Tursair Fueling, Inc.

National Labor Relations Board - Board DecisionsFeb 26, 1965

151 N.L.R.B. 270 (N.L.R.B. 1965)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT make any of our present employees fill out and sign employ- ment application forms, and we will not hold any of our employees who signed such forms to what they agreed to do by signing them. WE WILL NOT discourage any of our employees from joining the United Steel- workers of America, AFL-CIO, or any other union, by firing or suspending any of our employees. WE WILL NOT interfere in any other manner with the rights of our employees under the law, or force them to give up any of their rights under the law. WE WILL offer their jobs back to Walter Lee Johnson, Quentin Nealy, Allen J_ Rose, and Willie Pollard, and give them backpay for the time that they have not been working since the night shift was established on January 17, 1964. WE WILL give Herman Amos the pay which he would have received if he had not been suspended from work for 2 weeks on January 30 and for 1 week on March 2. WE WILL get together with the Union, whenever the Union asks us to, to try to work out a written union contract. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor union. If any employee is unable to read this notice but learns that it has been posted, he may ask the management to have it read to him. LANEY & DUKE STORAGE WAREHOUSE CO, INC., and LANEY & DUKE TERMINAL WAREHOUSE CO., INC., Employers. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion 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. 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. Employees may communicate directly with the Board's Regional Office, in the Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711, if they have any question concerning this notice or compliance with its provisions- Tursair Fueling , Inc. and Marvin Louis Howe, Jr. Case No. 12-CA-2956. February 26, 1965 DECISION AND ORDER On December 11, 1964, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. t Respondent ' s request for oral argument is hereby denied , as the record , exceptions, and briefs adequately present the issues and the positions of the parties 151 NLRB No. 35. TURSAIR FUELING, INC. 271 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations with the modifications noted below 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that Respondent Tursair Fueling, Inc., Miami, Florida, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order .3 2 The Trial Examiner found that Howe ' s concerted activities were a contributing factor leading to his discharge . Respondent ' s counsel at the hearing before the Trial Examiner readily conceded such to be the case He stated that Respondent ' s resentment over Howe ' s concerted activities "played a part in the discharge . . . [ and] . . . it is a reasonable inference that this was one of the factors in the discharge " On the record before us, however , the conclusion is inescapable that not only were Howe ' s concerted activities a factor in his discharge , but they were the motivating factor for that dis- charge . Thus, at the time of Howe ' s discharge , Respondent ' s general manager, Wobbe, when asked by Howe if he had been fired because of "shooting off my mouth ," replied, "Yes " Wobbe gave Howe no other reason for the discharge Wobbe 's statement clearly confirms the fact , as the record shows and as Turso stated in his letter to Howe advising Howe of his discharge , that Howe ' s concerted activities were the real reason for the discharge In support of its contention that Howe was a supervisor , and that his dis- charge was therefore privileged , 'Respondent claims that the Trial Examiner failed to give sufficient weight to Wobbe ' s testimony that Howe , among other alleged indicia of supervisory status, had the authority to send an employee home It is not clear whether the Trial Examiner credited Wobbe's testimony in this regard . However , even if Wobbe is credited , at best his testimony shows that he was referring only to the particular circumstance when an employee was drinking . We do not believe , in light of all the evidence , that this strictly limited authority is sufficient to overcome the Trial Examiner's finding that Howe was not a supervisor within the meaning of Section 2(11) of the Act 3 The Board has considered Respondent 's "Request to the National Labor Relations Board To Receive Respondent 's Statement , and in the Alternative, a Request for Remand, in Supplementation of Respondent ' s Brief to the Board in Support of Exceptions," and the General Counsel's response in opposition thereto As the Board has found that Respondent ' s true motive for discharging Howe was his concerted protected activities (see footnote 2, supra ) and not because he drove a company vehicle off the paved roadway as Respondent contends , there is no basis for the Board to withhold its customary remedy of reinstatement and backpay . The above incident is insufficient to warrant the conclusion that Howe is a reckless driver who should not, in any event , be reinstated Accordingly , we deny Respondent 's request that the case be remanded to the Trial Examiner for the purpose of taking additional evidence and such request Is also denied for the reason that such evidence would merely be cumulative and Respondent has not shown that the evidence was unavailable to it at the time of the hearing. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed on June 9 and July 20, 1964, respec- tively, by Marvin Louis Howe, Jr., an individual , a complaint dated July 21, 1964, was duly issued alleging that the Respondent, Tursair Fueling , Inc., herein also called the Company , has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Relations Act, as amended . Respondent duly filed an answer denying the material allegations of the complaint and setting forth an affirmative defense more 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully described below. A hearing in this proceeding was held before Trial Examiner Herbert Silberman at Miami, Florida, on September 22 and 23, 1964. The parties participated in oral argument at the close of the hearing and, thereafter, filed briefs with me. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Florida corporation, maintains an office and place of business at the Miami, Florida, International Airport where it is engaged in business of fueling and lubricating aircraft. Respondent furnishes such services pursuant to a contract with Texaco, Inc., whereunder the Company transfers fuel and lubricants from Texaco's storage area to aircraft of various airlines, mostly foreign owned, which use the air- port. During the calendar year 1963, Respondent received payments from Texaco, Inc., totaling $124,583.63. Of said amount less than $10,000 was paid to Respondent with respect to services performed by it for aircraft owned by domestic airlines. I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Freight Diivers, Warehousemen and Helpers, Local Union No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The Company on June 5, 1964, discharged Marvin Louis Howe, Jr., at which time he was handed a letter signed by the Company's president, W. T. Turso, which in part states, "You are discharged because you have participated in concerted activities in your own behalf and on behalf of the union which seeks to represent the rank and file employees. Management cannot tolerate such disloyalty in its supervisors." General Counsel contends that Howe's discharge for such reasons constitutes a viola- tion of Section 8(a)(1) and (3) of the Act. Respondent's defenses are : (1) At the time of his discharge Howe was a supervisor not subject to the protection of the Act; (2) Howe was discharged for cause and not because of his participation in con- certed activities; and (3) Howe is estopped to charge Respondent with a violation of Section 8(a)(3) of the Act because in a representation proceeding, Case No. 12- RC-1949, pending on the date of Howe's discharge, a stipulation that Howe was a supervisor was entered into by the Union and the Company and was accepted by the Hearing Officer and such stipulation was executed with the knowledge and con- sent of Howe or was ratified by Howe. B. The estoppel question At the hearing in the representation proceeding referred to above, which was held on June 3 and 4, 1964, the Union and the Company entered into a stipulation, which was accepted by the Hearing Officer, that Howe should be excluded from the voting unit as a supervisor. (Howe was discharged the day after the hearing was concluded.) Subsequently, about June 10, 1964, the Union filed with the Regional Director of the Board a request to withdraw the stipulation. Respondent contends it was not given an opportunity to oppose the motion. The request was disposed of by the Regional Director in his Decision and Direction of Election, dated June 16, 1964, as follows. . . [A]fter the hearing, Petitioner filed a motion to withdraw from the stipulation as to Howe on the ground that Petitioner has discovered new information indicating that Howe is in fact not a supervisor. This motion was unopposed by Employer. There is also pending in this office a charge filed by Howe against Employer (12- CA-2956), the investigation of which indicates at this time that the record made in the instant case may be incomplete and deficient as to the actual scope of Howe's duties and responsibilities. The Union's motion to withdraw from its stipulation is, therefore, granted and Howe will be permitted to vote subject to challenge." Thus, there was no resolution in the representation proceeding of Howe's supervisory status. It is immaterial that the Company may not have had an opportunity to oppose the request for withdrawal of the stipulation because by itself the stipulation could not determine Howe's status, even for the purposes of the representation proceeding. Under the Act and the Board's Rules, the officer conducting the representation hear- ing had authority only to accept the stipulation as part of the record in the case and TURSAIR FUELING, INC. 273 did not have authority to make any decision in the matter. Authority to make sub- stantive decisions in representation proceedings is reserved to the Board or the Regional Director. See Section 102.64 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended. As the Regional Director did not make any final determination of Howe's status, Respondent was not prejudiced by any alleged deprivation of opportunity to oppose the Union's request for withdrawal of said stipulation. Any reliance the Company might have placed upon its stipulation with the Union in reaching its decision to discharge Howe was misplaced because "the agreement between the Union and Employer [does not] preclude ... the Board from examining an employee's supervisory status ...." N.L R B v. Montgomery Ward & Co., 242 F. 2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. Thus, the transactions in the representation proceeding upon which Respondent relies do not serve to bar consideration of Howe's status in this proceeding. See Leonard Niederriter Company, Inc., 130 NLRB 113, 115, footnote 2; Southern Airways Company, 124 NLRB 749, 750, footnote 2, affd. in part 290 F. 2d 519 (C.A. 5). Furthermore, the stipulation between the Union 1 and the Company cannot operate to deprive Howe of his rights as an employee under the Act because, absent strong and persuasive circumstances not present in this case, the Board will not sanction any purported waiver of such rights. Accordingly, I find the affirmative defense pleaded in Respondent's amended answer to be without merit. C. Howe's status The Company's primary activity at the Miami International Airport is furnishing fuel and lubricants for aircraft. This involves little more than transporting such products in trucks from storage tanks to the aircraft and then transferring the fuel and lubricants into the planes. During most of the period of Howe's employment, which was from April 8, 1963, to June 5, 1964, the Company operated around the clock, 7 days per week, and employed from 10 to 12 men, including General Manager John H. Wobbe, who devoted himself primarily to office work. The employees were divided into three regular shifts the hours of which were: 5:45 a.m. to 2:45 p.m.; 2 to 11 p.m.; and 11 p.m. to 8 a.m. Wobbe's normal hours of work were from 9 a.m. to 6 p.m. In addition to Wobbe, the only other undisputed supervisor at the Com- pany's Miami facility during the period of Howe's employment was Charles Bullock. Bullock was responsible for the direction and supervision of the employees engaged in the fueling operations and for the care of the Company's equipment. His normal hours of work were from 8 a.m. to 5 p.m. Newly hired employees generally worked from 9 a.m. to 6 p.m. until they obtained sufficient experience in their duties for assignment to a regular shift. Apart from Wobbe and Bullock, all employees per- formed essentially the same duties. They spent approximately 80 percent of their working time fueling aircraft and the remainder of their time doing cleanup and simi- lar maintenance tasks. The number of men assigned to each of the three regular shifts varied from two to four per shift. Respondent acknowledges that from April 1963 to February 1964 Charles Bullock was the only supervisor of the Company's fueling operations and that the employees worked without any direct supervision at night and on Bullock's days off. In Febru- ary 1964 Howe was appointed to the position of leadman on a probationary basis and such promotion was made permanent in April 1964. Respondent contends that as leadman Howe was a supervisor within the meaning of the Act. According to Wobbe, in February 1964 "I told Mr. Howe I thought he would make a good supervisor, and I would like to give him an opportunity to see if he could be on that [on a] permanent status." At that time, apart from Bullock and Wobbe, all employees were classified as refuelers. When Howe was designated as a leadman he was given a new title never previously held by any other employee of the Company.2 Wobbe did not i Respondent attempted to prove that there was a link between Howe and the Union which in some manner authorized the Union to act for Howe in the representation pro- ceeding. However, while no evidence was adduced by Respondent showing any relation- ship between Howe and the Union prior to the former's discharge, there was testimony indicating Howe had been opposed to the Union. I find that Respondent has not estab- lished that the Union in any way was acting for or on behalf of Howe when it entered into said stipulation with the Company 2 Wobbe testified that "[a] supervisor is a leadman, also" Regardless of Wobbe's understanding of the significance of the classification of leadman, Howe and the other -employees of the Company were told merely that Howe was appointed a leadman. On the other hand, Bullock was known to the employees as a "supervisor" and the word "supervisor" was written on Bullock's uniform. No designation of position was in- scribed on Howe's uniform after his appointment to the position of leadman. 783-133-66-vol. 151-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advise Howe what duties, responsibilities , or authority attached to the position of leadman at the time he informed Howe of his appointment .3 Howe remained subject to Bullock 's supervision . He continued to do the same work after his designation as leadman as he did before his promotion , spending about 80 percent of his time fueling aircraft and about 20 percent of his time doing maintenance tasks According to Wobbe, the significant change that occurred by Howe 's promotion is that "he was the boss in February . With my sanction , he was able to direct the men." About 2 weeks after Wobbe advised Howe of his provisional appointment to the position of leadman , at a general meeting of employees , Wobbe informed them of Howe's designation as leadman.4 In April, Howe was given an increase of 12 cents per hour thereby raising his rate of pay to $2.12 per hour and about the same time Howe was informed that his appointment as leadman had become permanent . No further announcement con- cerning Howe's status was made to the other employees. Wobbe testified that Howe had no authority to hire, discharge ,5 or discipline employees ,6 but he considered that Howe had authority to make recommendations a Wobbe testified that Howe "was responsible to see that the afternoon work was car- ried out properly " Wobbe could not remember when he told this to Howe , although he believes he did so in February 1964 In this connection Wobbe did not advise Howe as to the manner in which the latter was to discharge such responsibility or what authority he had over other employees . According to Wobbe , Howe "had been there long enough to know what a supervisor ' s duties were . . [ H]e worked for Mr Bullock He knew the operation I mean I didn ' t feel as though I had to sit down and say, `You do this, you do that ,' exactly , or write it down for him . . . " Wobbe also testified that as situations arose he discussed with Howe the additional duties and responsibilities he expected Howe to assume . However, Wobbe ' s testimony concerning such discussions was meager and inconclusive . Wobbe explained that he was at a loss to describe such additional duties and responsibilities "because I don't know what particular things came up, and when they came up " * Wobbe testified that he also told the employees that Howe is in charge of the after- noon shift . None of the other witnesses who testified at the hearing , including Curtis Pike who was called as a witness by Respondent , corroborated Wobbe ' s testimony in this respect I do not credit Wobbe that such statement was made to the employees. Wobbe's testimony in many respects was uncertain , vague, or ambiguous and reflected an effort to direct his answers into channels most favorable to the course of Respond- ent's case rather than to relate sincerely and accurately the events as he remembered them. In general , I find Wobbe was an unreliable witness. Howe also displayed an uncommendable tendency at the hearing to distort the events about which he was ques- tioned in order to give a favorable color to his testimony . Howe also impressed me as being an unreliable witness Accordingly , the facts as set forth in this Decision are the versions of the events which, upon the record as a whole , I believe to be correct after taking into account my reservations as to the credibility of Wobbe and Howe. Although I do not credit Wobbe ' s testimony that he intormed the employees that Howe was in charge of the afternoon shift, I do find that Wobbe told the employees, at the meeting referred to above, that any questions that arise in the afternoon should be taken up with Howe and Howe was instructed to telephone Wobbe or Bullock about such matters rather than the men doing so directly . Wobbe did not describe the nature of the questions which arose or the extent of Howe's authority to resolve them. Some amplification is obtained from the testimony of Leonard Simkovitz who testified that he understood Wobbe's instruction was, "In case we have any doubts in our fueling in loads or other things . . . we should ask Howe," and from the testimony of Charles Heinig who testified that a couple of times when the men were running behind in their work Howe telephoned Wobbe There is no evidence that by reason of Wobbe ' s instruc- tion Howe was given or exercised any authority other than of "a routine or perfunctory nature. " N.L.R B. v. Southern Bleachery f Print Works , Inc, 257 F. 2d 235, 239 (C.A. 4). 5 Wobbe testified that there was an occasion when Howe reported to him that an employee had come to work half drunk and Howe was tempted to pull the employee's tiniecard and send him home Wobbe replied, "You should have , and any time you feel this is necessary , do it " There is no evidence that Howe ever sent any employee home or that employees of the Company had been informed that Howe had such authority. I do not find that the quoted remaik by Wobbe conferred upon Howe independent authority to discharge or relieve employees from duty. 6 Completely uncontradicted is Howe 's testimony that he had no authority to effect the transfer of employees, to make changes in their job duties , to recommend promotions or pay raises for employees , or to excuse tardiness or absences on the part of employees. TURSAIR FUELING, INC. 275 regarding the hire and discharge of employees, although he never specifically advised Howe that he had such authority. According to Wobbe, he discussed with Howe the performance of various employees, and in particular he discussed the discharge of Lawyer. However, Wobbe's testimony also shows that he independently reached a decision to discharge Lawyer and that Howe's concurrence with his decision did not motivate Wobbe's action. Furthermore, that Wobbe discussed employees' per- formance with Howe in itself does not have any particular significance because Wobbe had such discussions with Howe before Howe was appointed leadman 7 and also discussed such matters with other employees. Wobbe's testimony fails to estab- lish that Howe had authority effectively to recommend the hire or discharge of employees. Wobbe also testified that wherever possible he adopted the recommen- dations advanced by Howe with regard to the employees' working conditions. How- ever, he did not testify that he had informed Howe of such fact and did not testify to any recommendation of Howe's that he had accepted or even had acted upon. Furthermore, Wobbe testified that he followed Howe's recommendations "if I thought it was a good idea," which suggests that Howe's recommendations were subject to Wobbe's independent evaluation and did not carry any effective weight. Wobbe testified that in March 1964 he informed Howe that the latter had author- ity to authorize overtime work and that Howe, in fact, exercised such authority on at least five occasions. However, Wobbe never advised the other employees that Howe had such authority. Wobbe explained that occasions arose where because employees were engaged in fueling operations when their shift ended it was necessary for them to work overtime. The employees had been instructed that they should telephone him before so doing, but if Wobbe was not available the employees then were permitted to assume for themselves the responsibility for determining the need for overtime work. As all the employees had limited discretion regarding their overtime, as they had not been advised that Howe could assign them overtime work, and as only little judgment was required in making the determination concerning the necessity for overtime work,8 such authority as was given Howe with respect to the authorization of overtime work was merely of a routine nature. Lastly, in support of Respondent 's position that Howe was a supervisor is Wobbe's testimony purporting to establish that Howe exercised authority to schedule the employees' work and to direct them in their work. Wobbe testified that in April or May, Howe's hours of work were changed by an hour so that he then worked from 3 p.m. to midnight. Wobbe's purpose was to reduce overtime work. According to Wobbe, he advised Howe that by reason of the change Howe "would overlap the midnight shift by an hour, so the men could be lined up with their duties." This involved "calling our contract customers to find out whether or not they have any ships that needed refueling , at what time this should be done, and when they were leaving." Thus , it appears that this function was nothing more than a routine sched- uling activity. Concerning Howe's alleged authority to direct the work of other men, Wobbe's testimony was that Howe instructed new men in their duties and where a fueling operation to which Howe was assigned required more than one man Howe assumed charge. The function Howe discharged of instructing new employees did not set him apart from any other experienced employee because, according to Curtis Pike, "usu- ally the newer men that came on would look forward to the older men to carry them along," or invest him with supervisory responsibility . N.L.R.B. v. Valentine Sugars, Inc., 211 F. 2d 317 (C A. 5). With regard to Howe 's alleged direction of other experienced employees , the tes- timony shows that their work was repetitive and, according to Wobbe, the men were supposed to know what to do and how to do it. Thus, taking charge meant no more than that Howe indicated to his coworkers the division of their joint duties.9 The mere responsibility of making work assignments in a routine fashion does not make an employee a supervisor. Precision Fabricators, Inc. v. N.L.R.B., 204 F. 2d 567 (C.A. 2). 7 Wobbe testified that if Howe "had suggested the biting or firing of anyone in particular before this time that I had enough confidence in him to try him for supervisor, I would have ignored it, whereas afterwards what he said carried a lot of weight " 8 Wobbe testified that between March and June 1964 he did not refuse the overtime request of any employee Prior to March there were a few times when a plane arrived late for fueling and Wobbe was able to avoid authorizing overtime work by making other arrangements for fueling the craft 9 When Howe was on duty , in the absence of Bullock and Wobbe , Howe distributed the work among the men, that is, he assigned to the men the aircraft they were to fuel This routine function was performed by other nonsupervisory employees at times when Bullock, Wobbe, and Howe were not at work. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company's refueling activities were conducted by a small number of men consisting of two to four per shift. During the period from April 1963 to February 1964 these men admittedly operated without direct supervision except when Bullock was on duty. In February 1964 Howe was appointed a leadman. Prior thereto the Company had not used any such job title and had not published any job description for that position. Accordingly, no inference can be drawn merely from the appoint- ment of Howe to the position of leadman that he was hereby invested with supervisory authority or by reason of such appointment was assigned additional duties and respon- sibilities. Such announcement of Howe's appointment as was made to the employees did not convey to them the impression that Howe had been designated their supervisor or that he had been given any significant authority over them. Thus, Curtis Pike tes- tified that it "was never announced to me that [Howe] was a supervisor." Similarly, Eugene Rumford, Leonard Simkovitz, and Charles Heinig testified that they had not been informed Howe was their supervisor nor did they consider him to be such. Such authority as was given to Howe or which Howe did in fact exercise after February 1964 was merely of a routine nature not requiring the use of independent judgment. Accordingly, I find that during the times material hereto Howe was not a supervisor within the meaning of Section 2(11) of the Act. Frederick Steel Company, 149 NLRB 5; Management Directors, Inc., d/b/a Columbus Plaza Motor Hotel, 148 NLRB 1053; Plastic Industrial Products, Inc., 139 NLRB 1066; United States Gypsum Company, 118 NLRB 20. D. Howe's discharge Marvin Louis Howe , Jr., was discharged on June 5, 1964, when General Manager John H . Wobbe handed him a letter signed by W. T. Turso, the Company's president, which in pertinent part reads as follows: This will notify you that you are discharged as of five o 'clock p.m., June 5th, 1964. You are discharged because you have participated in concerted activities in your own behalf and on behalf of the union which seeks to represent the rank and file employees . Management cannot tolerate such disloyalty in its super- visors. Despite the letter, Respondent contends that Howe was discharged not for the reasons set forth therein but because Howe on the previous day in violation of a company rule drove a truck onto an unpaved area causing damage to the vehicle.ko Wobbe testified that the rule had been violated only once before , in September or October1963, and the two employees who had been its transgressors were discharged. However, Wobbe further testified that, although in June 1964 he was the individual immediately responsible for the control and direction of personnel and had authority to discharge employees , he did not make the decision to discharge Howe and had not been consulted about the matter . The letter of discharge was handed to him by Gloria Clausen with instructions that he should give it to Howe. Gloria Clausen , who is secretary -treasurer of the Company and assistant to Presi- dent Turso , testified that early in the day of June 5 she was informed about Howe's violation of the rule . She thereupon telephoned the Company 's attorney and advised him that she wanted to discharge Howe because of the accident . " He told her he would call back. Later he did so and dictated the letter of discharge . After the letter was typed , it was taken to President Turso for his signature and then Miss Clausen brought it to the airport and gave it to Wobbe for delivery to Howe. Clausen testified that she and Turso both agreed to discharge Howe because of the accident . Turso did not testify at the hearing . Miss Clausen was asked to explain how it happened that Howe was advised he was being discharged for his participation in concerted activities if his violation of the rule was the reason for his discharge . She testified that she had to accept the judgment of the Company's attorney in the matter . She was of the opinion that the attorney composed the let- ter based upon a conversation between the attorney and Turso . The conversation 10 The rule was to the effect that employees were not to drive vehicles off paved surfaces and employees who violated the rule would be discharged immediately. A copy of the rule, which had been initialed by all the employees including Howe, had been posted on the bulletin board u Miss Clausen explained , "We did not normally discharge somebody with a letter. But we were advised in May, following the notice that the employees wanted to be represented by the union, we were advised by our counsel not to talk to any of the employees about anything, not to change anything in the company, not even to discharge anyone. We lost all contact with the employees at this time." TURSAIR FUELING, INC. 277 to which she referred concerned a meeting held in May 1964 between Turso and Howe. At this meeting Howe discussed with Turso various grievances on the part of the Company 's employees . 12 Clausen learned from Turso that , during the meet- ing, Howe had said to Turso that Howe "can get any man to quit any time he wants, or they will all walk out now if he asks them to." According to Clausen , Turso "was quite upset ... because of this remark which he in turn, in my presence , told our attorney . And I guess the attorney assumed from this that this is one of the people that is agitating on the job, this is a supervisor agitating . This is the only reason I can see that such a letter [the June 5 letter of discharge ] would be written." Although on June 4, 1964, Howe had caused damage to a truck by driving it off a paved surface in violation of the Company 's rule against such action , another event of significance also occurred on that date. On June 4 the hearing in the representa- tion proceedings , Case No. 12-RC- 1949, was concluded . At that hearing the Com- pany had entered into a stipulation with the Union agreeing to exclude Howe from any unit of eligible voters upon the ground that he was a supervisor . Thus, had it been Turso 's desire to discharge Howe because of the offensive remarks the latter had made during their May meeting , this might have seemed to Turso or his attorney as the opportune time to take such action without incurring any large risk that by so doing the Company would be accused of violating the Act.13 I find, contrary to the contention of Respondent, that Howe 's breach of the rule regarding driving trucks off paved surfaces was not the sole motivating reason for his discharge . According to Miss Clausen , President Turso had been upset by the remarks made by Howe during his meeting with Howe in May . The letter of dis- charge signed by Turso unmistakably adverts to the incident by giving as the reason for Howe's discharge his participation "in concerted activities in your own behalf and on behalf of the union which seeks to represent rank and file employees." The letter makes no mention whatsoever of Howe's misconduct on the previous day. In the circumstances , I find that a contributing reason motivating Howe's discharge was the reason set forth in the letter of June 5.14 Howe's violation of a company rule the day before his discharge does not exculpate the Company because the "mere existence of valid grounds for a discharge is no defense to a charge that the dis- charge was unlawful , unless the discharge was predicated solely on those grounds." N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 835 (C.A. 7). Respondent discharged Howe because of his conduct in connection with the pres- entation to the Company's president of grievances on his behalf and the behalf of other employees Such activity by Howe, in the circumstances of this case, was within the ambit of rights guaranteed employees by Section 7 of the Act. Howe's discharge , therefore , interfered with, restrained , and coerced Howe and other employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby vio- lated Section 8(a) (1). Furthermore , when discharging Howe Respondent specifically advised him that among the reasons for its action was his concerted activities "on behalf of the union which seeks to represent the rank and file employees ." In these circumstances Howe's discharge constituted a discrimination tending to discourage membership in the Union in violation of Section 8(a)(3) of the Act. 32 Howe testified that several employees desired to speak with Turso concerning their complaints about the conditions of work at the Company Howe suggested that it would not do any good for a group to barge into Turso's office. He recommended to the employees that they should give him notes of their individual grievances and he would then speak with Turso about their complaints. This procedure was followed and Howe had a meeting with Turso at which time he discussed the employees ' grievances and also gave to Turso a list of suggestions and complaints which had been prepared by another employee, Curtis Pike. 18 Although Miss Clausen testified to a conversation between Turso and the Company's attorney regarding Howe, she did not testify that she was present at all conversations between Turso and the attorney. In the absence of any testimonial explanation by Turso or the Company's attorney, the June 5 letter of discharge suggests the possibility, if not probability, that Turso had indicated to the attorney his desire to discharge Howe and that when they thought such discharge could be effected with impunity the action was taken. 14 Clausen's testimony shows that responsible officials of the Company caused the June 5 letter of discharge to be delivered to Howe. Therefore, regardless of the individual personal motives of such officers, the reasons for the Company's action as set forth in the letter bind the Company. Furthermore, absent any denial on the part of President Turso , such letter under his signature must be deemed to represent his reasons for the action taken. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 its operations 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 practicees , I shall rec- ommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent on June 5, 1964 , unlawfully discharged Marvin Louis Howe , Jr., I shall recommend that Respondent offer him immediate and full reinstatement to his former or to a substantially equivalent position without preju- dice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of discharge to the date of Respondent 's offer of reinstatement less his net earnings during such period . The backpay provided herein shall be computed on the basis of calendar quarters , in accordance with the method prescribed in F. W. Woolworth Co., 90 NLRB 289. Interest at the rate of 6 per- cent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The violations of the Act committed by Respondent are potentially related to other unfair labor practices proscribed by the Act and the danger of their commission in the future is to be anticipated from Respondent 's conduct in the past . The preventive purposes of the Act will be thwarted unless the Recommended Order herein is coex- tensive with the threat . In order, therefore , to make effective the interdependent guarantees of Section 7 and to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employ- ees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By discriminating in regaid to the hire and tenure of employment of Marvin Louis Howe , Jr., thereby discouraging membership in the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 2. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. 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 foregoing findings of fact and conclusions of law, and upon the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent , Tursair Fueling, Inc., its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or assistance to Freight Drivers, Warehousemen and Helpers , Local Union No. 390, an affiliate of International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America, or any other labor organ- ization , by discharging any of its employees or in any other manner discriminating against any of its employees in regard to their hire, their tenure of employment, or any term or condition of their employment. (b) In any like or related manner interfering with , restraining , or coercing its employees in the exercise of their rights to self-organization, to form , join, or assist any labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. TURSAIR FUELING, INC. 279 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer Marvin Louis Howe, Jr., immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suf- fered by reason of Respondent's discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and to its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records, and all other records relevant to a determination of the amount of backpay due to said employee (c) Notify Marvin Louis Howe, Jr., it 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. (d) Post at its place of business at the Miami International Airport, Miami, Florida, copies of the attached notice marked "Appendix." 15 Copies of such notice, to be furnished by the Regional Director for Region 12, shall, after being duly signed by an authorized representative of Respondent, be posted upon receipt thereof, and be maintained by it for a period of 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 said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.16 15 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in or assistance to Freight Drivers, Warehousemen and Helpers, Local Union No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging any of our employees, or in any other manner discriminating against any of our employees in regard to their hire, their tenure of employment, or any term or condition of their employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Marvin Louis Howe, Jr., immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of our discrimination against him. TURSAIR FUELING, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Marvin Louis Howe, Jr., if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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. 'Employees may communicate directly with the Board 's Regional Office, Room 826, 51 SW . First Avenue , Miami, Florida, Telephone No. 350-5391 , if they have any questions concerning this notice or compliance with its provisions. Frank C. Varney Co., Inc. and Printing Specialties and Paper Products Union No. 447, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO Case No. 02- CA-1745. February 26, 1965 DECISION AND ORDER On November 4, 1964, Trial Examiner Arthur E. Reyman issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed cross-exceptions to the Decision, a supporting brief, and a motion to strike certain of Respondent's exceptions.' The Respondent also filed an answering brief in opposition to cross exceptions. 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 Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the fol- lowing additions and modifications : On the basis of the credited testimony of employees Marshall and Gill, the Trial Examiner found that Respondent's President Frank C. Varney coercively interrogated these two employees in early August 1963. However, the Trial Examiner's findings do not reflect all of Gill's testimony bearing on his discussion with Varney. Thus, Gill testified that, after urging him (Gill) not to "go along" or 1 This motion is denied, for we find that the exceptions challenged adequately comply with the Board's requirements . Cf. Patrick F..Izzi, d /b/a Pat Izzi Trucking Company, 149 NLRB 1097. 151 NLRB No. 38.