Bonenblust & Buckman, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 1012 (N.L.R.B. 1972)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bonenblust & Buckman, Inc. and International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America . Case 3-CA-4634
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 12, 1972, Administrative Law Judge '
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
exceptions and a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed.
"The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This case was
heard at Rochester, New York, on May 11, 1972. A com-
plaint, as amended at the hearing, issued herein on January
31, 1972, based on a charge filed on October 18, 1971, by
International Union, United Automobile, Aerospace & Ag-
ricultural Implement Workers of America, herein called the
UAW. It alleges that Bonenblust & Buckman, Inc., herein
called Respondent, violated Section 8(a)(3) and (1) of the
Act by discharging, and failing and refusing to reinstate,
employee Donald R. Poarch because of his union-connect-
ed or concerted activities. In its answer, Respondent denies
that it has violated the Act as alleged herein.
Upon the entire record, including my observation of
the witnesses, including their demeanor on the witness
stand, and after due consideration of the briefs of the Gen-
eral Counsel and of Respondent, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that it is a New York corporation with its principal
office and place of business in Rochester, New York, where
it is engaged in the sale of new and used automobiles and
related products; that, during the past year, it sold and
distributed products, the gross value of which exceeded
$500,000; and that during the same period of time, it re-
ceived goods valued in excess of $50,000 which were trans-
ported to it directly from outside New York. I find, upon
all the foregoing, as Respondent also admits, that Respon-
dent is engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION ALLEGEDLY INVOLVED
The complaint, as amended, alleges, and Respondent
further admits, and I find, that International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America is a labor organization within the meaning of
Section 2(5) of the Act.
As heretofore noted, this proceeding is solely con-
cerned with Respondent's discharge of Poarch and its fail-
ure and refusal to reinstate him. In this connection, the
complaint, as amended, alleges that the reason therefor was
that Poarch "joined and assisted the Union [the UAW] or
engaged in other union or concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion." There is, however, no evidence in this record, apart
from the averments in the charge and the complaint, as
amended, to indicate that Poarch had any involvement with
the UAW. This case was litigated by the parties on the
premise that Poarch's union activities for which he allegedly
was discharged were conducted on behalf of the "Retail
Clerks Union." The discrepancy in that respect between the
allegations of the complaint, as amended, and the evidence
was left unexplained on the record herein. Serving to shed
some light on the subject is the following of which I have
taken official notice: On October 12, 1971, 4 days after the
discharge of Poarch, Retail Clerks Store Employees Union,
Local 345, Retail Clerks International Association,' herein-
after referred to as the Retail Clerks, filed a petition with the
Board in Case 3-RC-5288 for certification in a unit of
Respondent's service department,2 parts department, and
related employees. That petition was withdrawn on October
15, 1971, and, on the same day, the UAW, the Charging
Party herein, filed a petition in Case 3-RC-5292 seeking
certification in a similar unit of Respondent's employees.
Pursuant to an election thereafter held in case-3-RC-5292,
the UAW was certified as the exclusive bargaining repre-
i The status of this entity as a labor organization within the meaning of
Sec. 2(5) of the Act, although not litigated herein , is evident , I find , from prior
Board and court cases . See, Vincent, etc v. Retail Store Employees Union
Local 345, Retail Clerks International Association, 54 LRRM 2226.
2 As will appear herein , Poarch worked in this department at the time of
his discharge
199 NLRB No. 164
BONENBLUST & BUCKMAN, INC. 1013
sentative of the employees in the unit sought.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. Some background facts
As already noted, Respondent, an automobile dealer,
is engaged in the sale of new and used cars to the public.
As part of its facilities at 340 Lake Avenue, Rochester, New
York, it maintains a service and body shop area. Arthur
Gumaer, the service manager, is in charge of this area. His
supervision extends to line mechanics, body shop employ-
ees, color polishers, shop foremen, and service writers,
about 20 or 22 in number. Poarch, the alleged discriminatee,
was employed as a service writer at all times material herein.
Also serving in that capacity was an employee named
Charles Summers. The two of them, along with Gumaer,
were usually on duty to process customers' automobiles
when they came in for service. So far as appears, their
functions and duties were typical of those performed in
service and body shops which are part and parcel of a
dealership in new and used cars, as here. Also included in
this area of Respondent's operations is a parts department,
consisting of employee Donald Crego, Francis Fleming, a
truckdriver who is unnamed in the record, and Ralph Ells-
worth, the parts manager and their supervisor. Above Gu-
maer and Ellsworth in the plant hierarchy is Richard
Haskins, the general manager. Also active in Respondent's
operations is Clarke Buckman, the owner and president of
Respondent. Respondent admits that Gumaer, Ellsworth,
Haskins, and Buckman are agents acting on behalf of Re-
spondent and also supervisors within the meaning of Sec-
tion 2(11) of the Act.
2. Poarch's employment history with Respondent
Poarch was employed by Respondent about January
1971 and remained continuously in Respondent's employ
until his discharge on October 8, 1971. Initially hired as a
line mechanic, Poarch, after working in that job for about
3 weeks, applied for, and was given, the position of service
writer, which position he continued to hold until his dis-
charge. Respondent now asserts that Poarch did not per-
form his work satisfactorily in that position. The only
evidence adduced by Respondent bearing even peripherally
on that point was in the form of testimony by Haskins and
Gumaer concerning complaints about Poarch that had
come to their attention. Their testimony discloses four such
complaints; these are set out in the marginal note.3 All of
3 (1) On one occasion in July 1971, Gumaer had a report that David
Malone, an apprentice mechanic , had refused to make a door repair on a car
Poarch had assigned to him , and when Gumaer spoke to Malone , the latter
offered as his excuse that Poarch had deliberately broken a part on the door
that Poarch now wanted him to fix. (2 ) Reports also came to Gumaer from
mechanics concerning the length of time spent by Poarch in road testing cars
they were repairing, as the time spent by them in accompanying Poarch was
cutting into the amount of their flat rate earnings , and one mechanic, named
Walker , said "he just didn 't want to go anymore ." (3) A mechanic, named
Vanslyke , on one occasion in early September had complained to Haskins
that he did not want to work with Poarch because , during a discussion about
repairs on a car , Poarch had physically pushed him . Poarch, when asked
about the last-mentioned incident during his cross-examination , denied that
it ever occurred. Vanslyke , no longer in Respondent's employ, was not called
them were complaints against Poarch by employees, none
against him by management. Neither Hastings nor Gumaer
asserted in their testimony that they viewed any of these
complaints as meritorious, or that they ever reprimanded
Poarch therefor. Poarch conceded, while testifying, that at
various times he did have problems with mechanics, just as
every service writer does. But these, he testified, were no
greater than any experienced service writer might expect to
have. There is nothing in this record to indicate otherwise.
Poarch also testified that he had never been warned about
his work or told that he was an unsatisfactory worker; in
this respect his testimony also stands undisputed. For these
reasons, and in the light of later events to be reported below,
I am satisfied, and find, that these complaints could not
have played a significant part in shaping Respondent's deci-
sion to discharge Poarch.
After working as a service writer for some months,
Poarch indicated that he was not happy with that job. In
August, Poarch asked Haskins for a raise in pay. His request
was denied on the ground that he did not have enough
experience in that job. Later that month he asked Haskins
to be returned to his original position as a line mechanic, but
at the top rate for that job. This request was also denied, on
the ground that his 3 weeks of experience with the Company
as a line mechanic did not justify placing him in the same
wage grade as the most experienced mechanics in the shop.
Still later that month, Poarch sought to persuade Maynard,
the used car manager, to give him a job as a used car
mechanic at a straight salary of $200 a week, but Haskins,
when told about this by Maynard, vetoed any such arrange-
ment because it would have meant that Poarch would be
earning more than any other mechanic in the shop.
About the first week of September, Haskins did agree
to allow Poarch to return to a line mechanic position at an
agreed-upon rate higher than Poarch had received when he
first started in that position, but lower than the rate he had
recently been requesting. Haskins' agreement, however, was
conditioned upon Respondent first finding a replacement
for him as a service writer. Respondent thereupon inserted
an advertisement in the newspaper for a service writer, but
this did not produce any acceptable applicants. After 2
weeks had gone by without any replacement being found,
Poarch became restive. Beginning about the last week in
September, Poarch repeatedly called on Haskins to honor
the agreement that he had made to return him to a line
mechanic's position. On one such occasion, Poarch gave
Haskins 2-weeks notice, at the end of which time he would
cease being a service writer and Respondent would have to
return him to the job of line mechanic. Haskins told Poarch
about the difficulties Respondent was experiencing in find-
mg a replacement for him, and also explained that Respon-
dent needed three men at the service desk and could not get
along without him. But this did not seem to appease Poarch.
Poarch's anxiety about the delay finally came to a boiling
point on Tuesday, October 5. At the beginning of that work-
day, Poarch notified Haskins that, if Haskins did not return
him to a line mechanic's position by 10 a.m. that same day,
he would quit his job. That same morning, Haskins asked
by Respondent as a witness. (4) On another occasion , in the latter part of
September , Zambuto, a mechanic, confronted with a repair problem relating
to a car's electrical system, had remarked to Gumaer that Poarch "just
doesn't understand what he's doing."
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gumaer to handle the matter. Gumaer was upset by
Poarch's ultimatum. He was on jury duty that week, and
had reported at the shop each morning before going to court
only to help write up the early morning repair orders. Gu-
maer pointed out to Poarch the unfairness of Poarch's quit-
ting at that particular time, and angrily told Poarch that if
Poarch planned to quit at 10 a.m., he might as well leave at
once. Thereupon, Poarch reconsidered his position, with-
drew his ultimatum, and agreed to remain with Respondent
as a service writer until Respondent could find a replace-
ment at which time he would be assigned to a mechanic's
job. With that understanding, which was acceptable to Gu-
maer , Poarch thereafter continued working for Respondent
as a service writer until his discharge 3 days later.
3. Poarch's union organizational activities
In the meantime, beginning in late September, Poarch
had begun speaking to employees working in the service and
body shop areas about representation by a union. Before the
start of his solicitation activities, presently to be reported,
he contacted and spoke to about 8 or 10 employees individ-
ually about that subject. These conversations took place in
the lunchroom, which is also the locker room, at the start
of the workday, during lunch, and at quitting time.
On October 7, around noon, during his lunch period,
Poarch drove to the office of the Retail Clerks. There he
conferred with a representative of that union, James Colum-
bo, signed a union designation card himself, and obtained
from Columbo a batch of additional cards for circulation to
the employees in Respondent's service and related depart-
ments. Upon his return to the shop, Poarch distributed the
union designation cards to about 30 employees and solicited
their signatures to such cards. Poarch fixed this period of
distribution as beginning about 12:15 p.m. and ending 20
minutes later. Poarch conducted his solicitation activities
mainly in the locker room, in the body shop area, and in the
new car preparation room. His activities met with a high
degree of success . By the end of that workday, he had some
21 signed cards. The signed cards were returned to him by
individual employees at his service desk.
The General Counsel makes no claim that Poarch's
solicitation activities were observed by any supervisory em-
ployee, except in one instance. Poarch testified that while
Donald Crego, an employee in the parts department, was
engaged in signing a card in his presence at the counter of
that department, Ralph Ellsworth, the parts department
manager, walked up to them, approaching as close as 2 or
3 feet away, but neither examining the card Crego was
signing nor saying anything to them about it. Poarch's testi-
mony in that respect was contradicted by Crego, called as
a witness by Respondent. Crego testified that, while he was
signing the card at the parts counter, Ellsworth was sitting
at his parts file at the opposite side of the parts room, a
substantial distance away, and did not observe him sign the
card. At the hearing, the General Counsel made no effort
to impair Crego's credibility; indeed, he did not so much as
cross-examine him. Unlike Poarch, Crego was a disinterest-
ed witness. To the extent that the testimony of the two is in
conflict, I credit Crego.
Poarch further testified that the following occurred
within a few minutes after he left the Parts Department,
where he had obtained Crego's signature; He went to the
lunchroom and there, in the presence of about 8 other em-
ployees, asked Francis Fleming (I have already found that
Fleming was also employed in the parts department), to sign
a union authorization card but Fleming declined to do so,
stating that he could not do so because he was part of
management.4 Thereupon, he asked Fleming not to report
his'union solicitation effort to Ralph Ellsworth, the parts
manager, drawing from Fleming the response that "Ells-
worth knows it now and it won't be long until Clarke [Buck-
man] knows it." However, Fleming, called as a witness by
the General Counsel, disputed Poarch's account as to two
of its details. He denied that he referred to himself as a
member of management when he refused to sign, and de-
nied that he stated to Poarch that Ellsworth already knew
about the union activity going on. What he did say to
Poarch, according to Fleming, was that Ellsworth might
know, and if Ellsworth found out about it, other people
would also know.5 John Spencer, an employee who was
present in the lunchroom at the time of the occurrence in
question, was called as a witness by the General Counsel.
His testimony, while generally corroborating that of Poarch
in other respects, appears to support Fleming's denial of
Poarch's testimony that Fleming stated to him in effect that
Ellsworth already knew of Poarch's union activities. I credit
Fleming's denial in that respect.
Buckman, Haskins, and Gumaer testified that they ac-
quired no knowlege or information from any source of
Poarch's union activities, or of any union organizational
effort at that time, until some time after Poarch was dis-
charged.
4. The events of October 8 preceding Poarch's discharge
On Friday, October 8, at about 8:30 a.m., Poarch
reminded Gumaer that he was to go to the bank that af-
ternoon in order to sign the closing papers on a house he was
buying and that Gumaer had already given him permission
to do so on October 4. Gumaer agreed that Poarch could
go, adding that Poarch was to make sure his "repair orders
were in" and that Roger Skelton of the body shop took his
place as a service writer. Poarch testified that he spoke to
Skelton during the midafternoon at the service desk, in the
presence of Summers, and told Skelton that he was leaving
for the bank,6 and that it was 3:30 p.m. when he left.
According to President Buckman, he chanced to learn
of Poarch's absence about 2 or 2:30 p.m. that day under the
following circumstances: He came out to the service desk
Actually, Fleming, as the General Counsel in effect concedes, did not
occupy a managerial or supervisory position, even though, as some of the
evidence suggests, he may have regarded himself, and have been regarded by
others, as occupying the position of assistant parts manager The Parts De-
partment, also as already found, is a small one, composed of the parts
manager, Ralph Ellsworth, admittedly a supervisory employee, and three
other employees
5 Fleming also testified that he never told Ellsworth about his conversation
with Poarch
6 On October 4, also according to Poarch, when he first obtained permis-
sion to leave from Gumaer and was told to have Skelton cover for him, he
spoke to Skelton and Skelton agreed to do so.
BONENBLUST & BUCKMAN, INC.
and observed "a state of confusion 7 around the service
desk" and noticed that the only service writer present was
Summers . He inquired from Summers as to where Poarch
was, and Summers could not give him an answer, saying
only that Poarch had left; in addition, "no one that he could
talk to or inquire seemed to be able to give [him] an explana-
tion of where [Poarch] was," and neither Haskins nor Gu-
maer was accessible, as Haskins was out of town and
Gumaer was on jury duty. In consequence, he stayed on it
in the service department between 1 and 2 hours, during all
of which time Poarch was absent, trying to help Summers
cope with the situation. I note here, too, that the General
Counsel made no effort to impair Buckman's credibility in
this regard by cross-examining him thereon.
It was this episode, also according to Buckman, that
triggered the discharge of Poarch. His explanation therefor
was as follows: He was "very disturbed to think" that
Poarch, knowing that Gumaer was away on jury duty,
would leave without saying anything to him or even telling
Summers why he was leaving. Coupled with this, he learned
from Haskins, upon the latter's return to the plant between
4:30 and 4:45 that afternoon, that Haskins had not granted
Poarch leave for that afternoon and that Haskins did not
know the reason for Poarch's absence. Whereupon, he in-
structed Haskins to discharge Poarch when Poarch re-
turned, whether it be that Friday or on Monday, explaining
to Haskins that he thought it best to do so because Respon-
dent had had too many problems with Poarch that week,
including the ultimatum, as well as other problems during
his tenure as a service writer, and this was "the last straw."
Haskins effectuated the discharge at about 5:15 that
afternoon upon Poarch's return to the facility. Haskins gave
no details of the discharge interview, testifying only that he
told Poarch that "he was dismissed." According to Poarch,
whose uncontroverted testimony I credit, Haskins asked
him why he had left work without permission; and, al-
though he told Haskins that he had Gumaer's permission to
leave, Haskins told him that he was being terminated and
should look for another job, to which he protested that he
was satisfied with the job he had.
The following developments occurred in the aftermath
of the discharge: According to the uncontroverted and cred-
ited testimony of employee Spencer, he had a conversation
with Gumaer on October 9 about Poarch's discharge the
day before, and Gumaer then said that if he (Gumaer) "had
been here this would never have happened." Similarly, ac-
cording to Poarch's uncontradicted and credited testimony,
when he appeared at the facility early on October 9 in order
to pick up his tools, Gumaer and he talked about his dis-
charge the day before, and Gumaer said that "if he (Gu-
maer) had not had jury duty that week that this whole thing
never would have happened;" in addition, also according
to Poarch, when he told Gumaer, during this conversation,
that he had been discharged for leaving work without per-
mission , Gumaer acknowledged that he (Gumaer) had
granted him permission and commented further that he
"didn't see why he (Poarch) had to have anyone else's."8
r The confusion , he explained, consisted of customers' waiting to be taken
care of, the ringing of the telephone , and mechanics trying to get prices.
8 Both Poarch and Spencer testified , without contradiction , that it is com-
pany practice for an employee who wants to leave work early to get permis-
sion only from his immediate supervisor According to Poarch , he knew that
1015
Shortly thereafter, Poarch spoke to Haskins in the latter's
office. According to Poarch, he got no direct answer to his
question to Haskins as to why he was discharged, if he was
not discharged for leaving without permission; and Haskins
said only that he (Haskins) was older and wiser and that it
was better for him to seek employment elsewhere. Haskins'
account of this conversation made no mention of being
asked the above question. However, he acknowledged that
Poarch asked him to reconsider the discharge and reinstate
him and that he refused, telling Poarch that he (Poarch)
would be better off if he found employment elsewhere as he
did not seem to be happy with the Company. In all these
circumstances, as Poarch impressed me as a more forthright
witness than Haskins, and in view of the logic and probabili-
ties of the situation, I credit Poarch's testimony, and find,
that he did inquire from Haskins as to why he was dis-
charged, if he was not discharged for leaving work without
permission, and that Haskins did not answer his inquiry but
instead told him that it was better for him to seek employ-
ment elsewhere. On October 11, the following Monday,
Poarch went to see Buckman. Earlier that morning, Jim
Columbo, the representative of the Retail Clerks, had tele-
phoned Buckman and had prevailed upon Buckman to lis-
ten to Poarch's side of the story. At the same time, Columbo
told Buckman that the Retail Clerks had been selected to
represent Respondent's employees. This information had
already come to Buckman's attention earlier that morning,
according to Buckman, when he opened a letter from the
Retail Clerks, which arrived in the mail the prior Saturday.
Only Poarch testified as to the conversation which came
about through Columbo's intercession. I credit this testimo-
ny. According to Poarch, he inquired from Buckman as to
why he had been discharged since he did have permission
to leave on Friday afternoon, and Buckman replied that
"we had better leave things as they were, and they didn't
think they could keep [him] happy there."
Analysis and Conclusions
Respondent contends in its brief that "Respondent's
owner and President, Mr. Buckman, ordered Poarch to be
dismissed on October 8, when to the best of his information
and belief Poarch was absent without leave from the prem-
ises during working hours and his absence caused a consid-
erable disruption of the business. This absence was one
further problem in addition to others experienced by the
Company with Poarch in the preceding weeks which
prompted Respondent's decision to terminate Poarch." The
General Counsel, on the other hand, contends, in effect,
that the asserted reasons for the discharge constituted a
pretext to mask the discharge of Poarch because of his
union activity.
I have heretofore found that, in all the circumstances
of this case, Respondent's several complaints concerning
Poarch's work performance could not have played a signifi-
cant part in shaping Respondent's decision to discharge
Poarch. Indeed, Haskins testified in this regard that, at the
this had occurred in the cases of flat rate mechanics ; and, according to
Spencer, he had left work early after getting permission to do so from his
immediate supervisor in the body shop and was not required to get permis-
sion from either Haskins or Buckman I credit both Poarch and Spencer in
this regard
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time Poarch was being discharged, the wage scale for
Poarch had been fixed and Respondent was ready to return
Poarch from the job of service writer to that of line mechan-
ic if and when a suitable replacement was found. It is also
apparent from the record that, although Poarch had earlier
manifested considerable impatience over the time it was
taking to effectuate that return, he had, in effect, indicated
as of 3 days before his actual discharge that he was recon-
ciled to waiting to be transferred until Respondent could
find a suitable replacement for him in his service writer's
job. It follows therefrom that Buckman's testimony that the
problems that Respondent had with Poarch during the week
of the discharge, as well as prior problems with Poarch,
figured in his decision to discharge Poarch does not with-
stand scrutiny. Accordingly, I do not credit this testimony
of Buckman . I reach a similar conclusion as to Buckman's
testimony that the precipitating cause of the discharge of
Poarch was Poarch's absence during the afternoon of Octo-
ber 8, and the resulting confusion in the service department
because of such absence. Granting that such confusion did
exist, I am persuaded, and find, that Buckman's reaction
thereto was not that of one convinced that Poarch was
absent without permission, but that of one determined to
seize upon his absence as a ground for discharging him
irrespective of whether he had obtained such permission.
Noteworthy in this regard are the facts that Buckman acted
precipitately without waiting to consult with Supervisor Gu-
maer who, under existing procedures, could have, and had,
granted such permission to Poarch; and without affording
Poarch an opportunity to explain the circumstances of his
absence. Significantly, too, when Poarch explained to Has-
kins at the time of his actual discharge that he had such
permission from Gumaer, and when he thereafter gave the
same explanation to Buckman, his explanation in each in-
stance was unheeded. I am therefore persuaded, and find,
that none of the reasons asserted by Respondent for
Poarch's discharge withstands scrutiny.
I come therefore to the General Counsel's contention,
in substance, that the real reason for Poarch's discharge was
his union activity. It is well established, as Respondent in
effect contends, that essential to a finding that an employer
violated the Act by discharging an employee for union ac-
tivity is proof that the employer knew of that employee's
union activity .9 In this regard, it is apparent from my find-
ings herein that no convincing proof has been adduced by
the General Counsel that Respondent had any direct knowl-
edge thereof. Furthermore, I am not persuaded by the Gen-
eral Counsel's contention in his brief that knowledge may
be inferred here from the small size of Respondent's facility.
For while it is true, as he further contends, that on the day
before Poarch's discharge, Poarch carried on union activi-
ties openly in all areas of the shop where Respondent's
service department and parts department were located and
where it had a complement of about 25 employees, any
inference of knowledge therefrom would have to be based
on mere suspicion.1° Thus, (1) it is not disputed that Re-
9 See Benjamin F Rich Company, 191 NLRB No. 89
10 Wiese Plow Welding Co Inc, 123 NLRB 616, and Malone Knitting
spondent first learned from the Retail Clerks of its organiza-
tional effort among the employees herein subsequent to
Poarch's discharge; and (2) although Poarch's organization-
al effort in behalf of the Retail Clerks antedated his dis-
charge by 1 day, it is apparent from his testimony that this
effort had been of short duration, i.e., 20 minutes. It is
therefore just as consistent with the logic and probabilities
of the situation to infer and find that, notwithstanding the
smallness of the facility, notice of Poarch's union activity
did not come to the attention of management as of the time
of Poarch's discharge. Moreover, even assuming , contrary
to my findings above, that-an inference is warranted that
Respondent did have knowledge thereof prior to Poarch's
discharge, I would not find that Poarch 's discharge was
motivated by antiunion reasons , which is a further precon-
dition to a finding that Poarch was discriminatorily dis-
charged. Indeed, in the absence here of any evidence, either
direct or indirect, of antiunion animus, ll such a finding
would also have to be based upon inference. And I see no
warrant for finding a violation by mounting inference upon
inference. Accordingly, as the record, while not free from
doubt, does not preponderate in favor of a finding that
Respondent discharged Poarch because of his union activi-
ty, and as no other basis exists for finding that such dis-
charge contravened the Act, I conclude, and find, that the
allegations of the complaint, as amended, that Respondent
discharged Poarch, and failed and refused thereafter to rein-
state him, in violation of Section 8(a)(3) and (1) of the Act,
have not been sustained.
Upon the basis of the entire record, I make the follow-
ing:
CONCLUSIONS OF LAW
(1) Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
(2) The UAW and the Retail Clerks are each labor
organizations within the meaning of Section 2(5) of the Act.
(3) Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and ( 1) of the Act
by discharging Donald R. Poarch on October 8, 1971.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case
I hereby issue the following recommended:
ORDER 12
The complaint is dismissed in its entirety.
Company, 152 NLRB 643, cited by the General Counsel to support such an
inference , are clearly distinguishable on their facts. Cf Dubin-Haskell Lining
Corp v N L R B, 375 F.2d 568 (C.A. 4), setting aside in relevant part 154
NLRB 641
11 It is not alleged in the complaint, as amended, nor does the record show
that Respondent has otherwise interfered with the rights of its employees
under Sec 7 of the Act.
12 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes