The Triple AAA Water Co.

National Labor Relations Board - Board Decisions

May 27, 1963

142 N.L.R.B. 803 (N.L.R.B. 1963)

THE TRIPLE AAA WATER CO. 803
The Triple AAA Water Co. and Chauffeurs , Sales Drivers &
Helpers, Local 572, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
21-CA-4994. May 27, 1963
DECISION AND ORDER
On February 15, 1963, Trial Examiner Louis S. Penfield issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in the unfair labor practices alleged in the
complaint and recommending that Respondent cease and desist there-
from as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
supporting brief. A brief in support of the Intermediate Report has
been filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
The Board hereby adopts as its Order the Recommended Order of
the Trial Examiner .2
1 For the reasons stated in his dissenting opinion in 1818 Plumbing if Heating Co., 138
NLRB 716 , Member Rodgers would not award interest on backpay
2 Appendix A attached to the Intermediate Report Is amended by inserting the follow-
ing note below the signature line at the bottom of the notice:
NoTe -We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding with all the parties represented was heard before Trial Examiner
Louis S. Penfield in Los Angeles, California, on December 19 and 20, 1962, on a
complaint and amendment to complaint of the General Counsel and answer of The
Triple AAA Water Co., herein called the Respondent .' The issues litigated were
whether the Respondent violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended , herein called the Act.
1 The complaint and amendment to complaint issued November 19 and December 3,
1962, respectively , are based on a charge filed with the Board on September 26, 1962
Copies of the complaint , amendment thereto, and charge have been duly served upon the
Respondent.
142 NLRB No. 94.
712-548-64-vol. 142-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including consideration of briefs filed by the parties,
and upon my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, with its principal office in Brawley, Cali-
fornia, engages in pumping, bottling, distilling, selling, and distributing potable water.
During the period between November 1, 1961, and October 31, 1962, Respondent sold
water and other goods valued in excess of $50,000 directly to customers located at
points outside the State of California. During the same period Respondent's total
sales amounted to approximately $542,060. Approximately 85 percent of this
amount was sales to householders; 14 percent sales to commercial and industrial
users; and 1 percent sales to retail establishments for resale. The record establishes
that Respondent operates on enterprise in which it engages in both retail and non-
retail activities. In such cases it is present Board policy to assert jurisdiction if the
business meets retail or nonretail standards.2 Since the Respondent here meets
both retail and nonretail standards,3 I find that it is engaged in commerce within
the meaning of the Act, and that assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Respondent has its general headquarters in Brawley, California, where the water
it sells is pumped out of the ground. It distributes its products through four operat-
ing divisions, only one of which, the Long Beach-Los Angeles division, is involved
in this proceeding. The division office and plant are located in Long Beach, Cali-
fornia. At the time of the incidents which concern us, the division employees in-
cluded one plant man and nine employees variously referred to in the record as
driver-salesmen or route-salesmen. The plant man bottles the water and each of the
driver-salesmen drives a truck which he loads with bottles of water, coolers, and
cups to make deliveries to customers on his assigned route. It is the duty of each
driver-salesman to meet the needs of all the customers on his route as well as to
solicit new customers in his territory. Each route covers approximately 50 miles
and each driver will service all the customers on his route every 2 weeks.
The plant is in direct charge of Plant Manager Jack Myers, assisted by Route
Supervisor Lou Duenweg. Myers and Duenweg spend most of their time at the
plant, but sometimes ride with the drivers for training purposes or to help them
work out route problems.
Each day the driver-salesmen report to the plant at approximately 7 a.m. and
each loads his truck with water and other items. Prior to the departure of each
a check is made of the items taken out and the value thereof is entered on a slip.
At the end of the day the value of the items brought back is noted on the same slip
and the balance purports to show the amounts sold and delivered during the course
of the day. These slips are mailed to the Brawley office, where all the accounting
is done and most records are kept. They are thereafter used as a control to check
against the driver-salesman's daily reports. During each day the drivers make their
deliveries, sales, and collections, noting the cash or credit amounts on a route book.
Upon returning to the plant each turns in the cash collected and makes a daily
report, showing all cash or credit sales. Each month Myers adds up the amounts
shown in the daily report for each driver, and the totals are sent to Brawley to be
checked against the control slips previously mentioned. About 4 days later a report
is received from Brawley as to whether or not the accounts balance. A shortage
will exist for a driver when there is less money shown on the totals of his daily
reports than the control says there should be; an overage, when there is more money
shown on the totals of his daily reports than the control indicates.
2 Man Products, Inc., 128 NLRB 546; Appliance Supply Company,
127 NLRB 319
Carolina Supplies and Cement Co., 122 NLRB 88; Siemons Mailing Service,
122
NLRB 81.
THE TRIPLE AAA WATER CO. 805
No union or concerted activity of significance took place among the employees
of the Respondent until September 20, 1962. On that date it is undisputed that
several of the driver-salesmen fell to discussing working conditions at breakfast and
agreed that they would have a meeting that evening at the home of driver-salesman
Don Turner to discuss what, if any, action would be appropriate to working out
certain problems concerning their working conditions. During the day, driver-
salesmen Don Turner and Allen Wood communicated with the Union and arranged
for it to send representatives to Turner's house that evening.
The meeting at Turner's house took place, as scheduled, with all the driver-
salesmen but Charles A. Chamberlain present. Representatives from the Union
attended the meeting. Various problems were discussed including what, if any-
thing, the Union could do for the driver-salesmen. Before the meeting concluded,
it is undisputed that each driver-salesman present signed a union designation card.
Thereafter, a course of events, which will be outlined below, took place culminating
in the discharge of Dale Rollins on September 25, 1962. The issues in this case
center on whether or not the Respondent had knowledge of its driver-salesmen's
efforts at self-organization, whether if such knowledge existed it thereupon embarked
upon a course of unlawful intimidation, surveillance, interrogation, and other con-
duct calculated to persuade the employees to abandon the Union, and, finally,
whether or not the discharge of Rollins was unlawfully motivated.
B. The meetings of September 20, 21, and 22 and the Respondent's
alleged unlawful conduct in relation thereto 4
As set forth above all the driver-salesmen but one met on Thursday evening,
September 20, at the home of Don Turner to discuss among themselves and with
union representatives problems relating to their working conditions with the re-
sult that each signed a union designation card. After the meeting had commenced
and only a short time before his own arrival, driver-salesman Robert Wood tele-
phoned the Brawley office and talked to a Mr. Walker, the comptroller of the Re-
spondent, telling Walker that "there was a deal going on between the boys"; that
"the boys were just getting together." Later, but while the meeting was still in
progress, Myers drove by Turner's house, observed that "some of the boys' cars
were there," but did not go in. Approximately 15 minutes later Myers telephoned
Turner and asked him if he "was getting [his] reporting done right." Turner
replied that he was, and Myers then asked Turner if the employees were having a
meeting at his house. This telephone conversation was carried on in the presence
of the assembled driver-salesmen who were told at the outset that it was Myers
calling, and who overheard Turner's end of the conversation. Turner replied
to Myers that it was "just a friendly meeting among the fellows and had nothing
to do with union activities." When the call was completed Turner expressed to the
others the fear that he might lose his job because of holding the meeting at his
house and all the drivers agreed that it would be advisable to keep silent about it .5
' The findings concerning these meetings are based primarily on the credited testimony
of driver-salesmen Lester Banes and Dale Rollins and certain admissions of Division
Manager Myers. Both Banes and Rollins testified fully and consistently with regard to
the events at each of the meetings. Driver-salesmen Don Turner, Robert Wood, Charles A
Chamberlain, and John Clemens each gave testimony concerning certain aspects of these
meetings Each of these witnesses is still working for the Respondent and each testified
with obvious reluctance, appearing to have a conveniently forgetful memory, generally to
favor the Respondent, and to hold an attitude toward the proceeding which is best ex-
pressed by Clemens who stated that, "He did not want anything more to do with it."
Nevertheless, their testimony is corroborative of that of Banes and Rollins in certain
material aspects. The affidavit of John Clemens was received in evidence for the purpose
of neutralizing prior contradictory testimony after be had demonstrated hostility. Noth-
ing contained therein is relied upon in making any of the findings herein. I have con-
sidered the fact that I did not have an opportunity to observe the demeanor of driver-
salesman Allen Wood whose deposition was received in evidence. The deposition shows
no material inconsistencies with the testimony of other credited witnesses but its effect
at the most is cumulative. I therefore find it unnecessary to consider it in making any
of the findings herein.
5 Despite Myers' denial that he had asked Turner about the meeting and Turner's initial
testimony to the same effect, I find the facts regarding this telephone conversation to be
substantially as related above. Turner at first denied that Myers had asked him about a
meeting, but later he admitted that he had given a statement to a field examiner affirming
the fact of Myers' Inquiry. He testified that he "guessed" the statement was true at the
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following morning, Friday, September 21, when the drivers had loaded their
trucks and were prepared to depart on their routes, Myers called them all into his
office and told them that he knew about the meeting the night before; that he
wanted to know what it was about; that "they shouldn't have gone behind his back
for it"; that "things were running smoothly and he did not want to see things dis-
rupted"; and that "[if] they had any problems to come to him with them." Myers
then proceeded to ask each driver if he had anything to say, and receiving no
replies the men departed, each going out on his respective route.
During the course of the same day Robert Wood decided "to try to get the boys
together" and he invited all the driver-salesmen to attend another meeting at his
house the following evening for the purpose, as he stated it, of trying "to work
out the boys in another way, instead of them jumping into something they didn't
know nothing about before." Two other driver-salesmen invited Myers to attend
this meeting.
The meeting at Wood's house took place on Saturday, September 22, with all the
drivers but Chamberlain present as well as Myers and Duenweg. All the driver-
salesmen participated in the discussion in some measure, but Rollins acted as a
principal spokesman for the men and played a major role in carrying on an extended
discussion with Myers concerning the Union and the various grievances and prob-
lems of the driver-salesmen. The meeting opened in an atmosphere of some tension
There was ill feeling between some of the drivers because of the presence of Myers
and Duenweg, since they had agreed Thursday not to discuss the Union with the
Company, and Rollins announced at the outset that he was sorry the supervisors
had been invited to the meeting since union activity on the employees' own time
was their own business. Myers replied that this was a matter of opinion. Myers
was asked how he knew of the Thursday night meeting at Turner's home, and he
replied that he had received a phone call from Brawley telling him about it
Turner stated that his neighbors had reported to him that they had seen Myers neat
his house the night before looking in the windows. Myers admitted that he had
been in the neighborhood at that time but denied looking in the windows. Myers
then asked who had taken it upon himself to go to the Union, and was advised that
it had been driver-salesmen Allen Wood and Don Turner. Discussion ensued of
existing grievances and of the pros and cons of having a union to rectify them.
Myers expressed the view that insofar as problems existed things could be worked
out without bringing in a union. As the discussion developed it appeared that a
principal grievance centered around the Respondent's policy of requiring work every
Saturday. Myers suggested a vote among the employees as to their wishes, and
when a majority voted that they desired to have every other Saturday off Myers
promised that he would undertake to get this practice put into effect. Rollins ex-
pressed some doubt at the time as to Myers' ability to get the change accomplished,
and expressed the view that a union was needed "to insure that these things were
carried out." At some time during the course of the meeting Rollins expressed the
fear that his job might be in jeopardy because of his role as the spokesman. Myers
assured Rollins and the rest of the employees that "everything would be forgiven"
and that Respondent would "let bygones be bygones." The meeting broke up with
nothing more being specifically resolved.
Respondent denies knowledge of the organizational purpose of the Thursday
night meeting, asserts that the Friday morning meeting was no more than a routine
sales meeting with no happenings out of the ordinary, and apparently is claiming
that the Saturday night meeting at Wood's house was no more than a friendly
gathering of employees to which Myers and Duenweg had been invited and at
which nothing concerning the Union had even been mentioned or discussed.
Respondent's claim that it had no knowledge of the meeting at Turner's house on
Thursday evening must be rejected. Wood's testimony that he telephoned a com-
pany officer about the meeting is undisputed. Myers admits driving past Turner's
house that evening accompanied by Supervisor Duenweg, seeing "some of the
boys' cars," and not going in. Myers seeks to explain this visit by saying that he
went there intending to discuss some reports with Turner. He does not explain
the nature of these reports, or why they required a visit to an employee's home by
the two top division supervisors on that, or any other, evening. On the contrary
time, but he sought to dilute the effect of this admission by a generalized claim that he
had been drinking when he gave it Finally, under further questioning, Turner admitted
that Myers had asked him if the employees were having a meeting and that he had told
Myers that they were. This is consistent with the testimony of those who overheard his
end of the conversation and I find that the inquiry was made.
THE TRIPLE AAA WATER CO. 807
his characterization of their subject matter as "some book work or routine work"
would seem to connote that they had neither great significance nor great urgency.
This improbable explanation, however, becomes even more implausible when Myers
goes on to testify that after refraining from going in after seeing "the boys' cars"
he forthwith proceeded to the plant and not 15 minutes later telephoned Turner
ostensibly about the same work. I find that the Respondent's direct knowledge
obtained from Wood considered with the implausibility of Myers' explanation, as
well as his later conduct at the Friday and Satuiday meetings, as set forth above,
make it more reasonable to conclude that not only had Myers been informed of
the meeting at Turner's house and its purpose, but that he drove past Turner's
house to see who was there and what he could find out, and finally, that he tele-
phoned Turner, using the reports as a pretext, with a real purpose of letting the
employees know, through Turner, that he was aware of their activities.
Nor can I credit Myers' assertion that the Friday morning meeting was just a
routine sales meeting, and that he could recall nothing different about it. Regular
sales meetings took place on Mondays, and Myers offers no explanation for calling
a meeting on this particular Friday without advance notice. This, when considered
in conjunction with the credited testimony of the driver-salesmen, as more fully set
out above, justifies a conclusion that Myers called the Friday meeting with an
object of informing the employees that he knew of their union meeting of the night
before, of interrogating them concerning it, and finally of letting them know that
they should have come to him, not the Union, about their problems.
I find that Myers interfered with, restrained, and coerced employees in the ex-
ercise of their Section 7 rights in violation of Section 8(a)(1) of the Act by (1)
his acts of surveillance in driving past Turner's home on Thursday evening and
later telephoning Turner; (2) interrogating Turner Thursday and the employees
Friday morning about their union activities; and (3) further creating the impression
of surveillance on Friday by remarking to the assembled driver-salesmen that he
knew all about the union activity the night before.6
It is against this background of surveillance and intimidation that the Saturday
meeting took place. It seems clear that Wood would never have arranged the
meeting had Myers not indicated on Friday that the employees might do better
by coming to him, and that Myers' invitation to attend was prompted by the belief
that this would be the most effective way to find out. Myers would have us be-
lieve that the union and the organizational activities of the employees were not
even mentioned at the Saturday meeting. This is refuted not only by Banes and
Rollins, whose versions I have credited, but even by Driver-Salesman Clemens whose
reluctance bordered on hostility but who testified, nevertheless , that Myers and every-
one else talked about the Union. Contrary to Myers it appears, and I find, that
the very purpose of the meeting was to discuss the union activities that had taken
place and to ascertain what, if anything, the company could offer. Even if it be
conceded that there was no impropriety, in and of itself, in Myers' attendance at
the meeting, I further find that he used the occasion as a forum both to interrogate
the employees as to their activity in calling in the Union and to undermine the
need for a union by meeting the employees' principal grievance with his promise
to get them every other Saturday off. This conduct was clearly calculated to induce
employees to abandon the Union as a medium for rectifying their grievances, and
I find that by engaging in it that the Respondent has interfered with, restrained,
and coerced the employees in violation of Section 8 (a) (1) of the Act?
C. The discharge of Dale Rollins
Dale Rollins was first employed by the Respondent as a driver-salesman on
May 31, 1962. Driver-salesmen are paid on the basis of a minimum guarantee
plus commissions. Respondent's practice with respect to newly hired driver-
salesmen is to employ them initially at a $400-per month minimum guarantee, to
have them undergo an initial training period of about 4 weeks learning the routes
accompanied by supervisors or more experienced drivers, to raise the minimum at
0 Georgia-Pacific Corporation , 132 NLRB 612.
'A motion by the General Counsel to strike paragraph numbered 6 (f) of the complaint
because no proof had been adduced was granted at the hearing.
In paragraph numbered 6(g) of the complaint the General Counsel alleges a violation
of Section 8(a) (1) by Respondent's demand for a copy of an employee's statement to the
Board given in the course of the investigation . In view of scope of the remedy that I
am recommending , I find it unnecessary to make findings with respect to the paragraph
numbered 6(g) of the allegation
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of this time to $450 when the route is assumed by the driver alone, and
finally at the end of 6 months to raise the minimum to $500 assuming that the
driver-salesman has shown satisfactory performance. Although Respondent has no
formal announced probationary program it appears that the Respondent treats the
first 6 months as a period of probation and watches the performance of new em-
ployees closely during this time.
In accordance with this practice Rollins started at the usual $400, received his
initial training, and was raised to $450 when he assumed his own route. No or-
ganizational efforts were under way among the driver-salesmen at the time when
he was first employed. When working their routes, drivers are sometimes ques-
tioned as to whether the employer is union and Rollins had been told by the Re-
spondent to be evasive if such questions arose, but if pressed to tell customers that
"there was something in the mill about unions." In July about 11/2 months after
Rollins was employed, Myers rode with him for a period to work out some re-
routing problems. While Myers was riding with Rollins the subject of unions came
up for discussion. Myers expressed to Rollins his intense dislike for unions and
his strong opposition toward one representing the Respondent's employees. Rollins
told Myers that he had been a member of the United Steelworkers for 3 years but
that he had grown unhappy about it feeling that a union curbed initiative and that
a union was of no benefit where it was not needed.
In August, Myers had complimented Rollins on making well above his guarantee
saying, "It was unusual for a person who had been with the company a short amount
of time to have made that kind of money." In August, Rollins was the No 2 man in
the division, in sales, and his route showed a percentage well above that shown for
the same routes during the preceding year. In addition, he had been complimented
several times at sales meetings by Company President Soderstrom.
On Tuesday morning, September 25, Rollins reported for work as usual , loaded
his truck, and was about to take it out when Myers came to him and said that he
was letting him go. At the time Myers remarked, "You came in late this morning
these routes have to grow and they cannot grow with you running them." Rollins
followed Myers to his office and asked him if he was being fired for union activity.
Myers' only reply was, "No, you were late." Three days later Rollins returned to
the plant office to get his last check and again talked with Myers. At that time
Myers showed him a copy of a letter which he had received from Brawley. Rollins
recalls this letter as saying, in substance, that Respondent was sorry to have to let
him go but that "with his audits and shortages as we had discussed last month it
was inevitable."
The General Counsel urges that Rollins' role as the Union's most articulate spokes-
man, the timing of his discharge, and the background of interference, restraint, and
coercion when considered in the light of the employer's allegedly insubstantial and
incosistent defenses warrant a conclusion that the discharge was unlawfully motivated.
The Respondent offers a variety of explanations for Rollins' termination. It is not
disputed that he was summarily discharged without prior warning, and that at the
time he was told only that he had been late and that the routes would not grow while
he was running them. There is nothing in the record to show how late, if at all,
Rollins had been that morning or that he was given to habitual tardiness. On the
contrary it appears that it is not infrequent for drivers to report late, that Myers had
never issued more than a general admonition against tardiness, that he had never
specifically warned Rollins about being late, and finally, according to Myers' own
testimony, he would not "dismiss a boy for being late" because he, Myers, often
came in late himself. Respondent offered nothing that would show that Rollins'
route performance was not good or that his routes were not growing. On the con-
trary, as set forth above, it is undisputed that Rollins had been complimented for
his sales record. Thus, the only reasons given to Rollins at the time of his dis-
charge must be found completely lacking in substance.
Indeed, it would appear that the Respondent itself had discarded the tardiness and
route growth reasons, since neither in its answer nor at the hearing did it urge either
ground as an explanation of the discharge. In its answer Respondent in denying the
allegation of discriminatory discharge advances three defenses that it characterizes as
"willful neglect of . . . duties" which include • (1) "complete inconsistency in bal-
ancing his books" and "continuous shortages and overages of cash . . .; (2) that
such inconsistencies resulted in "numerous complaints from customers "; and (3)
a seasonal decline in business as a result of which "a reduction of personnel his-
torically takes place during September and until May."
Since the principal reliance seems to rest on the defense of Rollins' inconsistency
in balancing his books, it may be well to dispose of (2) and (3) first.
THE TRIPLE AAA WATER CO. 809
Even if it be assumed that Rollins did have inconsistencies in his books which
resulted in shortages and overages, the record contains no evidence whatsoever of
any customer complaints which occurred prior to the discharge. Myers testified
that he could recall complaints from customers about Rollins, but could cite no
specific instances, and he testified further that even these unspecified complaints were
not received until after Rollins had been terminated. Thus, the alleged defense of
"numerous complaints from customers" must be rejected altogether.
The Respondent offered no evidence to support its allegation that a seasonal
decline in business had a bearing on its decision to discharge Rollins. The busi-
ness apparently does undergo some slack after the mid-summer months but there is
no evidence of the extent of the decline, whether or not it was sufficient to occasion
a layoff, or what, if anything, other years had shown with regard to seasonal layoffs.
The record is thus altogether lacking in evidence from which it can be inferred that
business conditions justified the layoff of Rollins or anyone else at this particular
time. Moreover, although Rollins was not immediately replaced, Myers testified
that he did hire another driver-salesman in December. This would tend to refute
the allegation that Rollins was discharged as a part of the historical reduction in
personnel taking "place during September and until May."
There remains the Respondent's claim that it discharged Rollins as an unsatis-
factory employee who could not properly keep his books. The Respondent's record-
keeping and auditing scheme have been described above. Rollins' first audit took
place in July at which time he had a $90 overage. Rollins' next audit was in August
at which time he had $150 shortage. Myers told him that this would be in part
offset by the $90 overage, but that he should seek to check his records for mathe-
matical errors. Rollins did this, found some errors, and reported the matter to
Myers who said nothing further. Overages and shortages in varying amounts are a
not uncommon phenomenon among driver-salesmen, but the amounts attributed to
Rollins in July and August are clearly substantial, and if Rollins is called upon to
bear the responsibility therefor, they could serve as a relevant factor in his continued
employment. As noted above, however, the record does not disclose Respondent
showing undue concern after either the July or August audit, but only a cooperative
willingness to help Rollins do better. Myers even suggested the possibility that the
errors might not be attributable to Rollins, but at no time does it appear that an
attempt was made to check this out. It is not to be presumed that Respondent would
lightly bring about the termination of an employee it had trained who was other-
wise performing in a satisfactory manner unless it could be demonstrated that his
account discrepancies were not only substantial and primarily his own fault, but also
that they pointed to a developing pattern which would indicate little chance of im-
provement as experience was gained. Respondent failed to produce books or records
relating to Rollins or any of the other driver-salesmen which would show either
Rollins' responsibility for the discrepancies, or show the extent of his discrepancies as
they compared with other probationary or regular employees who had been retained
or laid off. This state of the record makes it difficult, if not impossible, to evaluate the
July and August figures as a relevant factor relating to the discharge.
Of even greater significance, however, is the Respondent's failure to adduce evi-
dence concerning Rollins' performance in September. Myers regularly sends
in the daily reports for the monthly audits which show the overages and the short-
ages on the 20th of the month. For September this was only 5 days before
Rollins' discharge. Myers testified that he made the decision to discharge Rollins
on Monday, the day before the event, and that he had been influenced, in part, by
a telephone call from Brawley about Rollins' bad records. He failed, however,
to testify with any degree of certainty about either the time or the substance of
this telephone call, and not even a general figure, let alone records of the audit
itself, was presented which would show anything about Rollins' recordkeeping for
the month subsequent to August 20. When this is coupled with the failure of
the Respondent to show the relative significance of, or Rollins' responsibility for,
the July and August reports, it becomes highly improbable that report discrepancies
were the real cause for the discharge.
Since each of the Respondent 's defenses lack real substance it becomes neces-
sary to seek elsewhere to ascertain the true motivating factor in Rollins' discharge.
Respondents hostility toward the Union and the course of conduct it pursued aimed
at getting the employees to abondon it have already been noted above. Although
following the Saturday night meeting of September 22, Myers had some reason
to believe that his promise to get the employees every other Saturday off might
result in their giving up the Union, it was still faced with the prospect of a Board
election; and Rollins, at least, and possibly others had made it clear that they felt
a union was still needed . Although Myers knew that two other employees had
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first called in union representatives, this does not serve to eliminate Rollins as a
reasonable choice if Respondent sought to carry further its already expressed
animosity toward the union using the most telling means of all to show that union
adherence did not pay. Rollins not only had a known union background but he
had demonstrated himself to be the most articulate spokesman for the men at the
Saturday night meeting. In addition to this he was a probationary employee whose
only two audits gave him a surface vulnerability which would lend an air of
plausibility if the choice were challenged. When all these factors are considered
against the insubstantial and inconsistent reasons offered by Respondent to justify
the discharge, it becomes reasonable to infer that the defenses advanced by Re-
spondent were a mere pretext and that the real motivating reason for Rollins dis-
charge was his union activity. I therefore find that the Respondent discharged
Rollins on September 25 for his membership and activities in, and on behalf of, the
Union and that by such discharge Respondent engaged in discrimination within
the meaning of Section 8(a)(3) of the Act, and I further find that by such dis-
criminatory discharge Respondent also interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 violative of
Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and
desist therefrom and take certain affirmative actions designed to effectuate the
policies of the Act.
The Respondent's unfair labor practices strike at the heart of the rights guaranteed
employees by Section 7 of the Act .8 The rights involved are closely related to
other rights guaranteed by Section 7. Because of the nature of the unfair labor
practices found above, there is reasonable ground to believe that Respondent will
infringe upon such other rights in the future unless appropriately restrained. There-
fore, in order to make effective the interdependent guarantees of Section 7, I shall
recommend an order below which will have the effect of requiring the Respondent
to refrain in the future from abridging any of the rights guaranteed employees by
Section 7.9
Having found that Respondent has discriminatorily discharged and refused to
reinstate Dale Rollins, I will recommend that Respondent be ordered to offer him
immediate and full reinstatement to his former or substantially equivalent position,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him, by payment to him of a sum of money equal to the
amount of wages he would have earned from the date of the discrimination to the
date of the offer of reinstatement,10 together with interest thereon at the rate of
6 percent per annum, and that the loss of pay and interest be computed in accord-
ance with the formula and method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to
which the parties hereto are expressly referred.
s N.L R B v Entwistle Mfg Co, 320 F 24 532 (C A 4)
6 May Department Stores v. N.L.R B., 326 U.S. 376; Bethlehem Steel Co v N L R B ,
120 F. 2d 641 (C.A D.C.).
10 The Respondent urges a cutoff date for backpay based on an alleged waiver of re-
instatement by Rollins. Its position is grounded upon the belief that Rollins in a state-
ment to the Regional Office had indicated that he would waive reinstatement. Respondent
requested production of this statement at the hearing but Its request was denied for the
reason that the matter was deemed irrelevant and related only to a matter concerning
the internal management of the Regional Office and not to testimony of a witness within
the purview of National Labor Relations Board Rules and Regulations, Section 102.118.
Respondent does not claim it has ever offered Rollins reinstatement or that it has acted
in any prejudicial manner In reliance upon any purported waiver Absent some evidence
of a bona fide offer of reinstatement by Respondent, no earlier cutoff date is appropriate
even if a waiver representation to the Regional Office be assumed
THE TRIPLE AAA WATER CO. 811
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, The Triple AAA Water Co., is, and has been at all material
times, an employer within the meaning of Section 2(2) of the Act.
2. Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been
at all material times, a labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Dale Rollins on September 25, 1962, as found above, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act, as found above, the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, The Triple
AAA Water Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Chauffeurs, Sales Drivers
& Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization of its employees,
by discharging or in any other manner discriminating against any individual in regard
to his hire, tenure of employment, or any term or condition of employment except
as authorized in Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other con-
certed 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 that
such right may be affected by an agreement requiring membership in a labor organiza-
tion 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 to Dale Rollins immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights and
privileges.
(b) Make Dale Rollins whole in the manner and in accordance with the method
set forth in section V, above, entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to an analysis
of the amount of backpay due.
(d) Post at its usual place of business, copies of the attached notice marked
"Appendix A." ii Copies of said notice , to be furnished by the Regional Director
for the Twenty,first Region of the National Labor Relations Board, shall, after
being signed by the Respondent, 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.
n In the event that this Recommended Order Is adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the additional event that the Board 's Order Is enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the receipt by the Respondent of a copy of this Intermediate Report
and Recommended Order, what steps the Respondent has taken to comply therewith.12
It is further recommended that unless on or before 20 days from the date of its
receipt of this Intermediate Report and Recommended Order the Respondent notify
the Regional Director that it will comply with the foregoing Recommended Order,
the National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
12 In the event that this Recommended Order be adopted by the Board, paragraph num-
bered 2(e) thereof shall be modified to read: "Notify said Regional Director, in writing,
within 10 days from the date of this Order, what steps the Respondent has taken to
comply therewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Chauffeurs,
Sales Drivers & Helpers, Local 752, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor organi-
zation of its employees, by discharging or in any other manner discriminating
against any individual in regard to his hire or tenure of employment or any
term or condtion of employment, except as authorized in Section 8(a) (3) of the
Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that 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.
WE WILL offer to Dale Rollins immediate and full reinstatement to his former
or 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 as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
THE TRIPLE AAA WATER Co.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date of posting, and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex-
tension 1031, if they have any questions concerning this notice or compliance with
its provisions.
Dubo Manufacturing Corporation and United Steelworkers of
America, AFL-CIO. Cases Nos. 8-CA-9700 and 8-CA-2820.
May 27, 1963
DECISION AND ORDER
On August 28, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that
142 NLRB No. 91.