ABC Body Works, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1973

201 N.L.R.B. 833 (N.L.R.B. 1973)

ABC BODY WORKS, INC. 833
ABC Body Works, Inc. and Local 810, Steel, Metals,
Alloys & Hardware Fabricators & Warehousemen,
Affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 29-CA-2422
February 13, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On May 25, 1972, Administrative Law Judge'
Eugene E. Dixon issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and counsel for the General
Counsel filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
As fully set forth in his Decision, the Administra-
tive Law Judge concluded that employee Nicholas
Shevchuk's discharge was motivated by antiunion
consideration and thus in violation of Section 8(a)(3)
of the Act. On the facts before us, we do not agree
with this conclusion.
The record reflects the following facts. Shevchuk,
an employee of 11 years' tenure with Respondent,
worked in Respondent's metal shop as a metal man.
Categorized as a mediocre worker by his supervisor,
Shevchuk would often abandon his work assign-
ments for short periods of time and "disappear" from
his work area. When found, he often had the smell of
liquor on his breath. Although he was never actually
seen drinking on the job, circumstances were such as
to suggest that he concealed cans of beer in
proximity to where he worked. Prior to his discharge,
there were occasions when he asked to be excused
from work because of his drinking and when
Respondent sent him home for being drunk. As a
result of these circumstances, his time record
indicated fewer working hours than his fellow
employees in the same classification.
On numerous occasions, Shevchuk had been
warned about leaving the shop on working time, the
most recent time before his discharge in June being
in February 1971. The record indicates that after an
absence from the shop on this occasion, Respon-
dent's supervisor, Scotti, told Shevchuk, "If you leave
the shop anymore, that's going to be the end of it
because it has been too many times."
On June 7, Shevchuk had been assigned work on
an oil truck in the rear of the shop. George Mallozzi,
foreman of the metal shop , came to Scotti at about
11:15 a.m. to inquire as to the whereabouts of
Shevchuk as he was not at his work assignment.
According to Scotti, he could not find Shevchuk, and
upon hearing that Shevchuk had gone out the back
door, Scotti went looking for him. Scotti found
Shevchuk sitting in a bar one block from the plant
talking with Robinson , the union representative. To
Scotti's inquiry as to what Shevchuk was doing at the
bar, Shevchuk replied , "I am finished." Scotti then
walked back to the shop and told the foreman that
Shevchuk was down at the bar . Upon discovering
that Shevchuk's timecard had not been punched out,
Scotti testified that he put 11:45 on the card-that
Shevchuk was finished as of then as he intended to
lay him off.
On returning to the plant, Shevchuk saw that Scotti
had written " 11:45 a.m." across the face of his
timecard. Without making any inquiry as to what it
meant or disputing the time entered on it , Shevchuk
changed his clothes and left for the day.
The following morning Scotti told Shevchuk that
he was fired, that he knew why, and that he had been
warned many times . Not responding, Shevchuk
smiled, walked into the shop, picked up cans of beer
that he had hidden, and sat on a box in front of the
shop drinking the beer.
On the facts as set forth above, we find insufficient
evidence that Respondent was motivated by antiun-
ion considerations in discharging Shevchuk. The
record reflects employee Shevchuk's trend of repeat-
ed absences from his post during working hours.
Moreover, there is evidence to support the fact that
these absences were often the result of excessive
drinking and that Shevchuk had been warned against
leaving his work assignments.
In finding an 8(a)(3) violation here, the Adminis-
trative Law Judge found that the discharge stemmed
from the fact that Shevchuk attended a union
meeting away from the plant after hours on June 7
and that Scotti did not really intend to discharge
Shevchuk as of 11:45 a.m. on that day, but intended
to treat the matter as it had been handled in the past.
As the Administrative Law Judge finds, there is no
direct evidence to show that Respondent had
knowledge of the June 7 meeting. We do not agree
with the Administrative Law Judge's reliance on the
small plant doctrine to prove knowledge of Shev-
chuk's attendance at this meeting in the circum-
' The title of '*Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
201 NLRB No. 100
834 DECISIONS OF NATIONAL
stances of this case. The evidence does disclose that
Shevchuk's connection with the Union dates back to
January 20, 1971, when he signed a union authoriza-
tion card on the occasion of a visit to the union
offices. We conclude, however, that, despite Shev-
chuk's interest in the Union, Respondent did not
have an antiunion motive in discharging Shevchuk as
the facts indicate that Respondent discharged Shev-
chuk because of his habitual absence from the plant
during working hours and his conduct as detailed in
the Administrative Law Judge's Decision. Further,
we note that, although other coworkers were active in
the Union, Shevchuk was the only union member
fired by Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
ABC Body Works, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with a shutdown or
other reprisals if they chose to be represented by a
union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist Local 810, Steel,
Metals, Alloys & Hardware Fabricators & Ware-
housemen, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
engaging in such activities.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Post at its place of business in Brooklyn, New
York, copies of the attached notice marked "Appen-
dix."2 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
LABOR RELATIONS BOARD
what steps the Respondent has taken to comply
herewith.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with a
shutdown or other reprisals if they choose to be
represented by a union.
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 labor organizations, to join or assist any
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all
such activities.
All of our employees are free to become or remain,
or refrain from becoming members of Local 810,
Steel Metals, Alloys & Hardware Fabricators &
Warehousemen, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America or any other labor organiza-
tion.
ABC BODY WORKS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, 16 Court Street,
Brooklyn, New York 11201, Telephone 212-
596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DixoN, Trial Examiner : This proceeding,
brought under Section 10(b) of the National Labor
ABC BODY WORKS, INC. 835
Relations Act, as amended (61 Stat. 136), herein called the
Act, was heard at Brooklyn, New York, on February 9,
1972. The complaint, dated August 31, 1971, was based on
duly served charges filed June 10, 1971, by Local 810,
Steel, Metals, Alloys & Hardware Fabricators & Ware-
housemen, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and was issued by the Regional Director for
Region 29 (Brooklyn, New York) of the National Labors
Relations Board on behalf of its General Counsel, herein
called the Board and the General Counsel.
The complaint alleges that Respondent had engaged in
and was engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act by discharging and
failing to reinstate its employee Nicholas Shevchuk
because he joined and assisted the Union and engaged in
other concerted activity for the purpose of collective
bargaining and mutual aid and protection, and by
threatening to close its business if the employees joined or
assisted the Union.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all times material Respondent has been a corporation
duly organized under and existing by virtue of the laws of
the State of New York and has maintained its principal
office and place of business in the Borough of Brooklyn,
city of New York, where it is and has been engaged in the
repair and painting of truck bodies. During the year 1970,
which period is representative of its annual operations
generally, Respondent in the course and conduct of its
business operations performed services valued in excess of
$500,000 of which services valued in excess of $50,000 were
performed for various enterprises including Getty Oil
Company and Gulf Oil Company each of which enterpris-
es annually purchases goods and materials valued in excess
of $50,000 directly from outside the State of New York. At
all times material Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 810, Steel, Metals, Alloys & Hardware Fabricators
& Warehousemen, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America at all times material has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The main issue here is whether or not Nicholas Shevchuk
(an employee of some 11 years tenure with Respondent)
was discharged on June 8 , 1971, because he joined and
assisted the Teamsters Union.
According to Shevchuk' s testimony sometime around
October 1969 someone had written "Join the AFL-CIO"
on the shop walls and Respondent's Secretary Bruno Scotti
(in the hearing of Shevchuk) profanely indicated to another
employee that Scotti would like to catch the writer and
break his neck.' Shevchuk turned to Scotti and said,
"That's right." Scotti asked Shevchuk what he meant.
Shevchuk replied, "That's right we need a union."
On January 20, 1971, Shevchuk signed a union authori-
zation card on the occasion of a visit to the union offices.
On the following day Union Representative James Robin-
son came to Respondent's shop about 6:45 a .m. to hand
out literature at the entrance used also by management.
Robinson was there until 8 a .m. About 8: 15 that same
morning, according to Shevchuk's testimony , Respondent
President Arthur Falco called Shevchuk over to him as
Shevchuk was walking to his work and in the presence of
Scotti put his arm around Shevchuk and said , "Nick, I
want to tell you something . If I ever get a union in here, I
am closing up the shop." Shevchuk asked, "Where do you
come to think it's me?" Falco replied , "I heard ." Shevchuk
asked who told Falco. Falco refused to disclose his
informant saying he didn't have to tell.2
Later on that same day Respondent 's treasurer, Henry
Schoettmer, came over to Shevchuk and they engaged in a
conversation about the Union. When Shevchuk contended
that the men should have a union Schoettmer replied that
he did not need a union, that he had his money made and
would "Close up."3 According to Shevchuk 's further
testimony, up to this time he had always had men to assist
in his assignments. But from this point Respondent began
assigning him jobs requiring assistance to do on his own.
When Shevchuk asked his supervisors for help he was told
that all the men were busy.
Union Representative Robinson continued to appear at
the shop to distribute cards and literature and Shevchuk
saw him each day that he so appeared (some 18 to 20
times) and stood with him and spoke to him on such
occasions .4 These conversations were observed by Falco
and Scotti. Apparently at the time he signed his union card
Shevchuk was given some blank cards which he placed in
his locker where they sat untouched until his discharge.
According to Shevchuk there was a wire screening in the
front of the locker about 12 inches by 12 inches through
which it would be possible to see the cards.
Respondent's scheduled lunch period is from 12 noon to
12:30 p.m. However , a lunch wagon appears daily at the
shop sometimes arriving as early as 11:45 a .m. at which
time the employees cease working to go out and buy their
lunch from the wagon . On June 7 , according to Shevchuk's
testimony, the lunch wagon arrived about 11:50 a.m. at
which time the men quit working . Shevchuk also quit at
i In his testimony Shevchuk admitted he had written some of the graffiti . 7 Schoettmer did not testify ; thus Shevchuk 's testimony in this respect
On his part, Scoth testified that he had heard that Shevchuk h;d done so. stands undenied in the record and is credited.
2 Falco did not testify; but Scotti, as will be seen in more detail , denied 4 Other employees also stood and talked with Robinson on such
that such a conversation between Shevchuk and Falco took place in his occasions.
presence . For reasons that will appear I credit Shevchuk here.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11:50 and went to Nick's Caddy Inn, a bar near
Respondent's shop, to buy a pack of cigarettes.5 At the bar
Shevchuk saw Robinson and they sat together at the bar
talking . Shevchuk drank nothing and Robinson drank a
coca cola . About 11:55, while they were conversing, Scotti
appeared in the doorway about 15 to 20 feet away (the bar
was well lit) and hollered, "Nick, are you finished for the
day?" Shevchuk said that he was and Scotti walked away.
Shevchuk thereupon left the bar and without eating any
lunch returned to the shop about 12:10 p.m. There he
looked at the timecard rack and found that his card was
not punched out but was marked "11:45" in pencil by
Scotti-a novel occurrence since never before had Scotti
made a notation on Shevchuk 's timecard on the numerous
occasions that he was missing . Figuring that he was
deemed to be through for the day Shevchuk washed up and
left the premises.
At 5:30 or 6 o'clock that afternoon Shevchuk attended a
meeting with Union Representative Robinson and some
eight other of Respondent's employees. The meeting was
held at a social club located about a block from
Respondent's shop. The employees had been notified of
the meeting by Shevchuk on June 3 and also on June 7
either in the morning at the shop or during lunchtime.
The next day on June 8, Shevchuk reported for work
about 6:45 a.m. When he arrived he found that his
timecard was not in the rack and the porter informed him
that Scotti had his card and that Shevchuk was fired.
Shevchuk waited until Scotti arrived at 7:45 and asked
Scotti if he was discharged . Scotti said that he was and
Shevchuk asked why. Scotti replied, "You know why. I
warned you many times." Shevchuk claimed that he was
being discharged because Scotti knew about the union
meeting. Scotti only looked at Shevchuk and then walked
away.
According to Shevchuk's further testimony he had never
been spoken to about his drinking except on two occasions
in 1969-one when he was seen having a beer during
coffeebreak on a hot summer day and another occasion
when Scotti accused him of being drunk and sent him
home after an argument with a coworker. On the first
occasion Falco told Scotti that they had to keep an eye on
Shevchuk because he had seen him at the bar. According
to Shevchuk, Falco said this in a friendly way and winked
at him. As for the second occasion Shevchuk contended
that he had not been drinking that day at all.
Shevchuk denied that he ever kept beer in the shop and
claimed that on occasion he drank beer with Scotti in the
shop. At the time of Shevchuk's discharge there were about
45 employees in Respondent's organization some 20 of
which were employed in the metal shop where Shevchuk
worked. Although Scotti claimed that Shevchuk was a
mediocre worker, the fact is that he was one of the highest
paid men in the shop. Moreover, as noted, his tenure with
Respondent covered an 11-year span.
According to the undenied and credited testimony of
Scotti, in February 1971 about 9:30 one morning Shevchuk
5 In order to get to the bar Shevchuk had to go nght by the restaurant
(where he usually ate lunch) that sold cigarettes over the counter. His
explanation for going to the bar for his cigarettes was that they were
cheaper there out of a vending machine . When cross-examined about this
matter he emphasized that his sole object in going to the bar was to buy
was missing from the job. Scotti searched everywhere for
him including the bathroom . Finally Shevchuk appeared
coming from around the back of a truck. Scotti asked
Shevchuk where he had been. Shevchuk claimed he was in
the bathroom . Scotti said he had "looked in the bathroom
... called all around the shop ." He then warned Shevchuk
"If you leave the shop anymore , that's going to be the end
of it . Because it's been too many times ." Scotti further
testified that similar absences had been indulged in by
Shevchuk "quite a few times" during the past couple of
years and that frequently on these occasions he could smell
liquor on Shevchuk 's breath . Scotti also described how
about some 25 times over the years he saw Shevchuk
making unusually frequent trips to the bathroom and how
on one occasion he found cans of beer stashed inside the
toilet water tank. This was some 3 years prior to the
discharge.
On June 7, according to Scotti 's further testimony, about
11: 15 a.m. Shevchuk's foreman , George Mallozzi, came to
Scotti looking for Shevchuk . Together they went to the
shop looking for him and were informed by someone in the
stockroom that Shevchuk had gone out the back of the
shop . Knowing that Shevchuk "hangs out . . . all the time"
at Nick's Caddy Inn located about a block from the shop
Scotti told Mallozzi that he was "going down the corner
and see if [Shevchuk ] is down in the bar." From the door
of Nick's Caddy Inn Scotti saw Shevchuk sitting at the bar
with his back to the door holding a glass on the counter in
front of him and asked , "Nick, what are you doing here?"
Shevchuk said , "I am finished ." Scotti, "You are finished?"
And not wanting to argue there said "Alright," and
returned to the shop. According to Scotti at this time the
lunch wagon had not yet arrived at the shop. Scotti
described his actions after leaving the bar as follows:
I came back to the shop , and I told the ' foreman he was
down at the bar. He was drinking at the bar, or he was
sitting at the bar. And I said let me check his card. He
said he was finished. So I checked his card . He hadn't
punched his card out . This was about , I looked at the
time, it was twenty to twelve, so I gave him the benefit
of the doubt and I put 11:45 on his card , because he
was finished as of then . I intended to lay him off.
Scotti did not see Shevchuk the remainder of the day. The
next day Scotti came in early for the express purpose of
terminating Shevchuk . About this he testified as follows:
I told him, I says, "Nick , you are through ." I says,
"That's too many times now. That 's the end." So he
said, "What for?" I said , "You know what for. I warned
you in February. I warned you many times before, and
this is the limit." I says, "That 's the finish." . . . He
didn't say nothing, he just smiled, he got up, no he just
smiled. He got up, he walked into the shop, picked up
his cans of beer that he had hidden in the trucks ...
and he brought them outside . He sat on a box and he
started to drink his cans of beer.
According to Scotti 's further testimony, during the 2-
year period before Shevchuk 's discharge Scotti had sent
cigarettes. He was then confronted with his testimony before the New York
State Referee where he had testified that he had gone to the bar to meet a
union delegate. His explanation was that the referee had "misinterpreted"
what he had said.
ABC BODY WORKS, INC. 837
him home eight or nine times for being drunk . On some of
these occasions the initiative to leave was taken by
Shevchuk himself. The evidence also reveals that it was a
regular practice on the part of Respondent to lend
Shevchuk money between paydays.
In his further testimony Scotti admitted that some 2
years past, he had asked one of the employees who had
written prounion comments on the wall and stated to him
that he would "like to get the fellow who is defacing the
walls all over the place ." But Scotti denied that he used any
profanity in his comments and denied making them in the
presence of Shevchuk . He also denied ever talking to
Shevchuk about his union activities or threatening Shev-
chuk or any other employee with discharge for union
activities . Scotti also denied that he ever witnessed Falco
putting his arm around Shevchuk and telling him he would
close the shop if the union came in by testifying, "If that
happened , it happened without my knowledge, because I
can't see Arthur putting his arm around a fellow and I was
not at that-never heard any-I was not in the presence of
any conversation like that ." Summing up his reasons for
firing Shevchuk he testified that he discharged Shevchuk
"for being off his work. When he was supposed to be
working, supposed to be on his job, he was down the bar
drinking, and after repeated warnings throughout the
years. I finally gave up."
On cross-examination Scotti testified that throughout
Shevchuk's employment from 1963 or 1964 he found
Shevchuk missing from his work 25 to 30 times; that
Shevchuk's beer drinking dated back to the beginning of
his employment and that about 15 times he found beer in
trucks that Shevchuk was working on but that he never
actually saw him drinking beer on the job except one some
4 or 5 years previously. He also denied seeing Union
Representative Robinson at the bar with Shevchuk .6
According to Scotti's further testimony, from January 7
to the time of his discharge Shevchuk came back from
lunch 10 or 15 times with liquor on his breath and his eyes
would be "glassy." Moreover, according to Scotti, during
the 11 years of Shevchuk's employment there were perhaps
a 100 occasions upon which he was glassy eyed from dunk.
During none of this time was Shevchuk ever laid off.
Instead he was just sent home.
Conclusions
First, as promised, a word about credibility. There is no
question that Shevchuk's credibility was not enhanced by
the transparent reason he gave for going to Nick's Caddy
Inn on June 7 which I find, in accordance with the
testimony he gave in the unemployment compensation
hearing, was to meet the union representative. On the other
hand , Scotti 's testimony did not strike me as a shining
example of forthrightness and objectivity either. It strains
credulity to believe that an employer would have tolerated
an employee who became "glassy eyed" from dunk 50
times let alone 100. Along this line, I wonder just what kind
of beer and how much of it was required to make a man
engaged in a strenuous physical activity "glassy eyed."
Also questionable is how Scotti could see that Shevchuk
had a glass in his hand when he was sitting at the bar with
his back to Scotti . And if Scotti's perception was so good
why wasn't it also good enough to enable him to see
Robinson at the bar with Shevchuk . Gable, who presuma-
bly had less reason to notice Robinson since he was not
looking for Shevchuk , apparently had no difficulty in
seeing him.
Apart from the relative reliability of the two witnesses,
however, is the plausibility of Shevchuk's testimony. As the
General Counsel points out and as it appeared to me
Shevchuk was a "simple minded" individual who just was
not clever enough to dress up his story with little touches
like having Falco put his arm around Shevchuk's shoul-
ders . Moreover, with another official of Respondent
making a threat to close down it is not too much to expect
one of the same from Falco . It follows and I find that both
Schoettmer's and Falco's threats to close the shop if a
union came in interfered with , restrained, and coerced
employees in violation of Section 8(axl) of the Act.
As for the main issue in the case , at first glance it has the
appearance of a typical pretext discharge . Here is a man
who has worked for Respondent 11 years all during that
time having what must be considered egregious shortcom-
ings tolerated by Respondent . Then he gets interested in a
union , his shortcomings suddenly become unbearable and
bingo out he goes. But with Shevchuk's connection with
the Union dating back to January , Respondent contends
that if it had an antiunion motive to rely on a pretext to
discharge Shevchuk it had plenty of opportunity to do so
long before June. Instead of doing so Respondent
demonstrated its goodwill toward Shevchuk by continuing
to lend him money during that period.
There is some validity to Respondent's contention but its
argument cuts both ways. According to Scotti's testimony
from January to June 1971 Shevchuk came back to work
from lunch 10 to 15 times "glassy eyed" from drink.
Obviously a good number of these occasions must have
occurred after Shevchuk had been given his warning. The
question is why Respondent did not terminate Shevchuk
until June 8. The answer to this question , I believe, lies in
Shevchuk's meeting with Robinson at the bar on June 7
and the union meeting that took place that evening.
There are many varieties of antiunion employers, some
with knee jerk opposition to unions-others with more
relaxed and sophisticated approach. Here , as I see it,
Respondent apparently did not feel so threatened at the
early stages of the Union 's campaign to think it necessary
to take any affirmative counteraction . As Scotti explained
in his testimony, employees would talk one day in favor of
the union and the next day against . But by June the Union
obviously began to make some headway in its campaign as
evidenced by the meeting the night before Shevchuk's
discharge attended by some eight or nine employees.
In my opinion it is this meeting and the circumstances
surrounding the discharge that blow the whistle on
Respondent . Thus, if Scotti really intended to discharge
Shevchuk as of 11:45 a.m . on June 7 why didn ' t he do it
that day instead of waiting until the following morning? I
6 Robert Gable , Respondent's vice president in charge of administration , informed Falco and Schoettmer and possibly Scotti later that day.
testified that he saw Robinson at the bar with Shevchuk and that he so
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that it was because at 11:45 he did not intend to
discharge Shevchuk but to treat the matter as he had
repeatedly treated it for years. But later that day he learned
of the union meeting and knowing of Shevchuk's prounion
position and having been informed by Gable that Shev-
chuk had met with Robinson that noon, decided that for
these reasons, perhaps among others,7 it was time to
eliminate Shevchuk.
I realize that there is no direct evidence to show that
Respondent had knowledge of the June 7 union meeting.
But in the circumstances we have here, the small size of
Respondent's shop, the nearness of the meeting to
Respondent's premises, and the timing of the discharge so
soon after the meeting permit an inference that Respon-
dent had knowledge of the meeting and that it played a
significant part in triggering Shevchuk's discharge. I draw
that inference and find that his discharge was in large
measure motivated by antiunion consideration and thus in
violation of Section 8(aX3) of the Act. N.LR.B. v. The
Pembeck Oil Corporation, 404 F.2d 105 (C.A. 2); A. J.
Krajewski Manufacturing Co., Inc. v. N.LR.B., 413 F.2d
673 (C.A. 1); N.LR.B. v. Joseph Antell, Inc., 358 F.2d 880
(C.A. 1); Midland Container Corp., 190 NLRB No. 67.
and other rights and privileges, and make him whole for
any loss of earnings he may have suffered by payment to
him of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge
to the date of an offer of reinstatement , less net earnings
during said period, with backpay computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294, including
interest as held in Isis Plumbing & Heating Co., 138 NLRB
716.
I shall also recommend that Respondent preserve and
make available to the Board, upon request, payroll and all
other records necessary to facilitate determination of the
amount due under this recommended Order.
In view of the nature of the unfair labor practices
committed, I am of the opinion that the commission of
similar unfair labor practices may be reasonably anticipat-
ed, I shall therefore recommend that Respondent be
ordered to cease and desist from infringing in any other
manner upon the rights guaranteed its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
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 certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged Nicholas
Shevchuk for engaging in activity protected by the Act, I
will recommend that Respondent be ordered to offer him
immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority
CONCLUSIONS OF LAW
1. ABC Body Works, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 810, Steel , Metals, Alloys & Hardware
Fabricators & Warehousemen, Affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(aXl) of the Act.
4. By discharging Nicholas Shevchuk because of his
union membership, sympathies, and activities thereby
discouraging membership in the aforesaid labor organiza-
tion, Respondent has engaged in unfair labor practices
within the meaning of Section 8(aX3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
T Even though Respondent may have had a valid cause to discharge the Act and a violation of Sec. 8(aX3) thereof . N.LR B v. Whitfield Pickle
Shevchuk , if antiunion considerations played any part in the motivation for Company, 374 F.2d 576, 582 (C.A. 5).
the discharge , it must be considered discriminatory within the meaning of