimentary
and had been so involved with the helping of the
workload personally that he had perhaps neglected to
pat the fellows on the back as much as he should have.
[Emphasis supplied.]
He felt at that point that many of the problems had
been resolved at that meeting.
Youker said on January 22 Mathis phoned to advise he
had received a telegram from the Union stating it had been
authorized to represent the employees at Auburn. Youker
told Mathis to call Schneider, company secretary, vice
president and head of industrial relations. Youker, himself,
called Schneider because he was "very, very concerned
about the impact this turn of events would have on all of
the plans we had made regarding all of the people
involved." Youker asked Schneider's advice after detailing
the plans and the people involved.
According to Youker, Schneider asked if there was any
connection or motivation relative to union activity and
Youker told him absolutely not, ". . . The decisions had
been made before I even knew anything about the Union
activities [emphasis supplied]." Schneider then told Youker
to go ahead and take care of his business moves and
proceed as planned.
Youker also testified he had a further conversation with
Mathis resulting from the conversation with Schneider.
Youker said he met with Mathis on January 26 27 and ".. .
I instructed him to do at that time, at that meeting, one was to
plan to terminate Pegler, and secondly, to offer Mr. Willis a
chance for the Dunsmuir job as soon as practical, because
need up there was becoming desperate." [Emphasis
supplied.]
According to Youker, Mathis called on January 31 to
advise that Willis had refused to transfer to Dunsmuir and
he hadn't talked to Pegler yet. Youker then called and told
Stolte, who said he had a salesman who would transfer to
service and also had an application for a salesman job.
Youker's version appears plausible until it is examined in
the light of the record and events as a whole.
5. Youker's affidavit and testimony compared and
also with testimony of other Respondent witnesses
On February 27, 1973, Youker gave an affidavit to an
agent of the Board.28
27 January 26 in transcript Youker's expense record shows a January 25
date Mathis placed the time as January 24 or 25
28 Pertinent part thereof is set forth below
In the middle of December, 1972, 1 was informed that Vangas had
almost closed a transaction to purchase two other facilities at Yreka
and Dunsmuir, California 1 travelled to both places around Dec 20,
1972 and talked to the employees of California Pacific Utilities which
owned both locations At each location, I learned that all employees at
each facility wished to remain in the employ of Vangas, except the
manager at Yreka and the Acting Manager at Dunsmuir who was also
a serviceman Dunsmuir could be integrated into our Mount Shasta,
Ca, location, 5 miles away , and the Mt Shasta manager became
manager at Dunsmuir I needed then a gas serviceman at Dunsmuir
and a manager at Yreka I tried to hire a former serviceman of Vangas
at Redding, Mr Butcher, for the serviceman job at Dunsmuir , but was
unsuccessful I then consulted with R H Bragg , my superior in Fresno,
and told him that I was considering John Mathis for the manager's job
in Yreka and I proposed Aubrey Willis for the serviceman job in
Dunsmuir This was before Christmas, 1972 Before New Year's, 1973,
I discussed the possibility of the move with John Mathis Mathis asked
permission to take his family to Yreka to look at the area prior to
moving, which he did the first week in January, 1973. Around the
middle of January, Mathis informed me that he would like to make the
move to Yreka Before this , I began to make plans, if Mathis took the
Job at Yreka, to transfer Bill Braham , a man I had been training at
Pollack Pines to the Auburn vacancy Braham is a qualified serviceman
as well I did not know whether Willis would accept the transfer, if
offered, but, at any rate, based on my thinking regarding Willis of the
past year, I felt that we had no more use for him at Auburn. After
Mathis had made his decision to move, I discussed Willis' problems
with Bob Stolte , our Mt Shasta manager, and Stolte agreed to accept
Willis because he desperately needed a qualified serviceman I then
told Mathis to contact Willis about moving to Dunsniuir, and that if
Willis refused he should be terminated
TAHOE VANGAS 973
An examination of the affidavit, compared with the
testimony of Youker, shows numerous discrepancies which
will be analyzed hereafter. Respondent contends in essence
that the affidavit is approximately 2 weeks later in referring
to events than the actual events as established by Youker's
diary and expense record. While in some instances a 2-
week time differential could possibly explain the time
variances as testified to by Youker, this does not apply to
the affidavit in its entirety. On the contrary, in instances
the affidavit sets forth times 5 days later, the same time and
2 weeks prior to those testified to by Youker, as well as
other variances and discrepancies post. On cross-examina-
tion by the General Counsel with respect to certain
variances between Youker's testimony and the affidavit,
Youker asserted he had informed the Board agent from
memory, did not have his diary, that the examiner would
not let him consult Schneider who was there, and that the
examiner told him approximate times would suffice.29
Before considering the affidavit and the testimony of
Youker in detail, it may be well to consider some of the
testimony of other witnesses for Respondent.
Stolte testified that he relied on the expense account
record of Youker to place dates concerning discussions
with Youker. According to Stolte, the first part of January
1973, he discussed with Youker his need for a serviceman to
At the time around the middle of January when Mathis accepted
the Yreka Job, Mathis and I became concerned over the route salesman
job at Auburn occupied by Bruce Pegler, who had been doing a below
par job. Mathis had informed me during December, 1972, that Pegler
had not been performing up to par and that he had not been
conforming to our normal routing practices Mathis ventured the
opinion that as he, a former route salesman, had been helping Pegler
with his route, after he left and Braham , who was not a route salesman
assumed the managership , Pegler's position would be vulnerable and
that we would lose customers . We made the decision , based on these
factors, that Pegler should be terminated . A route salesman at Grass
Valley, Bob Barton , had previously expressed an interest in moving up
to a management capacity, and Barton was limited in his opportunity
at Grass Valley because Grass Valley, while being similar to size in
Auburn, had a manager , Louis Belli and an assistant , Carl Baker The
Auburn situation provided an excellent opportunity to move Barton,
an experienced route salesman, into a position where he could receive
training for a management position , and give added strength to the
entire operation as he could replace Pegler. Around the 15th of
January, 1973, 1 approached Barton about moving down to Auburn
and he accepted the transfer The task of discharging Pegler was left to
Mathis.
Around Feb 1, 1973, Mathis informed me that Willis had not
accepted the transfer to Dunsmuir.. .
On or about January 22, 1973, 1 received notification from Mathis
that he had received a telegram from Teamsters Union Local 150
replace one at Dunsmuir. Youker told Stolte that he had one
at Auburn named Willis and asked if Stolte would accept
him. They then discussed another person, Albert Butcher.
The following day when satisfactory agreement with
Butcher could not be reached, Stolte said to send Willis up.
About 2 weeks thereafter, Stolte called Youker and asked
where Willis was. Stolte said Youker responded he wasn't
quite available yet. Around January 31, 1973, Youker
called to tell Stolte that Willis was not available as he had
refused to transfer.
Mathis said that he had gone over with Youker the
chronology of events Youker had prepared.30 Mathis then
testified in substance as follows. About the middle of
December, Youker offered him the position at Yreka.
Mathis said he told Youker he was interested in it and
asked Youker if he wanted him right away. Youker
demanding recognition at the Auburn branch for purposes of collective
bargaining . I had no knowledge of any type of union activity at
Auburn prior to this At this time, I called E. H Schneider, Vangas
Vice President and Secretary in Fresno and explained to him my
proposed plans regarding the Auburn and Yreka Dunsmuir operations
and the contemplated personnel actions I have mentioned , and what
effect the Union's claim of representation would have Schneider told
me that as long as the plans I had made were already formulated and
had no relationship to union activity that I should proceed as planned
The personnel moves that I have described were done verbally and I
did not set them down in writing
I am well aware of and familiar with affidavit taking by Board agents
and reference to approximate times may often suffice. However , as set forth
above and post, there would still remain a substantial number of
discrepancies as to time and otherwise between the testimony of Youker and
his affidavit , as well as between both Youker s affidavit and testimony and
the testimony of other Respondent witnesses , as well as General Counsel's
witnesses
JO Mathis testified.
Q. He handed you a copy of this sheet, is that correct?
A He didn't hand me a copy He had some copies; he had a copy
on the table; we looked at it. We were just going over the dates.
Q. What did he say in relation-
A. He told me, "Here. John, is my expense account, and by my
expense account and other things, I've been able to verify where you
and I were, conversations we had," and we were able to come up with
this
Q He was showing you his expense account?
A. He also had his expense account.
Q. But what did he tell you about that sheet of paper?
A. That thi, will verify these meetings we had.
Q. What he told you in substance was that these were the dates he
had determined certain events took place, he wanted you to look at
them, right?
A Yes.
Q. You looked at them9 You went over them with him?
A. Sure.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted there was no hurry and he'd have plenty of time to
sell his home and move . Mathis testified that the matter
sounded pretty good because his wife 's brother lived in
Dunsmuir and they had friends nearby. Mathis said that
the next time he talked to Youker was in Auburn after
Christmas or the last part of December. Youker asked if he
was really interested and Mathis made it apparent that he
was. According to Mathis , Youker asked about what kind
of personnel problems there would be and he told Youker
"we had one definite problem, two really." Mathis said he
was sure Willis would literally eat up the new manager and
later in his testimony stated he told Youker he didn't think
Bruce (Pegler) could make it with the new manager and
doubted if he could even make it with him . Mathis testified
Youker told him "That he would make the decision. He
was going to have to look into it a little more. He would get
back to me." [Emphasis supplied.]
Mathis said he went to Yreka on January 11 with Youker
following a phone call from Youker about January 5 or 6,
although Mathis said he had no way of fixing the date.
Mathis said Youker asked about his opinion about the
possibility of transferring Willis to Dunsmuir and that he
told Youker he thought it would be a good idea as long as
he (Willis) wasn' t in Yreka . As for Pegler, Mathis testified:
"With Pegler , he decided, `You are just going to have to
terminate Pegler .' " Youker told Mathis he was going to
Grass Valley to contact the manager there about Bob
Barton.
Referring to January 11, Mathis said he was pretty sure
he was going to Yreka at that time. During the trip to Yreka,
it was decided that they were going to make the offer for
Willis to go to Dunsmuir and they were going to terminate
Pegler. Mathis testified as follows: "We were going to
terminate Pegler definitely . Bob Barton was coming over.
He had accepted He would be coming over later on to start
looking for a place to live ." [Emphasis supplied.]31
Mathis said he looked things over when he was in Yreka.
His wife was to meet him , they were to go on to Yreka and
he was to show her the area . However , he returned about
30 minutes after he got to Dunsmuir because the
"babysitter informed him that both girls were ill." Mathis
and his wife also became ill and he was off work for 3 days
until Wednesday afternoon, January 17, at 3 p .m. Mathis
testified he ascertained around this period of time that the
new manager was going to come over and Braham was sent
over, but Mathis did not say when Braham came over.
Mathis testified that on the evening of January 17
Richard Shaw asked him "Do you know about the Union
activities?" Mathis continued that he was floored, he had
no idea there were any union activities at all. Mathis in
essence confirmed Youker's testimony about his calling
Youker on the 18th to advise him of the union activities
that Shaw had told him about the evening of the 17th.
Mathis testified "I told him [Youker] what Shaw told me,
that there were some union activities. Dave was concerned.
He wanted to know if I thought there was going to be any
problem and I told him I really didn't think so, that the
men wanted to talk to me sometime later." [Emphasis
supplied.] Mathis testified: "He said that would be all
right. He didn't see any problem in that." Mathis was also
asked as to this discussion with Youker on January 18: "Q.
Did you explain to Mr. Youker that Mr. Willis was the
main employee involved? A. I'm sure I probably did."
Mathis was then asked whether there were any conversa-
tions relating to Willis or Pegler between that time
(referring evidently to January 18 or 19) and the end of the
month. Mathis said they did converse at the end of the
month of January. Mathis was asked: "Q. Can you tell me
approximately when? A. I'd say around the 24th or 25th of
January." Mathis added that this was face to face.
According to Mathis, Youker asked if Mathis wanted him
to be present when he made the offer to Willis and
terminated Pegler. Mathis told Youker he'd take care of it.
In an affidavit Mathis gave to an examiner of the Board
on February 27, 1973, Mathis stated "On January 31, 1973,
1 made the decision to discharge Pegler; toward the end of
January 1971 I had informed Youker that I would be letting
Pegler go at the end of the month and Youker stated that he
would begin making arrangements to get another route
salesman in to replace Pegler. On February 2nd, 1973, I
called Pegler into my office at about 4 p.m." [Emphasis
supplied.]
Youker's affidavit places his first knowledge of the new
acquisitions as the middle of December, while his testimo-
ny sets the date as December 4. His affidavit sets his first
trip to Yreka and Dunsmuir as December 20, while his
testimony places it as December 6. The affidavit accord-
ingly places these events about 2 weeks later than his
testimony.
In the affidavit Youker says (apparently about Decem-
ber 20) he tried to hire a former serviceman of Vangas,
Butcher, for Dunsmuir but was unsuccessful. In his
testimony Youker places the time of his attempt to hire
Butcher as after January 2, 1973, and after first mentioning
Willis to Stolte, who was reluctant about Willis. This
reverses the sequence of events as between affidavit and
testimony so that the discussion as to Butcher occurs 2
weeks later in testimony than in the affidavit. In the
affidavit Youker stated after he was unsuccessful in
arranging to get Butcher, he called Bragg and told him he
was considering John Mathis for the manager job in Yreka
and "I proposed Aubrey Willis for the serviceman job in
Dunsmuir. This was before Christmas 1972." In his
testimony Youker places his conversation with Bragg with
respect to Mathis becoming manager at Yreka as of about
December 6 (2 weeks earlier than the affidavit) but does
31 Mathis did not testify as to when Barton came over.
TAHOE VANGAS
not refer to any conversation with Bragg concerning Willis
until December 28. Also, instead of Youker suggesting
Willis for Dunsmuir (as set forth in the affidavit), Youker
testified "Bragg asked me offhand, he said, `Do you think
or have you considered Willis for that assignment?' Up to
this point I really hadn't. " [Emphasis supplied.]
Youker states in his affidavit that after Mathis made his
decision to move (which the affidavit places as about the
middle of January), Youker discussed Willis' problem with
Stolte, who was anxious to get a serviceman. Youker
testified he talked to Stolte about Willis early in January,
about January 2 to 4.
Youker's affidavit then states that about the middle of
January, when Mathis accepted the Yreka job, Youker
became concerned over the route salesman job occupied by
Pegler. Youker said Mathis had told him in December that
Pegler was not performing up to par, etc. In his affidavit
Youker said Bob Barton at Grass Valley had previously
expressed an interest in moving up to a management
position. According to Youker's affidavit, this provided
"an excellent opportunity to move Barton, an experienced
route salesman into a position where he could receive
training for a management position ...." [Emphasis
supplied.] The affidavit further states that on January 15
Youker approached Barton about moving to Auburn and
Barton accepted the transfer. In his testimony Youker
stated he spoke to Barton in Grass Valley Manager Belli's
office on January 10, a date Youker testified was estab-
lished by his diary (and expense account) as the only day
he was in Grass Valley in January 1973. Youker said
Barton was very receptive but said naturally he would have to
sell it to his wife, although he didn't expect any problem.
Youker testified the following day, January 11, he and
Mathis went to Yreka. Youker testified he told Mathis that
Barton sounded very favorable and "I expected to hear
from him in a day or two either affirmative or negative
regarding his plan to move." Mathis, as set forth, testified
that during the Yreka trip Youker stated "Bob Barton is
coming over. He had accepted ...." [Emphasis supplied.]
In his testimony Youker said "Mr. Barton had expressed
a desire to get into route sales . . . . We had been very,
very pleased with Bob's performance, both as a serviceman
and as occasionally working on the route." Barton testified
as to his work experience:
Q. You had done a lot of route salesman work?
A. Not a lot, but I have worked on truckv in the
wintertime when they needed help on routes.
Q. How much? A lot?
32 Significantly, Mathis executed this affidavit on February 27 shortly
after the events in question.
975
A. Not an awful lot.
Q. So you really would consider yourself an
experienced serviceman?
A. Yes.
Q. How about route man?
A. Route salesman, not highly experienced, no, but I
had enough experience to where I could take over a
route.
Q. You knew the basics?
A. Yes. [Emphasis supplied.]
Barton also said he was an experienced serviceman.
Barton first testified he was approached by and offered a
position as route salesman by Youker on January 10.
When asked how he fixed that date, he was unable to say
and subsequently conceded he wasn't sure of the date.
Barton said it could have been January 8, 9, or possibly 11
or 12, but not a week later than the 10th. Barton also said
that within a week or week and a half thereafter he went
over to Auburn. This latter appears to be contradicted by
Willis, discussed post, who testified Barton came to see him
about a house after January 25. It also conflicts with
Mathis' affidavit post wherein Mathis stated: ". . . toward
the end of January 1973 I had informed Youker I would be
letting Pegler go at the end of the month and Youker stated
he would begin making arrangements to get another route
salesman to replace Pegler.... 1132 [Emphasis supplied]
As set forth, in the affidavit Youker states he suggested to
Bragg before Christmas 1972 that Willis might go to
Dunsmuir. At this point there is no mention of Pegler. The
affidavit also sets forth that around the middle of January,
when Mathis accepted the Yreka job, Youker and Mathis
became concerned about Pegler's below par work on his route.
It also asserted that Mathis had informed Youker during
December 1972 that Pegler was not performing up to par.
It further states "We made the decision . . . that Pegler
should be terminated." [Emphasis supplied.] This is to be
contrasted with Youker's testimony where he asserts that
when he left Auburn on December 27, "1 had made the
decision to replace Mr. Pegler and Mr. Willis before I
moved in a new manager." [Emphasis supplied.] Obvious-
ly, the affidavit and his testimony conflict both as to when
Pegler was allegedly first considered for termination and as
to whether Pegler and Willis were considered together at
the same time or separately. Further, there is the testimony,
supra, by Mathis that on December 27 Youker told him he
would make the decision (re Pegler). "He was going to
have to look into it a little more. He would get back to
me." According to Mathis, this was followed by Youker's
telling him about January 6 "You are going to have to
terminate Pegler." Adding to the conflict is Youker's
testimony that on January 25 or 26 ". . . I instructed him
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Mathis] to do at that time, at that meeting . . . to plan to
terminate Pegler.. . ." Finally, in addition to all the
foregoing conflicts re Pegler, Mathis gave an affidavit on
February 27, 1972, in which he said "On January 31, 1973,
I made the decision to discharge Pegler,• towards the end of
January, 1973, 1 had informed Youker that I would be letting
Pegler go at the end of the month, and Youker stated he would
begin making arrangements to get another route salesman in
to replace Pegler. " [Emphasis supplied.]
In both his affidavit and testimony Youker acknowl-
edged receiving on January 22, 1973, advice from Mathis
of the Union's telegram of January 22 requesting recogni-
tion. Youker in his affidavit asserted he had no knowledge
of any type of union activity at Auburn prior to this,
although in his testimony, supra, Youker admits discussing
on January 18 by phone and again on the 19th the union
meeting scheduled for Willis' house which took place there
on the 19th; Youker testified he didn't consider this to be
union activity.
As set forth, in his affidavit Youker states that after
Mathis made the decision to move to Yreka about nud-
January, Youker discussed Willis' problems with Stolte,
who agreed to accept Willis. Youker testified, supra, that he
went to Dunsmuir on January 2 to discuss the serviceman
need and suggested Willis to Stolte. Stolte's testimony was
that about January 5 he agreed to accept Willis and then
called Youker about 2 weeks later to ascertain where Willis
was. Further, in his affidavit Youker says in March 1972 he
and Mathis decided to transfer Willis when the opportuni-
ty arose and, as set forth, that he proposed to Vice President
Bragg transferring Willis to Dunsmuir before Christmas
1972, whereas in his testimony he asserts this was
December 28, 1972, and that Bragg suggested to him
transferring Willis to Dunsmuir.
Youker and the Respondent sought to explain all the
variances above between the affidavit and testimony on
the basis that without his diary Youker couldn't set the
time right and the time involved was about 2 weeks later
than the times set forth in the affidavit.
However, the record clearly doesn't support this and
neither does it answer the variances between Youker's
testimony and Barton's as to $arton's experience as a route
salesman . Nor does Youker's affidavit agree with Youker's
testimony as to the termination of Pegler, nor do either
agree with Mathis' testimony, nor with Mathis' affidavit,
supra.
Further, in his affidavit Youker stated "before New
Year's 1973, 1 discussed the possibility of the move with
John Mathis. Mathis asked permission to take his family to
Yreka to look at the area prior to moving which he did the
first week in January 1973." [Emphasis supplied.] From
Mathis' testimony it appears that he planned to meet his
wife in Dunsmuir on January 12 (which he did) and go to
Yreka the next day but they returned to Auburn about 30
minutes after Mathis got to Dunsmuir because their children
were ill.
Nor was Youker corroborated by Braham, who did
testify but not as to when he was offered a position as
manager at Auburn, nor by Bragg, who did not testify, nor
by Schneider, who did not testify but was at the hearing,
nor by Belli. Also to be considered, of course, is the
contrary evidence of the General Counsel' s witnesses
Pegler, Willis, and Smith, supra.
I have also noted, supra, that Youker testified on cross-
examination that he did not consider Mathis' message to
him concerning the employees' meeting at Willis' home to
be union activity because a union representative was not
involved. The General Counsel suggests this was unbeliev-
able. To those familiar with the NLRB this may seem
absurd. It is possible an outsider might so view it, although
such seems unlikely. Assuming arguendo, Youker really
believed there had been no " union activities" until January
22, then he could conceivably have responded to Schneider
that no move was contemplated or taken because of union
activities even though they might have in fact been directed
to Willis and Pegler because of their "union activities" or
attitudes.
Bearing on the issue herein is the fact that neither
Youker nor Mathis mentioned any visits to Auburn by
Youker on January 18 and 19. From the testimony, Mathis
evidently talked by phone to Youker on the morning of the
18th. On the 19th, there was admittedly a conversation.
The apparent implication from the record is that such was
by phone, although not specifically so stated. It would also
appear from the testimony that Youker and Mathis did not
meet again until January 25. However, Youker's diary and
January expense account indicates, as set -forth, that on
January 18 Youker came to Auburn from Tahoe City, a
distance of 80 to 85 miles, to see Mathis and also indicates
he had dinner in Auburn with Mathis, who had met with the
men late that afternoon. Then, on January 19 Youker had
breakfast and lunch in Auburn. What was Youker doing
there? Why was there no testimony as to this? His diary
and expense account further indicate Youker was not on
travel status on January 20, 21, and 22. Respondent also
sought to establish that January 10 was the only day
Youker was in Grass Valley to see Manager Belli and
Barton because he so testified based on reliance of his
records. First, as already shown, the records, assuming
arguendo their accuracy, show only dates and places, and
there is great conflict between Youker's testimony and his
affidavit, and with testimony of other witnesses. Second, in
addition to these inconsistencies is the fact that Grass
Valley is only 24 miles north of Auburn, and Pollack Pines
is only about 41 miles south of Auburn.33 What was there
to prevent Youker from going to Grass Valley at numerous
times, including January 19 to 22, etc. As set forth, Barton
first testified he was approached January 10, then testified
he wasn't sure of the date except that it wasn't more than a
week later, and other evidence, supra and post, indicates it
was over 2 weeks later.
6. Summary analysis of the conflicts between
Youker's affidavit and his testimony, and both
with that of other Respondent witnesses
Following are certain specified variances and inconsis-
tencies (as well as consistencies) between Youker's affidav-
it and testimony, and also certain inconsistencies between
33 See Rand McNally 1973 Mileage and Map Guide
TAHOE VANGAS
his affidavit or testimony and that of other witnesses for
Respondent.
There is not reflected a consistent time sequence of
events set forth in Youker's affidavit as against his
testimony except possibly in a few instances. On the
contrary, there are inconsistencies of time sequences and
other variances between affidavit and testimony which
cannot be explained by reference to diary and expense
record as asserted by Youker. Events are placed in the
affidavit not only 2 weeks later but also before the diary-
expense account record time (as amplified by Youker's
testimony), at less than 2 weeks later, and at or about the
same time. For example, Youker in his affidavit asserts he
tried to hire Albert Butcher as a serviceman at Dunsmuir
evidently around December 20. In testimony Youker placed
the time as about January 4, 1973. In testimony Youker
then states Stolte agreed to hire Willis about January 5. In
the affidavit Youker places the discussion of Stolte
accepting Willis as of after Mathis decided to accept Yreka
in mid-January. This places the relationship of Butcher's
nonavailability and Stolte's willingness to accept Willis not
together in time but almost a month apart-from Decem-
ber 20 to mid-January in the affidavit. According to the
affidavit, Youker and Mathis decided to terminate Pegler
after Mathis accepted the Yreka job around the middle of
January. Youker testified he decided to replace Pegler and
Willis on December 27. He also testified he thought Mathis
would accept the Yreka position on December 27 and that
Mathis had indicated almost certainly prior to January 11
he would take the position or he wouldn't have gone to
Yreka. Also, according to the affidavit, on January 15
Youker approached Barton regarding Auburn, while his
testimony sets the time as January 10, a variance of 5 days.
The following is a summary of numerous substantial
variances (and in one instance consistency):
1. The affidavit states that in the middle of December
1972 Respondent was informed of a new acquisition.
Youker's testimony places the time as about December 4.
2. According to the affidavit, Youker went to Dun-
smuir December 20. Youker's testimony is that he went
there December 6.
3. The affidavit indicates that about December 20
Youker tried to hire a man named Butcher for a service job
at Dunsmuir. His testimony is that about January 4, 1973,
Youker tried to hire Butcher.
4. According to the affidavit, after Youker didn't hire
Butcher about December 20, Youker consulted his superi-
or, Bragg, before Christmas 1972 and proposed Willis for
serviceman in Dunsmuir. Youker testified Bragg proposed
Willis as serviceman at Dunsmuir about December 28, 1972.
5. Youker's affidavit states that Mathis took his family
to Yreka the first week in January. Mathis testified his wife
met him in Dunsmuir January 12 and within a half hour
thereafter returned to Auburn.
6. In the affidavit Youker says that about the middle of
January, Mathis informed him he would like to move to
Yreka. Youker's testimony is, supra, that prior to the trip to
Yreka on January 11, Mathis had indicated to "an almost
certainty he would take the promotion."
J4 1 am aware that this subject may have been discussed more than once,
first as to intent to terminate and second as to execution thereof However,
977
7. According to Youker's affidavit, after Mathis made
his decision to move to Yreka, Youker discussed Willis'
problem with Stolte, who agreed to accept Willis about
mid-January. Youker testified that Stolte agreed to take
Willis about January 5. Stolte (who had also gone over the
time sequence with Youker prior to testifying) said about
January 5 he agreed to accept Willis and sought 2 weeks
later to find out where he was.
8. The affidavit states Youker told Mathis apparently
about mid-January to contact Willis about moving to
Dunsmuir and if he refused he should be terminated. Willis
actually was so told by Mathis on January 31. Youker
explains this as necessary because he needed Willis as a
serviceman until then.
9. According to Youker's affidavit, about the middle of
January, when Mathis accepted Yreka, they became
concerned over Pegler's performance and they made the
decision he should be terminated. Youker testified he
decided December 27 to replace Pegler and Willis after
discussion with Mathis. Mathis testified that on December
27 Youker told Mathis he (Youker) would make the
decision re Pegler. He was going to look into it more.
Mathis at another point said he decided to terminate
Pegler the end of December. Mathis further testified about
January 6 Youker said that Mathis was going to have to
terminate Pegler. Youker further testified, supra, that on
January 25 or 26 he instructed Mathis "to plan to
terminate Pegler." Mathis testified Youker on January 24
or 25 asked if Mathis wanted Youker present when he
dealt with Willis and Pegler.34 Finally, according to
Mathis' affidavit, he decided on January 31, 1973, to
terminate Pegler.
10. In the affidavit Youker says in March 1972 he and
Mathis decided to transfer Willis when the opportunity
arose. Then in his affidavit he asserts he proposed to Bragg
to transfer Willis to Dunsmuir before Christmas 1972.
Youker testified that Bragg suggested sending Willis to
Dunsmuir about December 28, 1972, and after reflection
Youker thought it was a good idea.
11. Youker in the affidavit refers to Barton as an
"experienced route man." Youker testified Barton was
"occasionally working on the route." [Emphasis supplied.]
Barton testified, as set forth, that he had done a lot of route
salesman work and was "not highly experienced but I had
enough experience to where I could take over a route."
Mathis also described Barton as an experienced route man.
12. Youker's affidavit (as set forth) states around
January 15 he approached Barton. His testimony places
the time as around January 10. Youker testified he told
Mathis on the trip to Yreka on January 11 he expected to
hear from Barton in a day or so. Mathis testified Youker
said Barton had accepted. Although Barton first asserted
the time was around January 10, Barton then admitted he
had no reason for so placing the date and was unable to fix
a precise time. As for Barton's testimony, although he
asserted he hadn't talked anyone about the date of January
10, it would appear odd to select that day if he had not
discussed it when he admittedly had no basis for picking a
specific date. In addition, Barton stated he went over to
this does not explain all of the variances as to time, when and by whom the
decision was definitely made to terminate Pegler.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auburn to look for a house a week or 10 days after this
time. Willis, whose house35 was looked at by Barton,
places the time as nearer to January 31 than January 19,
and Mathis' affidavit, supra, states toward the end of
January Youker said he would begin making arrangements
to get another route salesman. Although Barton voted in
the NLRB election, Barton asserted he never discussed the
Union or the union election with any employees but did
vote in it. This may be contrasted with his admission that
prior to transferring to Auburn he called Youker allegedly
to ascertain whether his transfer was related to umon
activity at Auburn. Further, Barton was directly contradic-
ted as to this by Smith's credited testimony that he and
Shaw had a conversation with Barton in which Barton said
"he had been brought in to break up the vote before it ever
had a chance to get to an election. . . ." Also, according
to Smith, Barton suggested if Smith and Shaw would tell
him how they intended to vote, he would vote the same
way. Further, I was not impressed with Barton's testimony.
He seemed to be both ill at ease and uncertain as if he were
endeavoring to place events at times he thought were
expected but which were not definite in his mind. I am
accordingly not crediting Barton's testimony as to when he
was first approached about a route salesman position by
Youker or when he first went to Auburn to look for a
home.
7. Conclusions as to the discharges of Pegler and
Willis
The real issues are when and why Respondent deter-
mined to terminate Willis and Pegler. Respondent's
defense rests primarily on Youker's testimony, that of
Mathis (and that of Barton) to establish that a decision was
made prior to January 18 to terminate Pegler and Willis.
Part of the defense is predicated on the acquisitions
referred to, a series of events and needs to follow the
transfer of Mathis from Auburn and when the latter
became finalized. The General Counsel's case is based on
the following. First, of course, there is the testimony of
Pegler and Willis, which I credit, 36 on January 18 in
response to a question why Willis was going to be let go,
that Mathis stated Willis had tried the umon thing two or
three times before, that Willis wasn't stupid, that he
"waited until he got a relatively new crew, . . . and waited
until the morale of the employees was low and then played
up the union thing-There is nothing I can do about him. It's
out of my hands completely. Aubrey Willis is going to be let go
as soon as warm weather comes in. " [Emphasis supplfed.137 I
note this occurred in the late afternoon following the
35 Willis owned two houses at the time
36 I credit this testimony first because of my observation of witnesses and
second because , as set forth , for numerous reasons, particularly the
inconsistencies of Youker's affidavit and testimony and inconsistencies of
testimony of Youker with Mathis, Barton , and others , that I am discrediting
Youker in large part and Barton and Mathis in part
37 The union meeting was known by Mathis to be at Willis' home
38 Pegler had been the most active speaker at the meeting with Mathis on
January 18.
39 Mathis said that he did not have occasion to talk to Bragg about such
matters . However , whether or not he normally would talk to Bragg on
matters such as involved here one could expect that such a conversation
might well have occurred. In any case , I am not crediting Mathis for reasons
previously indicated
morning when Mathis first spoke to Youker about the
umon meeting that was to be held at Willis' home.
As for Pegler, there is the testimony of Smith concerning
Mathis' statement to him alone, after Mathis refused to
talk, when both Smith and Richard Shaw were together.
Mathis then stated, according to Smith's credited testimo-
ny, that he had talked to Dick Bragg over the phone and
discussed what he knew about the employees personally as
far as how he thought they would vote, and after
considering two employees he thought would be with the
Company, "They were pretty definite Bruce38 would vote for
the Union and he is the one that got it. It was just that
simple. "39 [Emphasis supplied.] In addition, with respect to
Willis, a number of matters are pertinent; namely, that
Willis was considered an excellent serviceman, that
servicemen were admittedly difficult to obtain and that the
incidents referred to in December 1972 were not, by
themselves, particularly significant matters and did not
differ substantially from conduct Willis had engaged in for
years past. Neither were the incidents that Respondent
otherwise referred to40 except for Willis' attitude and lack
of cooperation on occasion, although even then Willis
admittedly did perform his work; nor did Respondent issue
any written reprimands to Willis . It is probably true that
Willis was not the easiest person to work with, and it is
equally evident that he and Mathis were at odds. I also
note that Youker commented in his affidavit that as far
back as March 1972, at the time of Willis' evaluation, he
and Mathis had decided to transfer Willis out of Auburn.
This, if so, evidently related to the work relationship in
Auburn between Willis and Mathis. It does not manifest a
desire to terminate him.
Further, with respect to Willis and what Respondent
actually intended is that, while admittedly there was an
acquisition at Dunsmuir and the need for a serviceman at
Dunsmuir, the record also indicates that Respondent in
fact had not reached a definite determination as to Willis'
termination until near the time he was terminated. This is
manifested by the conflict between Youker's testimony and
his affidavit and the testimony of Mathis with respect to
Willis, as well as by Pegler's and Smith's testimony that on
January 18 Mathis stated Willis had played up or pushed
the Umon and would go by "warm weather." In fact, Willis
"went" Janus; ry 31 !
According to his affidavit, Youker was ready to do
something about Willis by way of transfer in March 1972
and Youker also suggested to Bragg the transfer of Willis
to Dunsmuir. However, Youker testified it was Bragg who
suggested transferring Willis to Dunsmuir. Previously set
40 The best indication of Respondent's view of the other "incidents" is its
responses to them over the years as indicated by no written reprimands,
retention of Willis and its grading and evaluation of Willis as on or above
Vangas standards, except for "personality and cooperation ." In fact, on a
total of 10 items Willis was rated below Vangas standard on just one
item-personality and cooperation ; was "on Vangas standard" (meaning
better than that generally regarded as satisfactory by Respondent's
competitors) on three items, above Vangas standard on five items; and
Exceptional Performance on one item-labor income. Willis received an
overall rating of "on Vangas Standard ." The grades numbered from 0 to 5
were unacceptable performance-0; below Vangas standard-2; on
Vangas standard-3; above Vangas standard-4, and exceptional perform-
ance-5.
TAHOE VANGAS
forth are the conflicts between Youker's affidavit and
testimony as to when Bragg and Youker discussed
transferring Willis to Dunsmuir. Also set forth is the
conflict between Youker's affidavit with his testimony and
that of Stolte as to when it was agreed to request Willis to
transfer. Further, as set forth at one point in Youker's
affidavit, Willis and Pegler are stated to have been
separately considered, with Willis' transfer allegedly con-
sidered in December and Pegler's termination in mid-
January. Youker testified he "decided to replace Pegler
and Willis on December 27." Mathis testified at one point
he made the decision to terminate Pegler near the end of
December 1972.41 To additionally compound this, as set
forth, Mathis testified Youker told him after the discussion
about Willis and Pegler on December 27, Youker would
make the decision; he was going to look into it a little more
and would get back to him. Mathis also testified Youker
told Mathis on January 5 or 6 he would have to terminate
Pegler. Youker testified that on January 25 or 26 he was in
Auburn and instructed Mathis to plan to terminate Pegler
and offer Willis the transfer. Mathis testified as to this that
Youker asked if Mathis wanted Youker present and
Mathis said he would handle it. At another point, Mathis
said Youker phoned him late in January to offer Willis the
transfer. Finally, Mathis in his affidavit states he decided to
terminate Pegler on January 31, 1973, and that near the end
of January, after he informed Youker he would be letting
Pegler go at the end of the month, Youker stated he would
begin making arrangements to get another route salesman.
From the foregoing, it is quite evident that Respondent,
through Youker, was trying to support or justify certain
actions which in all probability did not occur until later,
after the Union entered the picture.
While Pegler was perhaps not performing the work as
might have been desired by Respondent, except for one
alleged discussion'with Mathis about his work which was
placed as occurring at different times , supra, there was
neither further discussion nor detailed instruction thereof
prior to Pegler's termination .42 While Youker testified that
he decided on December 27 to replace Pegler and Willis
after Mathis told him Pegler wasn't performing properly, in
his affidavit Youker doesn't refer to Pegler entering into
consideration for termination until about mid-January
after he had purportedly arranged to bung in Barton. This
was also sometime after the Willis transfer to Dunsmuir
matter had purportedly arisen. Both Youker's affidavit and
testimony and Mathis' testimony conflict with Mathis'
affidavit that he decided to terminate Pegler on January 31,
1973, without any reference to Youker at all other than that
Youker was informed of Mathis' intention re Pegler near
the end of January and Youker then said he was going to
find a route salesman to replace Pegler. Also set forth,
supra, are the numerous conflicts in affidavits and
testimony of Youker and Mathis relating to the matter of
Pegler's termination.
Neither is it denied that Mathis told Pegler that he
should come back in the summer for a job and that Mathis
41 The question was in terms of "you" and Mathis responded to it
affirmatively. Possibly by "you" he may have understood "Respondent "
42 The records introduced at the hearing were all prepared after Pegler
was terminated.
43 1 have also noted Youker's testimony that he believed Barton and
979
indicated to others he was very upset about having to
terminate Pegler, that Pegler had been given a raise in
November, that Mathis had complimented Pegler on his
work in December, and that there were no written
reprimands or warnings ever given to Pegler. Further, with
respect to Pegler, is Respondent's contention, as testified to
by Youker, that Youker saw Barton on January 10,
coupled with Barton's testimony that he saw Youker on the
10th, then followed by Barton's admission that he didn't
know the precise date.43 In addition, there is Willis'
testimony that Barton didn't arrive at his house until after
January 25144 and also Mathis' affidavit which asserts
that at the end of January Youker proceeded to seek a
replacement for Pegler . In addition, Barton manifested
evident uneasiness in testifying , as set forth supra where I
have discredited his testimony for reasons stated. Further,
as pointed out, the mere fact that Youker was in Grass
Valley on January 10 is not conclusive as to his ability to
have been at Grass Valley at numerous times. On the
contrary, such would have been very easy. There is also
unexplained what Youker was doing in Auburn on the
evening of January 18 and morning of the 19th immediate-
ly following the phone call from Mathis on the morning of
the 18th.
Further bearing on Respondent's contention that the
decisions re termination of Pegler and Willis had been
made prior to January 18 are the following: Besides the
conflicts in Youker's testimony and affidavit and the
testimony and affidavit of .Mathis, a question arises with
respect to Youker's testimony that on December 27 he'd
already decided to terminate Pegler and Willis. Assuming
the difficulty in obtaining a good serviceman and the
evident need for one at Dunsmuir, how could Youker be
sure that he would be able to replace Willis in any case,
since admittedly, as of December 27, Youker only had in
mind two possibilities for manager at Auburn whenever
the need therefor became definite. One of these was
Braham, who happened to be a serviceman; but as of
December 27, there was no assurance that Braham would
take the job. Further, on December 27 Youker had not
definitely decided to whom he was going to give or offer
the manager position at Auburn when Mathis left.
Youker's purported reason for having to move Willis was
that a new, inexperienced manager probably couldn't
handle Willis . Additionally , Mathis was not an experienced
manager at the time he took over and Respondent was
aware of the problems with Willis at that time from prior
manager, Jones. Moreover, Youker appears to be a person
who can, if the occasion arises , make it very clear to an
employee concerning his relations with a local manager
what is required if that employee is to remain.
Besides Respondent 's contention that it decided to
terminate Willis as of December 27, 1972, which as clearly
shown is not substantiated , it is evident that other than
seeking to transfer Willis to Dunsmuir, no firm definitive
decision as to Willis is established by Respondent prior to
knowledge by Respondent of union activity. The same is
Braham met in Grass valley on January 17 and he could safely say Barton's
move was finalized that day Obviously, Youker had no precise knowledge
thereof and I do not credit his testimony Neither Barton nor Braham
testified as to any such meeting
14 Willis testified this was nearer to January 31 than to January 19
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
true of Pegler. Respondent's testimony places its alleged
decisions as to Willis at numerous times as set forth above:
December 20-Youker suggested Willis re Dunsmuir from
Youker affidavit; December 27-Youker by his testimony
to replace Willis and Pegler; December 28-Bragg suggest-
ed Willis to Youker re Dunsmuir from Youker testimony;
January 5-Youker's and Stolte's testimony re Stolte
accepting Willis for Dunsmuir; January 15-Youker
affidavit re Stolte accepting Willis for Dunsmuir; January
25-26-Mathis and Youker testimony re Youker instruct-
ing Mathis to offer Dunsmuir to Willis. The record also
places various times re decisions as to Pegler's termination:
Youker testimony, he decided December 27; Mathis
testimony, he decided December 27; Mathis testimony, on
December 27 Youker was going to look into it and would
get back to him; Mathis testimony, January 5 or 6 Youker
told Mathis he would have to terminate Pegler; Youker
and Mathis testimony re Youker instructed Mathis on
January 25-26 to plan to terminate Pegler; Mathis
affidavit that he decided January 31, 1973, to terminate
Pegler, had so informed Youker near the end of January
and Youker had then said he would begin arrangements to
get another route salesman.
Finally, it also reflects as to Mathis' transfer and
replacement, various questions and conclusions. Youker
testified he was quite sure of Mathis taking the position
December 27. His affidavit states Mathis took his wife to
Yreka the first week in January to check out the area. In
fact, she evidently went to Dunsmuir January 12 but
returned immediately. According to Willis' undenied
testimony, which I credit, Mathis told him January 6 he
wouldn't go into the snow country; i.e., Yreka. Youker also
testified, supra, that Mathis had indicated almost certainly
prior to January 11 he would take the Yreka position.
Mathis testified that as of the time of the trip on January
I I "I was pretty sure I was going to go." However, Mathis
did not testify when it became definite that he was going.
Moreover, Pegler, whom I credit, testified that on January
18 at the meeting, Mathis stated if the Union came he
couldn't stay in Auburn. Pegler also credibly testified that
on the morning of January 18 Mathis said that Dave
Youker had offered him the managerial position in Yreka
"and he had been putting him off on it until then. That is
[if J we went union he would take the position." Mathis did
not specifically deny this but testified Pegler knew Mathis
.,was moving" to Yreka and said he had friends near there,
etc. As for Braham's acceptance of the Auburn post,
Youker placed the time as about the middle of January.
Youker said this was approximate as he had no record of it.
Braham didn't say when he accepted the Auburn post,
although he testified on other matters. Neither did Mathis
refer to this, although he testified extensively. I do not
credit Youker's testimony on this matter for reasons
previously set forth, as well as for lack of corroboration.
Although Respondent endeavored to establish that
Mathis accepted the Yreka position prior to knowledge of
union organization, based on my appraisal of the credibili-
ty of Youker and Mathis, supra, the indefiniteness and
vagueness of the purported time of Mathis' alleged
acceptance, no definite time placed by Mathis himself,
Mathis' statement to Willis on January 6 re not accepting
Yreka because of snow, his remarks to the meeting on
January 18 that if there were a union he wouldn't stay in
Auburn, and his statement to Pegler on the 18th that he had
been putting Youker off on Yreka, I conclude that the
decision as to Mathis' definite acceptance of Yreka
probably did not occur until sometime thereafter. In any
case, it does not appear that replacement steps as to Mathis
were actually firmed up until after that date. Youker, the
only person who referred to Braham's acceptance of the
position at Auburn, could only state that it was approxi-
mately the middle of January. I am not crediting this
testimony for reasons previously indicated. Nor have I
credited Barton as to when he allegedly first was instructed
by Youker to come to Auburn. Here again the evidence
points to, and I find, this was sometime after January 18.
In any case, it appears clear and I find, for reasons evinced
supra and post, the definitive decisions to terminate Willis
and Pegler were not made until after Respondent had
knowledge of union activity and organization and that this
activity was a proximate cause of their termination.
From all of the foregoing, it is evident that the
substantial credible evidence, based on the testimony of
Pegler, Smith, and Willis, is that Respondent terminated
both Willis and Pegler because of their union activities.
The union meeting was held at Willis' home and so known
by Mathis. Willis in fact had started the union activities.
Pegler was the most active speaker and questioner of
management at the meeting with Mathis on January 18.
Clearly manifested and found is Respondent's union
animus shown by interrogation and threats, coupled with
the timing thereof immediately following union organiza-
tion. This was accompanied by Mathis' statement that
Willis had played up the union thing and was going to go
by summer. Mathis also told Smith, whom I have credited,
that "they were pretty definite Bruce would vote for the
Union and he is the one that got it ...." Thereafter,
Willis and Pegler were terminated. In addition, the reasons
given by Respondent, although partly plausible to the
extent that it had obtained acquisitions and may have
wanted to transfer Willis to Dunsmuir, are not otherwise
supportable. While Willis may not have been the most
cooperative employee, Respondent kept him for years,
Willis' conduct did not change perceptively and the
incidents in December 1972 were not significantly different
nor of major import. Finally, good servicemen were hard
to obtain. Moreover, as to Pegler, although he may not
have clearly measured up to Respondent's standard, he
was a new employee who had worked hard, had been given
a raise, had been praised and told to return in the summer.
Further, Respondent had not indicated any particular
concern about his work except on one occasion. Finally,
Respondent's versions as to events, the affidavits, testimo-
ny, supra, are so inconsistent, so obviously inaccurate and
misleading, that one can only conclude that efforts were
made to cause matters to appear what they were not. Based
on all the foregoing, I am finding that Willis and Pegler
were terminated by Respondent because of their union
activities in violation of Section 8(a)(3) of the Act.
E. The Refusal to Bargain
I have previously found the bargaining unit as set forth
TAHOE VANGAS
above to be appropnate and that the Union had a majonty
therein as of January 22 when it made its demand for
recognition. Respondent admitted receiving a request to
meet and bargain about January 22. It denied that the -
Union represented a majority or that there was any legal
duty imposed on it to bargain. I further find that, in view
of the senous unfair labor practices engaged in by
Respondent, by Mathis' interrogation and threats in
violation of Section 8(a)(1) of the Act, and by the
terminations of Willis and Pegler in violation of Sections
8(a)(1) and (3) of the Act that:
The possibility of erasing the effects of past practices
and ensuring a fair election by the use of traditional
remedies . . . is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order.45
I am accordingly recommending the issuance of a remedial
order to bargain , both on the basis of the failure to bargain
under Section 8(a)(5) and (1) of the Act.
The Challenged Ballots and the Objections to the
Election, Case 20-RC-11162
On April 7, 1973, the Regional Director issued his report
on challenged ballots and objections. The tally of ballots
issued March 13, 1973, showed 3 votes cast for petitioner, 4
votes against petitioner, and 4 challenged ballots, for a
total of II valid votes plus challenged ballots. The
Regional Director recommended that the Board overrule
the challenges to the ballots of Kay Baker and Robert
Barton. He stated the challenges to the ballots of Aubrey
Willis and Bruce Pegler would "turn on the outcome of the
litigation respecting the charges to their discharge by the
Employer" and "no recommendation will be made at this
time regarding the ballots cast by said employees."
As for objections to the election, the Regional Director
recommended that the Board overrule certain specified
objections, then stated that the allegations of violation of
Section 8(a)(3) of the Act relative to Willis and Pegler, if
proven, would constitute grounds for setting aside the
election. He requested that the Administrative Law Judge
designated to conduct the hearing, prepare and cause to be
served a report containing "recommendations to the Board
as to the disposition of said challenges and as to whether
the election should be set aside."
I have found above that Willis and Pegler were
discharged in violation of Section 8(a)(3) of the Act. On the
basis thereof,46 I am hereby recommending that the
election be set aside. As for the challenged ballots of Pegler
and Willis, upon the basis of my finding that they were
discharged in violation of Section 8(a)(3) of the Act, it is
manifest and I find that they were eligible voters and
entitled to have their ballots counted. However, in view of
my recommendations above (1) that the election be set
aside and (2) my recommendation of the issuance of a
remedial order to bargain, I deem it unnecessary to further
consider the challenged ballots of Willis and Pegler.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
981
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relation 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 within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that Respondent
cease and desist therefrom and that a broad order issue
designed to protect the employees of Respondent. I shall
further recommend that Respondent affirmatively take
such action as will dissipate the effects of its unfair labor
practices. In the latter connection, having found that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Bruce Pegler and Aubrey Willis, I shall also
recommend that Respondent offer each of them immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered during the period of this discrimination against
him by payment to him of a sum of money equal to that
which he would have earned as wages from the date of
such discrimination to the date of Respondent's offer of
reinstatement, less his net earnings during such period,
with backpay and interest thereon to be computed m the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289; and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Vangas Inc., d/b/a Tahoe Vangas, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs, Teamsters & Helpers Local 150, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisal and loss of
employment for engaging in union activities or selecting a
union as their representative, and by interrogating employ-
ees concerning union activities, Respondent has interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed by Section 7 of the Act, and thereby
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Aubrey Willis and Bruce Pegler, Respon-
dent has engaged in, and is engaging in, unfair labor
45 Gissel Packing Co, Inc, 395 U S 575 at 614-615 (1969)
46 See N L R B. v. Realist Inc., 328 F.2d 840 (C.A. 7, 1964).
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
5. All servicemen, route salesmen and branch clerical
employees employed by Respondent (employer) at its
Auburn, California, location, excluding all other employ-
ees, office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. On January 22, 1973, the Union was the duly
designated representative of a majority of the employees in
the aforesaid unit.
7. By failing and refusing to meet and bargain with the
Union after January 22, 1973, upon request, Respondent
has violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER47
Respondent, Vangas, Inc., d/b/a Tahoe Vangas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals and loss of
employment for engaging in union activities or selecting a
union as representative.
(b) Interrogating employees concerning union activities.
(c) Discriminating in' regard to the hire, tenure of
employment, hours of employment, or any term or
condition of employment of Aubrey Willis and Bruce
Pegler, or any other employee, because he (she) has
engaged in union or concerted activities or any other
activity protected by the Act.
(d) Discouraging membership in Chauffeurs, Teamsters
& Helpers Local 150, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of its employees,
by discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(e) Failing and refusing to bargain with Chauffeurs,
Teamsters & Helpers Local 150, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, with respect to wages, hours, and terms and
conditions of employment of employees in the following
appropriate unit:
All servicemen , route salesmen and branch clerical
employees employed by Respondent (employer) at its
Auburn, California location , excluding all other em-
47 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
ployees, office clerical employees, guards and supervi-
sors as defined in the Act.
(f) In any like or related manner interfering with the right
of employees to self-organization , to form labor organiza-
tions, to join or assist the above-named or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent such right 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 it is
found will effectuate the policies of the Act:
(a) Offer Aubrey Willis and Bruce Pegler immediate and
full reinstatement to their former positions , or if such
positions no longer exist , to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges.
(b) Make Aubrey Willis and Bruce Pegler whole for any
loss of earnings each may have sustained as a result of the
discrimination against them in the manner prescribed in
section V of this Decision entitled "The Remedy."
(c) Upon request, bargain collectively with Chauffeurs,
Teamsters & Helpers Local 150, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative of the
employees in the appropriate unit described above, and, if
an understanding is reached, embody such understanding
in a signed agreement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful to an analysis of the amounts of
backpay due under the terms of this recommended Order.
(d) Post at its premises in Auburn, California, copies of
the attached notice marked "Appendix."48 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by an authorized
representative of the Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
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 date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the election in Case
20-RC-1162 be set aside.
48 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "