American Petrofina Co., Texas

National Labor Relations Board - Board Decisions

Jan 9, 1980

247 N.L.R.B. 183 (N.L.R.B. 1980)

AMERICAN PETROFINA COMPANY OF TEXAS
American Petrofina Company of Texas and Oil,
Chemical and Atomic Workers International
Union, AFL-CIO. Case 16-CA-8111
January 9, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On August 20, 1979, Administrative Law Judge
William J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed limited cross-exceptions and 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 and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Acts, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Ameri-
can Petrofina Company of Texas, Dallas, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraphs l(b) and
I(c):
"(b) Denying wage increases to employees, refusing
to transfer employees to available positions in other
departments, or discharging or otherwise discriminat-
ing against employees with regard to hire or tenure of
employment or any term or condition of employment
for engaging in activities on behalf of a labor organiza-
tion or for engaging in activity protected by Section 7
of the Act.
"(c) In any like or related manner interfering with,
restraining, or coercing employes in the exercise of the
rights guaranteed them by Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Joseph Rio immediate and full reinstate-
ment to his former position of employment, dismiss-
ing, if necessary, anyone who may have been hired or
assigned to perform the work that he had been
performing prior to September 15, 1978, or, if his
247 NLRB No. 15
former position no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges; grant him the $47-per-
month wage increase that was denied him at the
beginning of the third calendar quarter of 1978; afford
him the opportunity to transfer to an available
position in another department for which he is
qualified should he so desire at the time he is
reinstated; and make him whole for any loss of pay he
may have suffered as a result of the discrimination,
with interest, in the manner set forth in the section
entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. t is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. we also find no evidence to
support Respondent's allegation that the Administrative Law Judge was
prejudiced against Respondent.
: We find that the broad cease-and-desist order recommended by the
Administrative Law Judge is not warranted in this case, and that a narrow
order is sufficient to remedy the violations found. See Hickmott Foods, Inc..
242 NLRB 1357 (1979).
The Administrative Law Judge's affirmative order and notice properly
included a requirement that Respondent offer Joseph Rio. the discriminatee,
the opportunity to transfer to a position in another department for which he is
qualified should he so desire at the time he is reinstated. However, as Rio is
entitled to transfer only to those positions in other departments that are
available, we shall modify the recommended Order and notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity.
WE WILL NOT interrogate employees regarding
their sympathies toward Oil, Chemical and
Atomic Workers International Union, AFL-
CIO, or any other labor organization.
WE WILL NOT refuse to grant employees wage
increases, or refuse to transfer employees to
available positions in other departments, or dis-
charge or otherwise discriminate against employ-
ees with regard to hire or tenure of enmployment
or any term or condition of employment for
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in activities on behalf of Oil, Chemical
and Atomic Workers International Union, AFL-
CIO, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer Joseph Rio immediate and full
reinstatement to his former position, dismissing,
if necessary, anyone who may have been hired or
assigned to perform the work which he had been
performing prior to the time that he was termi-
nated on September 15, 1978, or, if that position
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges, and make him whole
for any loss of pay he may have suffered as a
result of our discrimination, with interest.
WE WILL grant Joseph Rio the $47-per-month
raise that he would have received at the beginning
of the third calendar quarter of 1978 but for our
discrimination, and make him whole for any loss
of pay he may have suffered as a result of our
discrimination, with interest.
WE WILL afford Joseph Rio the opportunity to
transfer to an available position in another
department for which he is qualified should he so
desire at the time that he is reinstated.
AMERICAN PETROFINA COMPANY OF
TEXAS
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Fort Worth, Texas, on
March 12-14, 1979. On November 16, 1978,' the Regional
Director for Region 16 of the National Labor Relations
Board issued a complaint and notice of hearing, based on an
unfair labor practice charge filed on September 27, alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq., herein
called the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record,' the
briefs filed on behalf of the parties, and my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, American Petrofina Company of
Texas, herein called Respondent, has been a corporation
duly organized under and existing by virtue of the laws of
the State of Delaware, and has been doing business in the
State of Texas, with offices in Dallas, where it has been
engaged in the petroleum exploration and refining of
gasoline and other petroleum products. During the 12-
month period preceding issuance of the complaint, a
representative period, Respondent sold goods valued in
excess of $50,000 directly to customers located outside the
State of Texas. Therefore, I find, as admitted in the answer,
that at all times material, Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Oil Chemical and Atomic Workers
International Union, AFL-CIO, herein called the Union,
has been a labor organization within the meaning of Section
2(5) of the Act.
IIIll. ISSUES
The principal issues in this case involve retail credit
representative Joseph Rio. Specifically, it is alleged that
Respondent violated Section 8(a)(3) and (1) of the Act by
denying him a wage increase on July 10, by denying him a
transfer to another department on July 20, and by terminat-
ing him on September 15. The complaint further alleges that
Respondent violated Section 8(a)(1) of the Act as a result of
interrogation of an employee by Senior Vice President John
MacKenzie on July 20 and by virtue of Assistant Retail
Credit Manager James Bryan's August 24 comment that an
employee had lost any opportunity for advancement because
he had engaged in activity protected by the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Rio commenced working for Respondent on August 25,
1975. He was employed continously thereafter by Respon-
dent until he was terminated on September 15. At all times
he had been classified as a retail credit representative,
working in Respondent's retail credit department. To the
extent pertinent in this proceeding, Rio's duties had involved
handling past due accounts. He attempted to collect
amounts which were owed by customers and when unsuc-
cessful in those endeavors, was responsible for preparing the
accounts for referral elsewhere for collection. In addition,
Rio had been charged with responsibility for initiating
change orders. This involved making changes on overdue
accounts, principally by changing the amount owed on one
account to another account. For example, the amount owed
' Unless otherwise stated, all dates occurred in 1978.
' The General Counsel's unopposed motion to correct largely obvious
typographical errors is hereby granted.
184
AMERICAN PETROFINA COMPANY OF TEXAS
by a retail customer would be changed to the account of the
jobber who had sold the merchandise or service to that retail
customer.
Normally, Respondent employs seven or eight retail credit
representatives in the retail credit department. The accounts
handled in that department are divided into cycles, with one
cycle assigned to each of the retail credit representatives.
They are subject to the immediate supervision of senior retail
credit representatives, who, in turn, report to Assistant
Retail Credit Manager Bryan and to his superior, Retail
Credit Manager Charles Ladd Smith. Above them is
General Credit Manager Lloyd W. Brooks who is responsi-
ble to Senior Vice-President John MacKenzie.' During 1978,
Rio had been subject to the immediate supervision of Senior
Retail Credit Representative Robert Iden until June when
Sue Davis succeeded Iden. During the last few weeks of his
term as senior retail credit representative, Iden had been
occupied with other duties and, further, during the first few
weeks of her term as senior retail credit representative, Davis
had been training her replacement. Accordingly, during
these periods, another senior retail credit representative,
Charles Bloomquist, had helped out by supervising the work
of the retail credit representatives, including Rio, for whom
Iden and then Davis had been nominally responsible.
Rio had been among the employees who, in December
1976, had contacted the Union regarding representation of
Respondent's office employees. Subsequently, the Union
filed a petition for a representation election, but a substantial
majority of the employees voted against representation in the
election conducted on August 4, 1977. Thereafter, no further
activity was conducted by Rio or by any other office
employee to obtain representation by the Union.' During the
campaign Rio had been the most active of the employees, so
far as the record discloses, on behalf of the Union. Thus, he
had been a member of the Union's in-plant committee, had
distributed and posted the Union's literature, had worn one
of the Union's buttons for the duration of the campaign, had
solicited signatures from a number of employees on authori-
zation cards, had served as a conduit for return to the Union
of cards solicited by other employees, had spoken out in
favor of the Union, had been one of the employees who had
accompanied the Union's contingent to the preelection
representation hearing, and had been one of the two
employees who had served as observers for the Union at the
representation election.
Rio's role in the Union's campaign did not escape
Respondent's attention. On the day following a union
meeting in February 1977, Iden questioned Rio concerning
what had occurred at that meeting and pointed out to Rio
that Smith "holds your future in his hands," accompanying
this comment with the gesture of cupping his hands and then
opening them as if to show something dropping out. During
the following month, Iden again questioned Rio about what
had happened at another meeting conducted by the Union.
In May, Smith took Rio aside and, saying that he knew that
' It is admitted that each of these officials had been supervisors within the
meaning of Sec. 2(1 ) of the Act at all times matenal herein.
' However. Respondent and the Union did not remain strangers, for the
latter represents approximately 20 employees in a production unit at
Respondent's Wichita Falls facility and approximately 400 employees in a
refinery and pipeline unit at Respondent's facility in the Port Arthur area.
' These are accounts with unpaid balances exceeding 1,000. Such accounts
Rio had been "heading up the union activities," admonished
Rio not to engage in union activities "on American Petrofina
time," but to confine such activities to breaktime, lunchtime,
and after hours. Such conversations did not end with the
Union's loss in the election. On the following day Iden said
that because of Rio's "union activities and because of the
way I got so involved in the union, that my future with the
company was at an end and that I was probably as far as I
was ever going to go with American Petrofina."
B. The Denial of Rio's Wage Increase
In February Rio was granted a wage increase. Both Smith
and Assistant Manager of Employee Relations Edward M.
Dennis testified that the increase had been automatic and
had not been based on merit. However, after the February
increases had been granted, Respondent changed its policy
so that discretionary increases would be granted at the
commencement of the calendar quarter during which em-
ployees' anniversary dates fell. For example, Rio, who had
been hired during the month of August, became eligible for
an increase in July.
As stated above, although Davis had become Rio's
immediate supervisor in June, Bloomquist had continued
serving as Rio's immediate supervisor while she trained a
replacement for the position which she had vacated. Not
until late June did Davis conduct her first review of Rio's
$1,000 accounts.' This review, she testified, disclosed that
"there were somewhere between 30 and 35 accounts that
were brought in for review, totaling more than $70,000, and
that was the largest amount that I had reviewed of the four
cycles that I supervised." Further, testified Davis, in
examining the workcards' in each of the files, she had
ascertained that Rio had been given written instructions, by
the senior credit representative and assistant credit manager,
to do certain things that had never been done. Of course,
both Iden and Bloomquist had directly supervised Rio and,
accordingly, would have been in the best position to testify
concerning whether Rio had disregarded their instructions
prior to Davis becoming his immediate supervisor. However,
neither of them was called to corroborate Davis' assertion
that, in essence, Rio had been disregarding their instruc-
tions. Nor was the failure to call them explained. Moreover,
while Assistant Credit Manager Bryan did appear as a
witness for Respondent, he did not testify that he had given
Rio instructions concerning $1,000 accounts that had been
disregarded.
According to Davis, when she had completed her review
of Rio's $1,000 accounts, she had "showed him the things
that I had found where prior notes had been made that I
could not find that the work had been done." Although Rio
agreed that Davis had reviewed some of his $1,000 accounts
with him, he testified that she had shown him only four or
five accounts during their meeting. He acknowledged that he
had merely listened, without saying anything in response, to
are normally processed by the retail credit representatives and reviewed by the
senior credit representatives at 15-day intervals. Smith testified that each
retail credit representative handles probably 30 to 40 of these accounts in a
month.
' In essence, these are file cards on which the progress f accounts is
recorded.
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what Davis had been saying to him. Conversely, she
acknowledged that she had not specifically asked him for
explanations concerning the matters that she had raised
during the course of their conversation. Davis did testify
that following the meeting she had taken the files to Bryan
and had told him that "I felt like this many $1,000 accounts
that were past due, that they were certainly more than I had
seen on any of the other cycles to that point that I had been
reviewing, and that I felt that it was certainly more than
should have been." Bryan made no mention of Davis having
made these remarks about Rio's handling of $1,000 ac-
counts. In addition, Davis also prepared a written memoran-
dum for Smith in which she detailed her complaints
regarding Rio. There is no evidence that it had been normal
practice for Davis or for any other senior credit representa-
tive to prepare such memoranda. She did not explain why
she had chosen to do so.
In the memorandum, Davis first recited generally that her
review of Rio's $1,000 accounts had disclosed that he had
not been following up on them as instructed, nor "has he
been following the proper collection methods." She then
continued by stating that there had been 30 to 35 accounts
and that of these, "seven (7) accounts totalling $77,355.60
had prior instructions that had not been done or the wrong
collection procedure had been used." The memorandum
then described the accounts which Davis felt had been
mishandled.
For two accounts, according to the memorandum, Rio
had sent a form letter which mentioned a customer request
for an itemized statement when no such request had been
made by the customer.' In one case Rio had reconciled a
past due account in a manner which showed the correct
I Davis conceded that she had based her conclusion that no requests had
been made on the fact that the workcard did not disclose that a request for an
itemized statement had been made. She conceded that this had not precluded
the possibility that such requests had been made by telephone.
' Rio testified that the then senior credit representative had taught him this
method of reconciliation in 1975 and that while Davis' method was an
alternative one that was used, "we had some flexibility as to how to do our
itemized statements and this is the style I used" for 2-% years without
criticism by any senior credit representative prior to Davis. Neither Iden or
Bloomquist was called to refute Rio's testimony in this regard. More
significantly, Davis acknowledged that she was "sure" that it had been
possible that Rio could have been reconciling statements in this manner all
along under different supervisors. She further acknowledged that she did not
know if the difference in procedure had affected the finance charge nor
whether the account had ultimately been paid.
' Davis conceded that because of the need to train the replacement for the
position which she had vacated, July 3 had been the first date on which she
had examined this account and that somebody else had been reviewing it
previously. She did not explain how, in light of this sequence of events, she
had come to issue instructions to Rio concerning this particular account in
June. Rio testified that this had been an account which had caused problems
both for himself and for the previous retail credit representative who had
handled it. Davis claimed that on July 3 Bryan had issued written instructions
for Rio to call the customer's bank to ascertain if the check would now be
honored. Not only did Bryan not corroborate her in this respect, but he made
no mention of any dissatisfaction with the manner in which this particular
account had been handled by Rio. Moreover, the bottom line here is that even
though the check still would not clear, Rio had followed up on the matter and
had made an arrangement whereby Respondent could ultimately obtain its
money without the need to refer the account for collection.
'" Though Davis testified that to her such a statement meant to close the
account unless payment had already been transmitted, Bryan did not testify
what he had meant when he had used the phrase to bring an account "to a
close." Davis admitted that Rio might have construed that phrase differently
than had she. She also testified that she was unable to recall whether she had
told Rio on July 3 of her understanding of that phrase. In fact, while at one
amount owing, but which failed to attribute the shortage to
the precise prior month for which payment had not been
made.' In another instance, wrote Davis, she had asked Rio
on June 20 to call the bank to ascertain if an insufficient
funds check, received earlier from the customer, would now
clear for payment and, if it would not, to finish the collection
letter series prefatory to referring the account to an outside
agency for collection. However, according to the memoran-
dum, by July 3 "the only thing he had done was call the
customer on June 20 and get a promise of $100 now and
$100 each month. As of July 3 there was still no payment." 9
With regard to another account, Davis wrote that as of June
22, Bryan had requested that it be brought "to a close," but
that while Rio had written to the customer on June 22, there
had been no other followup."'° Davis' memorandum also
listed an account owing $43,811.94 for which the records
showed that on May 31 Bryan had issued instructions to
prepare an itemized statement and to have the account
reconciled, but that as of June 30, no itemized statement had
been prepared and the account was then 60 days overdue."
Another account described in the memorandum was one for
which Rio had forwarded nly xerox copies of the work-
cards, rather than the originals, because "he had cancelled
the account and ordered a pickup and cards were with other
cards for '5' letter. I told him this was not the procedure on
$1,000 files and we would need to see the workcard."' The
final account listed by Davis was one where Rio had
assertedly sent the customer a letter which referred to a prior
communication when, in fact, the workcards did not disclose
any prior contact."
In addition to listing her complaints concerning these
specific $1,000 accounts, Davis also stated in her memoran-
point she testified that she had seen Bryan use that phrase in communications
with other credit representatives, she later testified that she had never heard
Bryan tell other credit representatives to bring a problem to a close: "No, I've
never heard him tell anyone that. I know it's a term that is used." Rio testified
that this particular customer had both retail and wholesale accounts, that its
home office in St. Louis, Missouri, paid all bills, and that a check sent to
Respondent to pay the amount owing on the retail account had been credited
to the customer's wholesale account. Rio further testified that there had been
a delay in figuring out how this problem had arisen due to the different offices
involved, including Respondent's own wholesale credit department which he
had had to contact to obtain information.
" Davis' conclusions regarding Rio's failure to have an itemized statement
and reconciliation prepared is based entirely upon her examination of the
workcards for May 24, which carried Bryan's instructions, and for June 15,
which did not show that Rio had taken the directed actions. Yet, the June 15
card had been reviewed by Bloomquist and Bryan without, so far as the record
discloses, there being any objection to the manner in which Rio had handled
the account following Bryan's May 31 instructions. In fact, examination of the
May 24 workcard discloses that while the customer had owed a total of
$29,204.01 at that time, only 10,531.75 of that amount had been overdue,
with the remainder resulting from current charges. The June 15 workcard
shows that an $8,345,03 payment had been made, leaving past due at that time
$2,186.72. Consequently, the $43.811.94 amount listed by Davis in her
memorandum represents principally charges made by the customer during the
month of June. In addition, Davis conceded that which she had interpreted
Bryan's request for an itemized statement to mean that it should be sent to the
customer, the latter had not requested an itemized statement. At no point did
Respondent contend that Bryan had actually intended that an itemized
statement be sent to the customer. Finally, while Respondent called Bryan as
a witness, he did not testify that he had been dissatisfied with Rio's handling
of this account.
" No evidence was produced to show that this had been Respondent's
prescribed procedure as opposed to Davis' preferred method of handling these
matters.
" Davis acknowledged that in all other respects, Rio had handled this
account properly "[a]s far as I know."
186
AMERICAN PETROFINA COMPANY OF TEXAS
dum that on July 3, while substituting on the cycle normally
handled by retail credit representative Taylor, Rio had failed
to attach tickets to six "jobber charge-back change orders"
that he had forwarded to Bryan. Bryan testified that Rio had
made an inordinate number of errors on the change orders
which he had handled and submitted to Bryan for review.'
However, were Respondent's officials to be credited regard-
ing the magnitude of Rio's mishandling of change orders,
this had not been a newly uncovered problem. For, with
respect to the period of time during which change-order
errors had been made by Rio, Bryan testified, "I would think
they increased after the first year [of Rio's employment]."
Similarly, Brooks testified that Rio's change-order errors
"had been called to my attention previously. I don't know
just how previously, but probably back to '76." Yet, it is
undisputed that Rio had received raises on each occasion
when he had been entitled to receive one prior to July.
General Credit Manager Brooks described Respondent's
post-February procedure for processing employee appraisals
and wage increases. He testified that "[t]he first procedure in
that is for the immediate supervisor to make an appraisal on
the employee. And as far as the Credit Department
employees are concerned, I then review the material before it
goes forward." By way of amplification, Brooks explained
that each level of supervision-starting with the senior credit
representatives-supplied "input" for this determination,
with Retail Credit Manager Smith being the one who
"actually makes up the appraisal." In preparing the apprais-
al, according to Brooks, such factors as the employees'
"performance, whether he's measuring up to the, at least the
average, of the people that are in the same capacity" are
considered. Brooks also testified that once it is determined
an employee is entitled to an increase, "the evaluation is
made and on that time, then, the amount of increase that is
recommended is passed forward to get approval through the
Employee Relations Department, and the appraisal is gone
over with the employee that is to get the increase." The
written form that is filled out to recommend the raise is an
"Employment and/or Change of Status Notice,"' which,
according to Brooks, is completed prior to discussing the
appraisal with the employee in order to facilitate awarding
the employee his or her merit increase at the earliest
opportunity. The important point, however, is that the
normal procedure, according to Brooks, is to prepare the
appraisal and then, if warranted, the status notice.
On July 10 Brooks and Smith met with Rio for the
purpose of discussing the latter's appraisal. Rio was denied
the increase. On his "Job Performance Appraisal," signed by
both Brooks and Smith, the following had been written
under the heading "Employee Weaknesses":
1. Withdrawn and gives the appearance of brooding
over problems. (whether personal or business) 2. Sur-
veys of his work in recent weeks have brought out the
following shortcomings (a) Does not follow prescribed
proceedures (sic] and recommendation of his superiors
sufficiently (b) Insufficient analysis of problem accounts
for adequate handling (c) Sometimes careless in han-
dling of details.
' Smith testified that a retail credit representative handles approximately 5
to 15 change orders daily. Bryan testified that he reviews between 1,000 and
1.500 change orders each month.
These were the reasons advanced by Smith and Brooks
during the appraisal interview for telling Rio that he would
not be receiving an increase. The meeting concluded with
Brooks promising to review Rio's performance again in 60 to
90 days to ascertain if he had improved sufficiently to
warrant being granted an increase.
Both Smith and Brooks testified concerning their reasons
for deciding not to grant an increase to Rio. Smith testified
that he had felt that Rio "was not performing his functions
and not progressing as he should have. He had errors on
change orders daily. The follow up of thousand dollar
accounts were not being handled as they should be. I was
receiving complaints about his work from his supervisors."
Brooks testified that his conclusion had been based both on
facts known personally by him and on facts reported to him
by Rio's supervisors. With regard to the former, Brooks
testified that at Rio's request he had initiated personal
observation of Rio's work in late 1977. In doing so, testified
Brooks, he had examined some of the files of accounts
handled by Rio, discovering, he testified, "that I was finding
more mistakes in the handling than should occur for his
amount of time he had beer with us and the training he had
had with us." More specifically, Brooks testified that Rio
had not been staying up with his work and had not been
following the prescribed procedures for $ 1,000 accounts and
change orders. With regard to the second category of facts-
those made known to him by Rio's supervisors-Brooks
testified that he had relied on information reported to him
by Bryan and Davis.
C. The Denial of a Transfer for Rio
Concerned about the appraisal which he had received, Rio
wrote a letter to Senior Vice President MacKenzie, explain-
ing his own position on the adverse factors which had been
covered during the July 10 meeting and requesting that
MacKenzie review the situation. At the end of the letter, Rio
requested a transfer out of the retail credit department.
Approximately a week later, MacKenzie met with Rio.
The two of them reviewed the adverse items listed in the
appraisal. MacKenzie stated that he agreed with the conclu-
sion reached by Smith and Brooks. He said that he
understood that Rio would again be reviewed in 30 or 60
days, and he marked his calendar at the point when that
review would be occurring. With regard to Rio's transfer
request, MacKenzie said that he had spoken to other
supervisors and that Rio's "activities, union or otherwise,
that I was too hot to handle and they did not want anything
to do with me." During the meeting, Rio asserted that he
was being set up for discharge because of his past activities.
MacKenzie asked Rio to think back and recall if it were not
true that Rio had been "used" by the Union "as an
instrument to get them inside the office workers." After
thinking for a moment, Rio replied that he did not think that
he had been used, except to a certain extent, and that he had
made a commitment to the Union on which he had followed
through. MacKenzie said, "Well, I don't know how you got
involved with the Union." Rio testified that "I interrupted
,' No such form is prepared if the employee is not to be recommended for a
raise.
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him stating, 'Well, it's a very interesting story, if you want to
hear about it."' Rio then related how his involvement with
the Union had commenced.
The foregoing sequence of events is based on Rio's
account as to what had occurred. MacKenzie was never
called as a witness by Respondent and no explanation was
advanced for failing to do so. Consequently, the record is
devoid of an explanation for MacKenzie's decision not to
permit Rio to transfer to another department. Assistant
Manager Dennis described Respondent's procedure for
posting vacant positions that cannot be filled from within a
department. He testified that between July I and September
30, there had been no jobs posted in other departments for
which Rio had been qualified. Yet, this does not really
explain MacKenzie's motivation in denying Rio's request,
especially in light of Brooks' testimony that "I suggested
back in the latter part of '77 that if [Rio] could find some
other place in the company that we would not stand in his
way to go to that job. And I did discuss placing him with
somebody in another department with the manager of that
department."
D. The Discharge of Rio
On August 17 Rio sent a letter to Brooks, with copies to
MacKenzie and Smith. In that letter, Rio made certain
recommendations for improvements in the credit depart-
ment. These recommendations covered a number of matters,
including such suggestions as moving the printing machine
to eliminate "excessive noise in reception area, and since
Retail Credit uses the printer more it would be centrally
located in the retail credit area"; providing definitions of
"job tasks and descriptions so that employees know what is
expected of them"; using window envelopes for specified
letters to save typists' time and to save envelope expense;
providing overtime compensation for overtime work and
extra hours; conducting bimonthly meetings "to discuss
situations and/or problem solving," with sufficient advance
notice given so that employees could develop ideas for
discussion; making the computer terminals accessible to a
greater number of employees when credit representatives
were absent; making monthly account comparisons available
to the credit representatives; and, having update cards
separated before, at least, distribution to all credit represen-
tatives. On the following day, Brooks sent Rio a written
reply, stating that he did not have time at the moment to
review Rio's recommendations with Smith, but would do so
later and would then discuss them with Rio. In his reply,
Brooks pointed out specifically that "[s]ome of your sugges-
tions have been used in the past and dropped for one reason
or another. Others, I am sure, have merit."
Notwithstanding Brooks' remarks regarding the caliber of
Rio's recommendations, when Brooks had mentioned Rio's
recommendations to Smith, the latter had spoken with
Bryan who, in turn, had prepared his own memorandum. In
that memorandum, Bryan reviewed Rio's recommendations,
one by one, and stated in conclusion: "Mr. Rio's letter offers
further proof that although he has been exposed to excellent
training in the field of Retail Credit, he has been unable to
understand and address himself to the task." Yet, such a
condemnatory conclusion appears to have been unwarranted
when considered in conjunction with Smith's own review of
Rio's recommendations when testifying during the hearing.
For, the printing machine was moved ultimately. Respon-
dent did not have detailed descriptions for some of the
positions and, according to Smith, those that did exist were
"not available at that time." While window envelopes were
not less expensive than those being used, there is no evidence
that Rio would have known that fact by virtue of the duties
that he performed as retail credit representative. Overtime
rates were paid only if an employee worked more than 40
hours er week. When a retail credit representative worked
more than 8 hours in one day, it was Respondent's policy to
insist that the representative take compensatory "within that
pay period." According to Smith, Respondent saw no need
to alter its practice of conducting meetings only when
necessary, rather than at periodic intervals. Nor did it see
any need to revise its form letters, which are revised as
needed: "You might revise one three times in a year, and you
might not revise it for five." There was no showing,
however, that Respondent had previously made Rio aware
of this policy. Nor was there any showing as to when the last
form letter had been revised prior to Rio's preparation of his
suggestions. It was not disputed that greater accessibility to
the computer terminals would expedite the workflow.
However, Respondent had chosen not to follow this course
for security reasons, although there is no evidence that Rio
would have been aware of that choice before transmitting his
recommendations. Nor is there any evidence that he had
been aware that Respondent did prepare monthly compari-
sons of cycles, but had chosen not to publicize them, and
that the credit representatives had to make a specific request
in order to see them. Since the separation of update cards
was performed by credit representatives, Respondent viewed
Rio's suggestion regarding that subject as one which would
create work duplication. Again, however, there is no
evidence that Rio would have perceived Respondent's reason
for not assigning this work to personnel other than the credit
representative.
In fact, the only suggestion tending to show a lack of
knowledge by Rio regarding his duties was his final
suggestion: that notices of cancellation of delinquent ac-
counts be sent by mailgram rather than by "the current
certified letter." Certified letters had not been used for
approximately a year prior to the time that Rio had prepared
his recommendations. Respondent had switched to a "proof
of mailing" system. Yet, there is no evidence that Rio had
been speaking with exactitude in using the term "certified
mail." More significantly, there is no evidence that Rio had
been continuing to send such notices by certified mail
following the change in procedure. Indeed, even had Rio not
been aware of the change, he apparently was not alone in
that respect. For, in criticizing this particular recommenda-
tion, Brooks' only complaint had been that mailgrams were
not less expensive. He raised no complaint concerning Rio's
use of the term "certified mail." In any event, had Rio been
unaware of the change this would hardly justify the
broadside characterization that his recommendations dis-
closed that he had been failing to "address himself to the
task" of performing his job functions properly-particularly
in light of Brooks' above-quoted letter and his testimony
"that there was not anything in there that was startling [sic]
188
AMERICAN PETROFINA COMPANY OF TEXAS
new. We had either tried some of that in the past and
discarded it, or that there was some other reason why we
couldn't do it right at this time."
On August 22 Bryan met with Rio and discussed the
latter's recommendations. At the same time, he discussed
another subject which, 2 days later, he described in a
memorandum to Smith:
In reviewing the agency referrals for cycle eight, it
was apparent that the statements returned from the
Post Office for bad addresses were not being handled
properly. I checked with Sue Davis and she had
detected the problem and had asked Kate Cornwell
about the returned statements. Kate advised Sue that
Sam Watkins had picked up all returned statements
some time back and she had not seen them since. I
asked Joe about the returned statements and he said he
did not have any old ones, just currently returned items.
After this, Joe took the agency referral accounts to
his area and returned with returned statements for
several accounts. It appears that Joe took all the old
statements and remailed them in a regular statement
envelope and they had just recently been returned by
the Post Office. I explained to Joe that this was not
logical, then proceeded to explain how the skip tracing
should be performed. I asked Joe about the returned
statements with no current invoices, but which had a
current finance charge and he advised me that those
were discarded. It was then explained to Joe why it was
necessary to retain these items along with those that
had current invoices.
According to Bryan, Respondent's normal procedure is that
on return of a statement due to the inability of the Postal
Service to make delivery, Respondent again mails it to that
same address, inasmuch as "approximately 50 percent of
those do reach the addressee for some reason. Then the
others we do our regular skip tracing on." Thus, only after
the statement is again returned is it referred for collection.
However, according to Bryan, Rio had again mailed out
statements to the same address when they had been
returned.
Rio testified that prior to the referral of these particular
accounts to Bryan, Bloomquist had notified all of the retail
credit representatives "to take these statements and mail
them back out using the postal system because some of the
statements that had been returned had valid addresses, but
were being sent back due to an error in the post office."
According to Rio, that afternoon he had followed Bloom-
quist's instructions. On the following morning, Bloomquist
countermanded the directions that he had given the prior
day, saying "that he wasn't sure what was going to happen,
just to hold them." Rio acknowledged that he had not
explained to Bryan what had happened when the latter had
asked about these returned statements.
Despite his above-described letter to Rio, Brooks never
did get around to discussing the recommendations submitted
by Rio until September 15, when he summoned Rio to the
'" Accordingly, it is irrelevant that by perusing its files Respondent later
ascertained that Rio had made more errors and mistakes than it had been
aware of prior to his termination. For these matters were not known to
office and, in Smith's presence, told Rio that he was
terminated. Brooks testified that Smith and he had been the
only officials involved in making the decision to terminate
Rio, although he testified that he had consulted with Davis
and Bryan regarding whether there had been any improve-
ment in Rio's work. Both Smith and Brooks testified that the
reason for terminating Rio had been the latter's failure to
improve following the July appraisal. Thus, Smith testified
that Rio "wasn't making sufficient progress. He wasn't at
the point where he could perform his functions properly. He
just had too many errors and shortcomings." Similarly,
Brooks testified that "from all that I could determine, there
had not been improvements. And if you have-we had an
adverse type of appraisal; therefore, I could not see any
choice except to terminate him."
V. ANALYSIS
In assessing the question of whether Respondent's dis-
charge of Rio had been motivated by unlawful consider-
ations, several general principles should be borne in mind.
First, in evaluating allegations of discriminatory conduct,
"the pivotal factor is motive." N.L.R.B. v. Lipman Brothers,
Inc., et al., 355 F.2d 15, 20 (Ist Cir. 1966). "The determina-
tion which the Board must make is one of fact-what was
the actual motive of the discharge?" Santa Fe Drilling
Company v. N.L.R.B., 416 F.2d 725, 729 (9th Cir. 1969).
This being the case, a determination of the employer's
"actual motive" can only be based on facts known to the
employer at the time that the decision was made and not on
facts which were later brought to the employer's attention,
but had not been taken into consideration in arriving at that
decision. See, e.g., Amco Electric, 152 NLRB 781, 784
(1965), enforcement denied on other grounds 358 F.2d 370
(9th Cir. 1966).'"
Second, "[t]he Act ... recognizes the employer's right to
terminate employment for normal reasons." N.L.R.B. v.
Waterman Steamship Corporation, 309 U.S. 206, 218-219
(1940). "The only restriction that the National Labor
Relations Act places upon an employer's right to discharge
employees is that it not be because of union activity or
affiliation." N.L.R.B. v. Challenge-Cook Brothers of Ohio,
Inc., 374 F.2d 147, 151 (6th Cir. 1967). While "Board law
does not permit the trier of fact to substitute his own
subjective impression of what he would have done were he in
the Respondent's position" (Grand Auto, Inc., d/b/a Super
Tire Stores, 236 NLRB 877, fn. 1 (1978)), "when it is alleged
that the reason assigned for the discipline is pretextual, our
attention must necessarily turn to the reaction of the
employer" (American Thread Company, Sevier Plant, 242
NLRB 27 (1979)).
Finally, that valid grounds may exist for terminating an
employee is not dispositive of whether that termination was
unlawful. N.L.R.B. v. Texas Independent Oil Company, Inc.,
232 F.2d 447, 450 (9th Cir. 1956). For, "where a respon-
dent's motivations are mixed, the Board has held that the
legal effect of the conduct is the same as though the illegal
reason for its action was the only operative reason."
Respondent at the time that it had been making its decisions concerning Rio's
wage increase, transfer request, and discharge. Consequently, they could not
have been considered by Respondent in formulating its decisions.
189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction, Production & Maintenance Laborers' Union
Local No. 383. etc. (William Pulice Concrete Construction),
236 NLRB 125 (1978). Accord: N.L.R.B. v. Jamestown
Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954); see also
N.L.R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (9th Cir.
1970), and cases cited therein. Consequently, a violation of
the Act is established where, despite the existence of a valid
reason for discharge, the evidence shows that the employer
has resorted to that reason as a basis for building a case
against an employee due to his union activities (United
Aircraft Corporation v. N.L.R.B., 440 F.2d 85, 92 (2d Cir.
1971)), or as a result of a campaign of "watchfully waiting
for . union enthusiasts to give the. . . slightest reason or
pretext to get rid of them because of their union activities."
Lipman Brothers. Inc., 355 F.2d at 21.
In the instant case, Rio had been the most active
proponent in the Union's campaign. Respondent recognized
that fact, since in May 1977 Smith had told Rio that
Respondent viewed him as being the employee who had been
"heading up the union activities." Moreover, there is also
evidence that Respondent had been displeased with Rio's
role and, further, that it had intended to retaliate against
him for his protected activities. Thus, it is undisputed that
on the day after the election Iden, then Rio's immediate
supervisor, had said that because of Rio's "union activities
and because of the way [Rio] got involved in the union, that
[Rio's] future with the company was at an end and that [Rio]
was probably as far as [he] was ever going to go with
American Petrofina." Not only is such a statement evidence
of hostility toward Rio because of his protected activity, but
it constituted an outright confession of Respondent's inten-
tion to retaliate against Rio because he had supported the
Union. See, e.g., N.L.R.B. v. L.C. Ferguson and E.F. Von
Seggern d/b/a Shovel Supply Company, 257 F.2d 88, 92 (5th
Cir. 1958), and N.L.R.B. v. John LangenbacherCo., Inc., 398
F.2d 459, 463 (2d Cir. 1968), cert. denied 393 U.S. 1049
(1969). "The Courts pay special attention to such statements
against interest when in the unusual case it occurs that a
party admits that his conduct, otherwise ambiguous, is for
improper purpose or objective." Brown Transport Corp. v.
.L.R.B., 334 F.2d 30, 38 (5th Cir. 1964).
By the time that Respondent had denied a wage increase
to Rio, almost a year had elapsed since the election.
Nevertheless, mere passage of time, of itself, "does not
gainsay discriminatory intent...." Butler-Johnson Corpo-
ration, 237 NLRB 688, 690 (1978); see also First National
Bank of Pueblo, 240 NLRB 184 (1979). The July denial of a
wage increase to Rio had been the first time following the
election that Respondent had been afforded a natural
opportunity to make good on Iden's postelection threat.
While Rio had been granted a wage increase in February,
that increase had been an automatic one and had been
granted to all of Respondent's employees. To have granted it
to all employees save Rio would have been a blatant act of
disparate treatment, too obvious to withstand scrutiny.
Consequently, the scheduled July increase presented the first
natural opportunity following the election to take action
against Rio.
It is noteworthy that prior to the election Rio had not, so
far as the record discloses, been the object of any adverse
personnel actions, having been granted wage increases on
every occasion when he had been eligible to receive one and
having never been even reprimanded concerning his work
performance. But, following the election, save for the
automatic increase, every personnel action involving him
had been one that had been adverse. Yet, there is no
evidence that his work performance had been any different
following the election than it had been previously. No doubt
Rio had never been an ideal employee. Indeed, both Brooks
and Bryan testified that Rio's problems with change orders
had existed since 1976. Nevertheless, not until after the
election did his handling of change orders cause Respondent
to consider denying Rio a wage increase and then terminat-
ing him. "[A]n employer who freely tolerates such conduct
may not suddenly find it offensive only when committed by
an employee who exercises his right to engage in concerted
activity." Apico Inns of California, Inc. d/b/a Holiday Inn of
America of San Bernardino, 212 NLRB 280 (1974), enfd. as
modified 512 F.2d 1171 (9th Cir. 1975). See also Shasta
Fiberglass, Inc., 202 NLRB 341 (1973).
Indeed, there is some basis for doubting that Rio's
handling of change orders had been as deficient as Respon-
dent now seeks to portray. At the hearing, Respondent
produced but a handful of erroneous change orders taken
from those handled by Rio over approximately a -year
period. Considering the volume of change orders handled by
retail credit representatives and the absence of any evidence
that Respondent had acted earlier to correct deficiencies
which it perceived in Rio's handling of them, there is
considerable basis for inferring that Repondent had not
considered Rio's errors to be a significant problem until it
had decided that his "future with the company was at an
end." Having made that decision and later faced with the
opportunity to implement it by first denying him a wage
increase and then terminating him, Respondent then "raised
its standard of expectations so that [Rio] could be portrayed
as an unsatisfactory employee." L'Eggs Products Incorporat-
ed. 236 NLRB 354, 401 (1978).
Nor were the change order errors the only facet of
Respondent's defense where relatively minor matters appear
to have been inflated in significance to justify the actions
taken with regard to Rio. Smith complained that during his
last 3 or 4 months of employment, Rio had not been
following the letter series in that he had failed to send any
"Smith letters" to customers. Yet, Smith conceded that this
had been the only instance that he knew about where Rio
had failed to follow Respondent's letter series. Further,
Smith admitted that no official of Respondent, to his
knowledge, had spoken to Rio concerning the latter's failure
to use the "Smith letter." Nor did any other official of
Respondent claim to have spoken with Rio regarding the
subject. This failure to speak with Rio regarding the matter
and the evidence that retail credit representatives had some
latitude concerning their choice of particular form letters
tend to indicate that, like the change orders, Rio's failure to
use the "Smith letter" had not been a matter of concern to
Respondent prior to Rio's termination.
Similarly, Respondent's assertion that Rio's August 17
recommendations demonstrated his inability "to understand
and address himself to the task" of retail credit representa-
tive appears to have been but another attempt t cast Rio's
position in as bleak a light as possible. Certainly that
19(
AMERICAN PETROFINA COMPANY OF TEXAS
conclusion is contrary to the words of Brooks' letter. As
Brooks acknowledged, these had been suggestions with
which Respondent had experimented in the past." Accord-
ingly, they could not have been as substantively baseless as
Respondent now seeks to portray. Indeed, as set forth above,
a review of each of these recommendations shows that
Respondent merely disagreed with the need to effectuate
them. With the exception of the mailgram suggestion, none
of them disclose a lack of knowledge concerning the duties
of retail credit representative. Even with respect to the
certified letter reference in the memorandum, there is no
evidence that Rio had been using that term with precision or
that he had been using certified mail prior to preparing the
memorandum. Indeed, Brooks, himself, did not take issue
with Rio's use of that term.
Rio's handling of change orders was one of the two
principal complaints voiced about his work by Respondent's
officials. The other pertained to his handling of $1,000
accounts. Yet, Respondent's evidence in support of this
assertion proved to be its own undoing. While both Brooks
and Smith complained of longstanding problems with Rio in
this area, neither Iden nor Bloomquist-the two senior
credit representatives who had directly supervised Rio's
handling of $1,000 accounts prior to Davis-were called to
corroborate these complaints. Since they had provided the
direct supervision of Rio's handling of $1,000 accounts, they
were the officials in the best position to testify with firsthand
knowledge about the caliber of Rio's performance in this
area. Respondent's failure to call them as witnesses went
unexplained. In these circumstances, the record is left with
no more than generalized assertions concerning Rio's han-
dling of $1,000 accounts and with the inference that had
Iden and Bloomquist been called to testify about this subject,
their testimonies would not have corroborated those of
Brooks and Smith. Colorflo Decorator Products, Inc., 228
NLRB 408, 410 (1977), enfd. by memorandum opinion 582
F.2d 1289 (9th Cir. 1978).
The lone complaint by a senior credit representative
concerning Rio's handling of $1,000 accounts was that of
Davis, made when she had initially reviewed Rio's accounts
shortly after she had been promoted to senior credit
representative. However, as detailed in section IV, B supra,
there is considerable doubt that her complaints showed
misperformance by Rio. Rather, they tended to show that, in
some instances, previous senior credit representatives had
endorsed procedures that Davis felt were incorrect and, in
other instances, that Davis lacked sufficient familiarity with
accounts to realize that they had been accorded special
handling due to unique problems. Though Rio did not
explain these matters to Davis at the time that she had
spoken to him, she admitted that she had not sought any
explanations. It must also be noted thatno explanation was
advanced as to why Davis had believed it necessary, on the
basis of a single initial review of Rio's work, to prepare and
transmit a memorandum to her superiors concerning Rio's
performance. There is no evidence that preparation of such
memoranda had been normal procedure and, consequently,
the record is devoid of any evidence concerning Davis'
" There is no contention that this experimentation had occurred during the
time that Rio had been employed by Respondent nor that Rio would have
known that such experimentation had taken place.
purpose for choosing this particular time to prepare a
memorandum concerning this particular employee.
Any solace that Respondent might find in that portion of
its defense pertaining to Rio's handling of $1,000 accounts is
dispelled by what occurred after the July appraisal of Rio's
work. Brooks and Smith both claimed that Rio's work had
not improved more than minimally in this area. Yet, they
were flatly contradicted by Davis who had directly super-
vised Rio's handling of $1,000 accounts during that period.
She testified that "[a]s as I know" Rio had handled those
accounts properly after July 3.
Nor is Respondent's situation improved by inspection of
the specific reasons advanced for each of the personnel
actions taken during the summer with respect to Rio. Both
Brooks and Smith claimed that Rio's history of poor
performance had led to the decision to deny him a wage
increase. Nevertheless, in June both of them had signed an
Employment and/or Change of Status Notice which provid-
ed a $47-per-month increase for Rio. As set forth in section
IV, B, above, Brooks testified that such notices were
prepared only after the immediate supervisor had prepared
an appraisal and an evaluation had been made of the
employee's work by higher supervision. In short, notwith-
standing the history of deficiencies now attributed to Rio by
Respondent, the fact is that it had approved him for an
increase, pursuant to a procedure that called for a prior
evaluation of his work, less than I month prior to its July
refusal to grant an increase to him.
Of course, it could have been asserted that Davis'
intervening initial review of Rio's work had warranted a
change in the decision to grant Rio an increase. But, aside
from the questionable nature of her complaints, this was not
what Brooks and Smith asserted. Instead, Smith claimed
simply that "I wasn't convinced at any time that he deserved
a merit increase." If so, one wonders why he had even
bothered to process the status notice for Rio. Both he and
Brooks claimed that the status notice had been submitted
merely to insure approval of the increase if it were decided
that Rio should receive one. However, this explanation is
contradictory to the normal procedure for preparing status
notices, as described by Brooks. Moreover, it leaves unex-
plained why the $47 figure had been chosen: if no evaluation
of Rio's work had been made prior to preparation of the
status notice, then on what basis was that amount selected?
Beyond the inconsistency arising from denial of an
increase approved during the immediately preceding month,
Respondent's defense to the refusal to grant an increase to
Rio suffers certain other infirmities. Both Smith and Brooks
relied on Rio's handling of change orders and $1,000
accounts. As found above, however, the evidence does not
support their assertions that Rio's work in these areas had
been viewed as being of such poor caliber, judged by
Respondent's standards, as is now portrayed. Moreover,
even had Rio's performance in these two areas been as poor
as Respondent now claims, this would still not have been the
determining factor for denying an increase to Rio. For,
Brooks conceded that nevertheless he "might have" recom-
mended Rio for a raise had it not been for the information
reported to him by Smith, Bryan, and Davis. Smith, in turn,
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that, aside from the change orders and $1,000
accounts, his decision to deny Rio an increase had been
based on "complaints about [Rio's] work from his supervi-
sors." However, he did not identify these complaining
supervisors. Brooks claimed that he had relied heavily on
Davis' recommendation. Yet, Davis did not testify to having
made a recommendation concerning Rio's appraisal. Nor
did she testify to having discussed the possibility of granting
Rio an increase with any of her superiors. Rather, other than
her memorandum and comments to Bryan concerning the
items mentioned in that memorandum, she did not describe
having any communications with higher management con-
cerning Rio. Finally, Bryan testified that he had not been
aware that Rio had been eligible for a raise in July nor that
Rio had been denied one at that time.
Even less tenable is Respondent's position concerning
MacKenzie's refusal to grant Rio's request for a transfer-a
course of action which had been suggested to Rio by Brooks
approximately 8 or 9 months earlier. So far as the record
discloses, the ultimate decision not to grant Rio's request
had been made by MacKenzie. However, he was never
called by Respondent to explain the basis for that decision.
Since his motivation was critical on the question of Respon-
dent's reason for denying that request, its failure to call him
permits an adverse inference as to its motivation. N.L.R.B. v.
Dorn's Transportation Company, Inc., 405 F.2d 706, 713 (2d
Cir. 1969); N.L.R.B. v. Ohio Calcium Co., 133 F.2d 721, 727
(6th Cir. 1943). Moreover, the fact that Respondent had
been motivated by unlawful considerations in denying this
request can be based on much stronger evidence than
inference. For, it is undisputed that MacKenzie had told Rio
that he (MacKenzie) had spoken to other supervisors about
transferring Rio and that those supervisors had opposed
having Rio transferred to their departments because his
"activities, union or otherwise" had rendered him, in their
opinion, "too hot to handle." Accordingly, not only does
this comment disclose that Respondent had not forgotten
Rio's activities in support of the Union during the prior year,
but it constitutes an outright confession of Respondent's
motive for refusing Rio's request for a transfer. N.L.R.B. v.
Ferguson, supra; Brown Transport Corp. v. N.L.R.B., supra;
N. L. R.B. v. John Langenbacher Co., supra.
With respect to the reasons for terminating Rio, Respon-
dent's defense is deficient in several respects. First, as
pointed out above, Davis directly contradicted Smith and
Brooks' assertion that Rio had continued to handle $1,000
accounts improperly following their July 10 meeting. Sec-
ond, with regard to change orders, Bryan testified that
"[o]rdinarily I send copies, not consistently every day of
each change order that's incorrect" to Smith. Bryan further
" This total, in fact, accords Respondent the benefit of the doubt, for the
group of change orders included in Resp. Eh. 17 includes one from
Thornton's Department Store on which the year is blocked out. Since that
group includes two change orders from 1977, it is conceivable that the one
from Thornton's was also approximately a year old by the time of Rio's
termination.
" In its brief, Respondent points out that Bloomquist had no longer been
supervising Rio at the time of this incident and, accordingly, that Rio's
testimony concerning what Bloomquist had told him should not be credited.
Yet, if Bloomquist had not given Rio these directions, Respondent could have
called him to deny having done so. In fact, at no point had Bloomquist been
assigned as Rio's supervisor. Rather, during the spring, he had been assisting
first Iden and then Davis by providing supervision for retail credit representa-
testified that "I would suppose" that a record had been kept
of those collected and transmitted to Smith. This would
seemingly have been a most accurate supposition in light of
Respondent's contention that it had intended to fire Rio if
his work did not improve following the July appraisal.
Presumably his work would have been observed and
monitored most closely to ascertain if there was improve-
ment. However, Smith was able to produce copies of but
four change orders'" with errors made by Rio during the 3-
month period between July 10 and September 15.
Third, during that same interval, Rio had remailed certain
statements that had been returned as nondeliverable. That
incident became a subject of a memorandum from Bryan to
Smith. It is undisputed that Rio had done so at Bloomquist's
instruction,' but had not told this to Bryan when the latter
had broached the subject. On the other hand, it does not
appear that Bryan had sought an explanation from Rio
concerning the matter. Bryan conceded that returned state-
ments are normally remailed as "approximately 50 percent
of those do reach the addressees for some reason." Accord-
ingly, it would not have been extraordinary for returned
statements to again be mailed. Moreover, as Bryan acknowl-
edged in his memorandum, while Davis had "detected the
problem," she had not displayed any particular vigor in
inquiring into the matter, apparently feeling that it lacked
the significance which Bryan attributed to it in his memo-
randum.20 Finally, while both Smith and Brooks described
their reasons for having decided to discharge Rio, neither
one of them mentioned this incident specifically as having
been a factor in their decision.
In sum, Rio had been perceived by Respondent as
"heading up the union activities." Following the election, he
had been told that "because of the way I got so involved in
the Union, that my future with the company was at an end."
Thereafter, he was denied a wage increase for the first time
since he had been employed by Respondent. He was then
denied a transfer even though Brooks had earlier suggested
that he transfer to another department. Finally, he was
terminated. Although there had been a lapse of time since
the election, Rio's eligibility for a merit increase had
provided the first natural opportunity to treat him on an
individual basis since the election. Any contention that his
1977 activities had been forgotten with the passage of time is
dispelled by MacKenzie's admission that none of the
supervisors with whom he had spoken had wanted Rio
transferred to their departments because his activities had
made him "too hot to handle." Indeed, during this same
conversation, MacKenzie had afforded Rio an opportunity
to acknowledge that his prior support for the Union had
been a mistake, a matter discussed further below. Not only
tives nominally assigned to them. There is no contention that Bloomquist had
not continued serving as a senior credit representative in August. Consequent-
ly, the fact that he had not been assigned responsibility for Rio's supervision
during that month would not have precluded him from having given
directions to retail credit representatives, such as Rio, who were not assigned
to him for direct supervision, just as he had done in the spring. Thus, the fact
that Bloomquist had not been assigned to formally supervise Rio during that
month does not, of itself, serve to discredit Rio's testimony that Bloomquist
had given him these directions in August regarding the returned statements.
'" As had been the case with Davis' July memorandum, there is no evidence
that it had been Respondent's practice to prepare memoranda such as that
prepared by Bryan, and no explanation was advanced for his having taken the
time to do so.
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AMERICAN PETROFINA COMPANY OF TEXAS
did Rio decline to do so, but he demonstrated a continued
interest in improving working conditions on August 17 when
he submitted a list of recommendations, many of which
suggested changes that would benefit other employees,
thereby raising the possibility that he might again participate
in an effort to organize Respondent's employees. While the
reasons advanced by Respondent for its actions pertaining to
Rio appeared to have facial validity, as set forth above, they
did not withstand scrutiny, and I find that they were no
more than pretexts designed to disguise the true motive for
Respondent's actions concerning Rio.
Based upon the record, it is true, as Respondent argues,
that Rio had been the only union supporter to encounter
difficulties following the election. However, "a discriminato-
ry motive, otherwise established, is not disproved by an
employer's proof that it did not weed out all union
adherents." Nachman Corporation v. N.L.R.B.. 337 F.2d
421, 424 (7th Cir. 1964). Accord: N.L.R.B. v. Challenge-
Cook Brothers of Ohio. 374 F.2d at 152; N.L.R.B. v. W. C.
Nabors d/b/a W. C. Nabors Co., 196 F.2d 272, 276 (5th Cir.
1952), cert. denied 344 U.S. 865. Similarly, the fact that
Respondent has a bargaining relationship with the Union
for, in essence, production employees working at other
locations does not disprove that it did not welcome represen-
tation of its office employees working at its Dallas facility.
Finally, Respondent also argues that Smith's and Brooks'
approval of the June status notice, providing a 47 increase
for Rio, contradicts any argument that Respondent had
intended to retaliate against Rio because of his preelection
activities, since that notice had been prepared and approved
by them after the election. Yet, the allegations here rest on
the underlying premise that Respondent-not simply Smith
and Brooks-harbored animus against Rio because of his
activities. That these two supervisors had been willing to
approve Rio for an increase despite his prior union activities
does not negate a finding that their superiors had not been
similarly indifferent to Rio's role in that campaign nor, as
MacKenzie's questioning tends to indicate, unconcerned
about the possibility that Rio's attitude regarding represen-
tation of the office employees might lead him to again seek
to obtain representation for them. Therefore, I find that by
denying Rio a wage increase and a transfer, and by
terminating him on September 15, Respondent violated
Section 8(a)(3) and (1) of the Act.
The complaint also alleges two independent violations of
Section 8(a)(l) of the Act. One of them alleges that on
August 24 Bryan informed an employee that he had lost any
opportunity for advancement because he had engaged in
protected, concerted activities. There is no evidence to
support that allegation and, accordingly, I shall recommend
that it be dismissed. The second is that MacKenzie interro-
gated an employee about his union activities and desires.
This pertains to the questions asked by MacKenzie during
his July meeting with Rio. During that meeting, MacKenzie
asked if Rio did not feel that he had been "used" by the
Union as no more than "an instrument to" secure represen-
tative status for the office workers. By this question,
MacKenzie sought to ascertain whether Rio continued to be
sympathetic toward the Union. Questioning regarding an
employee's union sympathy "has been held to violate the
Act because of its natural tendency to instill in the minds of
employees fear of discrimination on the basis of the
information the employer has obtained." N.L.R.B. v. West
Coast Casket Co., Inc.., 205 F.2d 902, 904 (9th Cir. 1953).
Moreover, it had been asked in the context of a conversation
during which MacKenzie had told Rio that the latter was
being denied a transfer because of his prior activities on
behalf of the Union. Finally, no valid purpose for asking
such a question existed, and Rio had not been given
assurances against reprisals. Therefore, I find that by this
questioning Respondent violated Section 8(a)(1) of the Act.
See World Wide Press, Inc., 242 NLRB 264 (1979), and
cases cited therein.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of American Petrofina Company of Texas
set forth above, occurring in connection with its operations
described in Section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. American Petrofina Company of Texas is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating an employee regarding his union
sympathies, American Petrofina Company of Texas has
violated Section 8(a)(1) of the Act.
4. By denying a wage increase and transfer to Joseph Rio,
and by discharging and refusing to reinstate him, American
Petrofina Company of Texas has violated Section 8(a)(3) and
(I) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. There is no evidence that Assistant Retail Credit
Manager James Bryan informed an employee that he had
lost any opportunity for advancement because he had
engaged in protected concerted activities.
THE REMEDY
Having found that American Petrofina Company of Texas
engaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
American Petrofina Company of Texas will be required to
offer Joseph Rio immediate reinstatement to his former
position of employment or, if that position no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been assigned or hired to
perform the work that Rio had been performing prior to his
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination on September 15, 1978. Additionally, American
Petrofina Company of Texas will be required to grant the
$47-per-month raise to Rio that he otherwise would have
received at the beginning of the third calendar quarter of
1978 and to transfer him to another department should he so
desire at the time that he is reinstated. American Petrofina
Company of Texas will also be required to make Rio whole
for any loss of earnings he may have suffered by reason of
the unlawful denial of a wage increase to him and by reason
of his unlawful termination, with backpay to be computed
on a quarterly basis, making deductions for interim earnings,
and with interest to be paid on the amounts owing and to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950) and Florida Steel Corpora-
tion, 231 NLRB 651 (1977); see generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), enforcement denied on
different grounds, 322 F.2d 913 (9th Cir. 1963).2
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER22
The Respondent, American Petrofina Company of Texas,
Dallas, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees regarding their union sympa-
thies.
(b) Denying wage increases to, refusing to transfer,
discharging, or otherwise discriminating against employees
with regard to hire or tenure of employment or any term or
condition of employment for engaging in activities on behalf
of a labor organization or for engaging in activity protected
by Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
" The General Counsel's request for a remedial interest rate of 9 percent on
the backpay is denied. See Southern California Edison Company. 243 NLRB
372, fn. 1(1979).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Joseph Rio immediate and full reinstatement to
his former position of employment, dismissing, if necessary,
anyone who may have been hired or assigned to perform the
work that he had been performing prior to September 15,
1978, or, if his former position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges; grant him the $47-
per-month wage increase that was denied him at the
beginning of the third calendar quarter of 1978; afford him
the opportunity to transfer to another department for which
he is qualified should he so desire; and make him whole for
any loss of pay he may have suffered as a result of the
discrimination, in the manner set forth above in the section
entitled "The Remedy."
(b) Preserve and make available to the Board or its agents
all payroll and other records necessary to compute the
backpay and reinstatement rights set forth in the section of
this Decision entitled "The Remedy."
(c) Post at its Dallas, Texas, facility copies of the attached
notice marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 16, after being
duly signed by its authorized representative, shall be posted
by American Petrofina Company of Texas 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 American Petrofina
Company of Texas to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that James Bryan informed an employee
that he had lost any opportunity for advancement because of
his engaging in protected, concerted activities.
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
" 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."
194