Continental Chemical Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 705 (N.L.R.B. 1977)

CONTINENTAL CHEMICAL CO.
Continental Chemical Company and Warehouse
Union Local 17, International Longshoremen's &
Warehousemen's Union. Case 20-CA-11904
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 10, 1977, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The General Counsel alleged in the complaint that
Respondent violated Section 8(a)(1) of the Act by the
following conduct of its agents: instructing employee
Robert Moore not to discuss wages, interrogating
Moore about his and his fellow employees' union
activities, creating in the minds of its employees the
impression that their union activities were under
surveillance, and placing Moore on probation be-
cause of his concerted protected activities. The
General Counsel also alleged that Respondent
violated Section 8(a)(3) of the Act by discharging
Moore because of his union activities. The Adminis-
trative Law Judge concluded that the General
Counsel did not prove any of these unfair labor
practice allegations by a preponderance of the
evidence, and therefore recommended that the
complaint be dismissed in its entirety. The General
Counsel excepted to those conclusions. We agree
with the General Counsel with regard to each of the
8(a)(1) allegations. However, we adopt the Adminis-
trative Law Judge's recommendation to dismiss the
8(a)(3) matter, although we rely on a rationale
different from that set forth in his Decision.
The pertinent facts are as follows. Respondent is
engaged in the manufacture and distribution of
chemical and chlorine products. Many of its custom-
ers are swimming pool supply stores. Respondent
provides some of its products to these stores by
means of its own trucks and drivers. One such driver
was Robert Moore. Moore was employed by Re-
' All dates herein are in 1976 unless otherwise stated.
2 The other active union adherent was Timothy Espley. Espley was the
first employee who sought to interest his coworkers in joining a union and
232 NLRB No. 112
spondent from May 1974 until his discharge on
September 8, 1976.'
In April, Operations Manager Terry Lowe called
Moore into his office to discuss customer complaints
about Moore's conduct and attitude. According to
credited testimony, Lowe also discussed the fact that
Moore had been talking to other employees about
the need for better wages. Lowe then told Moore to
keep his own salary problems to himself and to
"mind his own business" regarding other employees'
salaries. Lowe placed Moore on 90-day probation.
According to Lowe, the reasons which dictated
probation were Moore's poor attitude with customers
and his discussion of salary with the other employees.
Moore became one of two active union advocates
among Respondent's employees. 2 In August, he
contacted Local Union 17 of the International
Longshoremen's and Warehousemen's Union seek-
ing its representation of Respondent's employees.
Thereafter, he provided the use of his home in mid-
August for an organizational meeting attended by 10
of Respondent's employees, and also obtained
authorization cards from approximately 9 of his
coworkers.
On the day following the union meeting at Moore's
home, Wayne Bradley, Moore's supervisor, made the
following comments to Moore at Respondent's
plant: "I know about the meeting at your house. You
ought to be more secretive in what you do. If I can
find out about it, other people can find out about it."
Bradley and Moore discussed topics relating to the
Union on approximately four other occasions as
well. At one discussion, Bradley stated to Moore:
i[T]he front office wouldn't like it if they found out
about [your] Union activities." Bradley also ques-
tioned Moore regarding the benefits sought by the
employees and asked Moore which employees had
attended certain union meetings. In addition, Brad-
ley talked to some of Respondent's other employees
about the Union. Bradley asserted at the hearing that
his interest in the Union was purely for personal
reasons-he stated that he thought he could become
a union member and wanted to know what benefits
union representation could provide for him.
On either September 7 or 8, Respondent received a
telegram from the Union seeking recognition for the
purposes of collective bargaining. Thereafter, in the
early evening of September 8, Lowe telephoned
Moore informing him that he had been terminated.
Lowe told Moore that he based his discharge on
continued complaints received from Respondent's
customers regarding Moore's attitude and perfor-
mance relating to his deliveries of Respondent's
solicited Moore's assistance toward that objective. Espley also obtained
authorization cards from 20 of his fellow employees. However. he. unlike
Moore. was not terminated from Respondent's employ.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
goods. In particular, Lowe cited a complaint made
earlier that same day by the owner of the Vacaville
Pool Service and Supplies Company concerning
Moore's poor attitude and uncooperative conduct on
that day.
As mentioned above, the Administrative Law
Judge dismissed each 8(a)(1) allegation of the
complaint, and the General Counsel excepted there-
to. First, the General Counsel contended that Lowe's
comments to Moore regarding Moore's discussion of
salary with the employees violated the Act.3 We
agree with the General Counsel and find that Lowe's
statement to Moore ("mind your own business")
regarding employee salaries constituted restraint and
coercion of Moore's Section 7 rights, and, thus,
violated Section 8(a)(1). Second, the General Coun-
sel asserted that Respondent violated the Act when
Lowe placed Moore on 90-day probation. Lowe
admitted that one of the reasons he placed Moore on
probation was his discussion of wages with the
employees. We find that such discussions constitute
concerted protected activity. We also find that
Lowe's admission, by its very nature, demonstrates
that he restrained and interfered with Moore's
exercise of protected concerted activities and there-
fore violated Section 8(a)(1). Third, the General
Counsel maintained that Bradley violated the Act by
interrogating employees about their own and their
coworkers' union activities. 4 Credited testimony
indicates that Bradley questioned Moore about the
types of benefits the employees sought from union
representation and which employees attended union
meetings. Moreover, Bradley admitted discussing the
Union with various other employees. We find merit
in the General Counsel's contention that these
interrogations reasonably tended to interfere with the
employees' Section 7 rights and therefore violated
Section 8(a)(1). Fourth, the General Counsel con-
tended that Bradley violated the Act by creating in
the minds of employees the impression that their
3 In support of his recommendation to dismiss that allegation, the
Administrative Law Judge relied on the facts that the word "union" was
never mentioned and that the remarks occurred at a time when L owe had
reprimanded Moore because of customer complaints. The Administrative
Law Judge inferred from those facts that "Lowe probably made a reference
to Moore's excessive talking and suggested that he spend more time paying
attention to his job duties." The facts cited by the Administrative Law
Judge. however, are not dispositive of whether Lowe's comments to Mxore
interfered with his exercise of the right to engage in protected concerted
activities, nor do those facts support the inference reached by the
Administrative Law Judge.
4 The Administrative Law Judge dismissed this allegation on the basis
that Bradley was motivated to ask those questions solely by his own interest
in possibly becoming a union member. However, it is well established that
"interference. restraint, and coercion under Section 8(a)(1) of the Act does
not turn on the employer's motive. .... The test is whether the employer
engaged in conduct which. it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act." American Freightways
Co., Inc., 124 NLRB 146. 147 (1959). See also Lition Dental Products Division
of Litton Industrial Products, Inc., 221 NLRB 700, fn. 2 (1975).
union activities were under surveillance. We find that
Bradley's statement to Moore ("I know about the
meeting at your house. .... If I can find out about it,
other people can find out about it.") also reasonably
tended to interfere with its employees' right to
engage in union activities, and, accordingly, violated
Section 8(a)(l). 5
Finally, as noted above, the Administrative Law
Judge dismissed the 8(a)(3) discharge allegation. In
support of that conclusion, he found that Lowe,
Respondent's agent who discharged Moore, was
without knowledge of Moore's union activities at the
time the discharge occurred. The Administrative Law
Judge based that finding on Lowe's denial of such
knowledge and Bradley's testimony that he never
told Lowe or any other management personnel of his
knowledge of Moore's union activities. The General
Counsel excepted to this finding, contending that
Respondent, as a matter of law, possessed knowledge
of Moore's union activities at the relevant time. We
agree with the General Counsel on this matter.
As previously mentioned, Bradley told Moore,
immediately following the day on which Moore
provided the use of his home for a union organiza-
tional meeting, that "I know about the meeting at
your house." Respondent also admitted in its answer
to the complaint that Bradley was a supervisor.
According to well-established Board precedent,
knowledge of an employee's union activities by a
supervisor is imputed to Respondent.6 This rule
prevails despite denials by the supervisor that he
mentioned the employee's conduct to other manage-
ment personnel and denials by management person-
nel that they otherwise knew of the employee's union
activities.7 Consequently, we find that Respondent
had knowledge of Moore's union activities. We also
find that Respondent's statements and conduct
provide sufficient evidence to infer a discriminatory
intent to discourage union membership.8 According-
ly, the General Counsel has established a primafacie
5 The Administrative Law Judge based his dismissal of this allegation on
the inference that Bradley's remarks to Moore were "obviously intended as
the warning of a friend and colleague to be more discreet in such matters."
The Board has stated, however, that the test of interference, restraint, and
coercion under Sec. 8(aX 1) does not depend on whether the supervisor and
employee are on friendly or unfriendly terms. Florida Steel Corporation, 224
NLRB 45 (1976). Rather, the test is that stated in fn. 4. supra. Here, even if
Bradley did warn Moore for personal reasons, it would be reasonable for
Moore to have assumed that his "friend" was warning him about actual
surveillance undertaken by the Company.
6 See. e.g., James T Hughes Sheer Metal, Inc., 224 NLRB 835. fn. 2
(1976); Rilei Stoker Corporation. 223 NLRB 1146, 1151 (1976); Warren
Chateau Hall, Inc., 214 NLRB 351,352 (1974).
7 See, e.g., James T Hughes Sheet Metal, supra at 837. Moreover. the
Board follows this rule despite the fact that the supervisor is "friendly" with
the employee, as reflected by the testimony in this case. See, e.g., Asiro-
Space Laboratories, Inc., 203 NLRB 700, 702 (1973).
n As noted above, Bradley told Moore at one of their discussions that
"the front office wouldn't like it if they found out about [your] Union
activities." Moreover, Moore was discharged within a single day after
706
CONTINENTAL CHEMICAL CO.
case for a violation of Section 8(a)(3). Thus, the
burden of coming forward shifted to Respondent to
demonstrate that Moore's discharge was motivated
without regard to discriminatory considerations.
Moore indeed was prone to arousing complaints
from Respondent's customers regarding his conduct
and attitude. In March, Lowe received a complaint
about Moore from Capital Pools, a customer of
Respondent. Lowe reprimanded Moore and the
latter agreed to try to improve his attitude. In late
May, Respondent received a complaint regarding
Moore from Guyton's Pool Center, another custom-
er. Walter Yell, its manager, testified that Moore was
"pushy" and rude and delivered chemicals in a
dangerous manner. Yell informed Respondent that
he no longer wanted Moore to make deliveries if he
engaged in such conduct. In late summer, Robert
McLaren, owner of Capital Pools, also complained
to Respondent about Moore. McLaren testified that
Moore interrupted his wife while she was waiting on
customers and initially refused to deliver the chemi-
cal goods inside the store, as required. McLaren had
encountered earlier problems with Moore and told
Respondent that he did not want Moore back on his
premises if he continued to exhibit such a poor
attitude. McLaren further threatened that, if a
similar incident occurred in the future, he would
terminate his business relationship with Respondent.
In addition, Orville Sprock, owner of Crystal City
Pool Supply and a customer of Respondent, twice
complained of Moore's conduct. On the first occa-
sion, Sprock complained that Moore refused to count
the cases of products being delivered and, in his rush
to leave the premises, backed his truck into the cases
and caused some of them to topple. On the second
occasion, occurring within a week of Moore's
discharge, Sprock complained that Moore again
backed his truck into some cases and scattered them
about.
The final customer complaint occurred on Septem-
ber 8, the day on which Moore was discharged.
Francis Amerine, assistant at Vacaville Pool Service,
testified that Moore refused to pick up five chlorine
cylinders (with a credit value of $250) for return to
Respondent. Additionally, Amerine stated that
Moore left some cylinders in a position that blocked
a doorway and delivered a broken bag of chemicals
which could not be resold in that condition. Gordon
McDonald, owner of the store, thereafter registered a
heated complaint with Respondent.
Respondent received a telegram from the Union requesting recognition.
Additionally, Respondent committed several independent violations of Sec.
8(aX I).
Moore received a letter from Respondent a few days after his
termination setting forth the reasons for his discharge (continued unsatisfac-
tory attitude toward customers despite agreeing to improve his conduct;
latest complaint by Vacaville Pool). Moore testified that the reasons
This evidence of customer complaints and threats
to discontinue business with Respondent amply
demonstrates that Respondent had legitimate busi-
ness reasons for discharging Moore. Furthermore,
the last two complaints occurred within a week of
Moore's discharge, and Respondent discharged
Moore immediately after the last complaint. The
evidence also clearly establishes that, in discharging
Moore, Respondent relied on these business consid-
erations. 9 In response to this persuasive evidence
justifying Moore's discharge, the General Counsel
failed to provide any evidence to rebut Respondent's
assertions. In these circumstances, we find, in accord
with Respondent's contentions, that Moore was
discharged not for his protected activities but rather
for economic considerations.10 Thus, contrary to the
conclusion of the Administrative Law Judge, we find
that Respondent did not violate Section 8(a)(3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Warehouse Union Local 17, International
Longshoremen's & Warehousemen's Union, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By instructing employee Robert Moore not to
discuss wages among its employees, placing Moore
on 90-day probation because he discussed wages
among the employees, creating in the minds of its
employees the impression that their union activities
were under surveillance, and interrogating its em-
ployees about their and their coworkers' union
activities, Respondent has violated Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the policies of the
Act.
mentioned in the letter were identical to those presented to him by
Respondent's president, which were the same as those testified to by Lowe.
io See Independent Life & Accident Companv d hb a Herald Life Insurance
Copoany, 227 NLRB 1546, 1553 (1977); Erie Strayer CompranI, 213 NLRB
344, 346, at fn. 9 (1974); P. G Berland Paint City, Inc., 199 NLRB 927. 928
(1972). See also Concrete Technology, Inc., 224 N LR B 961, 965 (1976).
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Continental Chemical Company, Sacramento, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Instructing its employees not to discuss wages
among the employees.
(b) Placing an employee on probation because he
discussed wages among his fellow employees.
(c) Creating in the minds of its employees the
impression that their union activities are under
surveillance.
(d) Interrogating its employees about their and
their coworkers' union activities.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under the National Labor Relations
Act, as amended.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its place of business in Sacramento,
California, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint, insofar
as it alleges that Respondent unlawfully discharged
Robert Moore, be, and it hereby is, dismissed.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and we
intend to abide by the following.
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT instruct our employees not to
discuss wages among the employees, place our
employees on probation because they discuss
wages among the employees, create in the minds
of our employees the impression that their union
activities are under surveillance, and interrogate
our employees about their or their coworkers'
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
CONTINENTAL CHEMICAL
COMPANY
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard in Sacramento, California, on March 17, 1977,
based on a complaint dated October 22, 1976, which was
duly served on Respondent, and Respondent's answer to
the complaint dated November 3, 1976.1 The complaint
stemmed from a charge filed September 9 charging the
Employer's refusal to recognize the Union and the
Employer's termination of Robert Moore because of his
union activities as being violative of the Act.2
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
I The significant and relevant events with which we are herein concerned
occurred in the year 1976 and unless otherwise indicated all dates
hereinafter will refer to the calendar year 1976.
2 Both at the hearing and in Respondent's brief there was substantial
time devoted to the question as to whether or not the complaint was too
broad to be supported by the charge inasmuch as the charge did not indicate
anything regarding the unlawful interrogation or surveillance. Respondent's
objections at the hearing to the receipt of evidence regarding what he
considered to be the "too broad allegations" were rejected. The complaint is
not restricted to the precise language of the charge. So long as there is a
708
CONTINENTAL CHEMICAL CO.
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record in this case and my observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the
manufacture and distribution of chemical and chlorine
products. During the past calendar year, in the course and
conduct of its business operations, Respondent purchased
materials in excess of $50,000 directly from outside the
State of California. Respondent admits and I herewith find
.that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOI VED
The Warehouse Union Local 17, International Long-
shoremen's & Warehousemen's Union, hereinafter the
Union, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The only real problem involved herein is one of
discerning and perceiving the true motivating factors which
precipitated the discharge of Robert Moore.
B. The Evidence
Robert Moore was first employed by Respondent in May
1974 and worked until his discharge on September 8.
Moore was first employed as a laborer in the liquid section
at a rate of $2.50 an hour; after approximately 3 months he
was promoted to a local truckdriver (bobtail truck) and
received a 50-cent-an-hour increase; there were other small
raises and at the time of his discharge he was a diesel
truckdriver receiving $4.25 an hour. His immediate
supervisor was Wayne Bradley whose title was traffic
supervisor and Respondent stipulated that Bradley was a
supervisor within the meaning of the Act.3
There is no question but what Moore was active in the
employees' efforts to bring a union into Respondent's
plant. According to Moore, he was the most active
employee in seeking organization. However, Timothy
Espley, whose testimony I credit over that of Moore,
timely charge the complaint may allege any matter closely related to or
growing out of the charged conduct. or related to the controversy which
produced the charge, or which relates back to or defines the charge more
precisely. N.L.R.B. s. 'ant Milling Co. 360 U.S. 301 (1959); National
Licorice Co. v N.L. R. B 309 US. 350 (1940), Erher. Inc. d ' a El Corte.
Hotel v. N L R. B. 390 F.2d 127 (C.A. 9, 1968). Thus, in N.L.R.B, v. Kohler
Companv. 220 F2d 3, 7 (C.A. 7. 1955). the court said: "So long as the Board
entered the controversy pursuant to a formal charge, it ma) allege whatever
it finds to be a part of that controversy. But if It gets so completely outside of
the situation which gave rise to the charge that it may be said to be initiating
the proceeding on its own motion, then the complaint should fall as not
testified that he was the employee who first sought to
interest his fellow employees in joining the Union and
Moore volunteered to help. Espley asked Moore to find a
union that would be willing to accept them, because Espley
was a maintenance employee and did not have the
opportunity to get away from the plant as did Moore, who
was involved in driving a truck. Espley testified that he
obtained approximately 20 of the 29 union authorization
cards that were obtained. According to Moore, his
organizational efforts started sometime in July and it was
in August that he contacted the Union. In the middle of
August an organizational meeting attended by 10 employ-
ees of Respondent was held at Moore's home. According to
Moore, the morning after this meeting Bradley said to him,
"I know about the meeting at your house. You ought to be
more secretive in what you do. If I can find out about it,
other people can find out about it." Moore testified that he
spoke to Bradley on three or four occasions and on each
occasion Bradley was interested in what kinds of things we
were going to ask for, whether it was wages, benefits, and
how many employees were interested in the Union.
Moore related that on one occasion when he had been
called into Terry Lowe's office for a reprimand that Lowe
had said to him, "I have had complaints from the
employees that you're discussing wages. You're getting
them upset. You can't do this."
On September 8 at approximately 5:30 in the evening,
Moore received a telephone call from Terry Lowe at which
time Lowe informed Moore that he was terminated as of
that day. According to Moore, he (Moore) then asked
Lowe, "If it's because of the Vacaville Pool incident, it
wasn't my fault," and he (Lowe) said no, that wasn't it.
"And I told him, 'Well, I'd like my check,' and he said,
'Well, come in in the morning and we'll give it to you.' "
When Moore insisted that he was entitled to his money
immediately, he was told by Lowe to come in and get it,
but then Moore changed his mind and said he would come
in the following morning and pick up his check.
Wayne Bradley acknowledged that he had talked to a
number of employees concerning the Union, including
Moore who had asked him to sign a union authorization
card. His testimony, which I herewith credit, unmistakably
indicated that he was curious about the Union and talked
to other employees about the Union because he was of the
opinion that he could and would become a member and he
wanted to know more about the Union for his own
personal reasons. It is apparent that he cautioned employ-
ees about talking "unionism" on the job and the necessity
of a certain degree of discretion because he was personally
concerned as to what Respondent's attitude would be and
not because of any conduct which might be attributed to
Respondent tending to coerce, interfere with, or restrain
supported by the charge." For a specific case which permitted allegations of
interrogation and surveillance in the complaint based on a charge which
only alleged a discnminatory discharge see Hotel Conquistador, Inc, d b a
Hotel Tropicana. 398 F.2d 430 (C.A. 9. 1968).
3 From my observation and so far as the record reveals. Bradley
occupied a position more commonly known as a "dispatcher." The job of
truck dispatching is a lower level borderline supervisory job and oftentimes
is included within the bargaining unit. Since Respondent has acknowledged
the supervisory status of Bradley it is not an issue. but the level and type of
his responsibilities must be considered in evaluating his conduct vis-a-vis the
Union in this dispute.
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of their Section 7 rights. His
remarks to Moore about the union meeting was obviously
intended as the warning of a friend and colleague to be
more discreet in such matters and could not have interfered
with, restrained, or coerced Moore in anyway.
Bradley testified that prior to the discharge of Moore he
had never spoken to Mr. Lowe or Mr. Lavelle, the
company president, regarding the union activity among the
employees at Respondent's plant. Bradley testified that to
the best of his knowledge the union activities of the
employees were kept secret until the telegram from the
Union demanding recognition was received. 4 Bradley
further testified that he had received complaints from
customers, as well as Ed Kochish, the sales representative,
regarding Moore's inadequate performance on the job and
that it had been necessary for him to report these incidents
to his superior, Mr. Lowe. Bradley testified that he was not
consulted, however, by Mr. Lowe at the time Moore was
terminated. Bradley regarded Moore as a difficult employ-
ee. Tim Espley, who initiated the union activities at
Respondent's plant, described Moore as "hot-headed."
Walter Yell testified that he is the manager of Guyton
Pool and is a customer of Respondent. Yell testified
regarding an incident with Moore in which Moore was
insulting to the customers and to him (Yell) and that he
had reported the circumstances to Ed Kochish with the
comment, "that I didn't want him back on the premises if
that's the way he was going to operate the rigs."
Orville Sprock, owner of Crystal Pool Supply, testified
that he had complained to Wayne Bradley because of
Moore's refusal to work with him in counting the cases of
products delivered and his generally impudent, uncoopera-
tive manner concluding by telling Bradley, "I was really
upset and I told him if he ever sent that driver back to
deliver chemicals, I'd quit taking chemicals from him."
Robert McLaren, owner of Capital Pools, testified that
he had complained to Ed Kochish on more than one
occasion. When Moore refused to deliver the chemicals
into the store where they belonged, instead of outside the
store area where they were accessible to young children or
could be stolen, he (McLaren) told Kochish, "I did not
want this man back on the premises with that attitude, that
if he did continue, we'd have to go to another chemical
company."
Frances Amerine testified to the Vacaville Pool incident
which led to the discharge of Moore. Amerine stated that
she was a general assistant or "jack-of-all-trades," for
Vacaville Pool Service and Supplies and that Moore had
refused to pick up five chlorine cylinders as she requested
on September 8 and that each of these cylinders had a
credit value of $50 (a total of $250) with Respondent
Company. A failure to return the cylinders resulted in an
additional $250 billing for the customer. Amerine testified
that when her boss, Gordon McDonald, returned from
lunch and saw that the cylinders had not been picked up by
Respondent's driver he was quite angry. Mr. McDonald
had lunched that day with Ed Kochish and he so expressed
himself to Kochish. Additionally, Amerine said the
I There were indications in the record that the Union failed to identify
itself in their telegram to Respondent. However, on September 7 the Union
filed a petition for an election-this was docketed as Case 20-RC-13753.
The record does not reveal the status of this petition.
cylinders had been left in the doorway which prevented her
from getting to the liquid acid and she had asked Moore to
remove them so that she might have access to the liquid
chlorine and acid, but he did not do so. Moreover,
Amerine testified that Moore left "a broken bag of
diatomaceous which wasn't any good because people will
not take a broken bag."
Ed Kochish, the company sales representative, con-
firmed the testimony of the customers as heretofore related,
indicating that in each instance he had relayed this
information to Wayne Bradley and in most cases had
advised Lowe of the type of work being performed by
Moore and the customer complaints which he (Kochish)
was receiving. Besides confirming the testimony of Ame-
rine, Kochish added that Moore had also delivered some
35-pound pails of dry chlorine which were greasy and that
the broken bag of soda ash had been partially spilled on
the customer's driveway. Kochish testified that he immedi-
ately called Wayne Bradley regarding the conduct of
Moore at Vacaville Pool which occurred on September 8.
Mr. Terry Lowe testified that on September 8 he was
operations manager in charge of traffic maintenance and
production for Continental Chemical and as such had
responsibility for the performance of the truckdrivers.
Lowe reported to the president, Dan Lavelle. He testified
regarding the various customer complaints regarding the
performance, or lack of performance, by Robert Moore as
reported to him by Wayne Bradley and Ed Kochish. He
further testified that he had talked to Moore on one or two
occasions regarding his uncooperative, belligerent attitude
and that shortly before his discharge he had been placed
under a 90-day probation. Lowe denied that he ever told
Moore to stop talking with other employees about wages
but acknowledged that he had told him "in fact to keep his
salary, his business and the employees-quit harassing the
other employees about what he was making.... I said
that I would appreciate it if he would mind his own
business, but I did not direct him not to discuss-I
couldn't, even if I wanted to."
Lowe testified that he was directly responsible for the
discharge of Moore and that he had not consulted with
Bradley immediately prior to the discharge but that it was
the Vacaville Pool incident which he felt was the last
complaint regarding Moore that he was going to tolerate.
Lowe testified he had absolutely no knowledge of Moore's
interest or activity on behalf of the Union until he (Moore)
raised the issue at the time Moore was being advised by
Lowe of his discharge.
There was also testimony in the record to the effect that
Moore was the only driver that Bradley had found it
necessary to report to Mr. Lowe-apparently in all other
instances Bradley had been able to correct the drivers' poor
performance or difficulties on his own.
General Counsel's Exhibit 2, the termination letter from
Respondent to Robert Moore from Terry Lowe, confirms
the reason testified to by Lowe as the final straw which
precipitated the discharge of Moore.s
s The termination letter is dated September 9. General Counsel
attempted to show that the letter was an afterthought because, although it is
710
CONTINENTAL CHEMICAL CO.
C. Analysis and Conclusions
Generally speaking, an employer is held responsible for
statements or acts of his supervisors which constitute any
sort of interference with self-organization of his employ-
ees. 6 Normally an employer is held responsible, regardless
of whether the statements or conduct occur within the
scope of the supervisor's employment.s However, under the
circumstances of this case I am convinced from the
credited testimony of Bradley that his questions and
actions were solely motivated by his own interest in
possibly becoming a union member and did not in any
manner interfere with, restrain, or coerce employees of
Respondent in the exercise of their Section 7 rights.8 In
Bonnie Bourne, d/b/a Bourne Co. v. N.L.R.B., 332 F.2d 47
(C.A. 2, 1964). modifying 144 NLRB 805 (1963), the court
set forth five factors to be considered in weighing the
lawfulness of company interrogation of employees. These
were: (I) The background, i.e., is there a history of
employer hostility and discrimination? (2) The nature of
the information sought, e.g., did the interrogator appear to
be seeking information on which to base taking action
against individual employees? (3) The identity of the
questioner, i.e., how high was he on the company
hierarchy? (4) Place and method of interrogation; e.g., was
employee called from work to the boss' office. Was there
an atmosphere of "unnatural formality?" and (5) Truth-
fulness of the reply. In applying these tests to the activities
of Bradley it becomes readily apparent there were no
violations of the employees' Section 7 rights.
Nor am I convinced that Terry Lowe ever instructed
Moore that he was not to discuss wages with other
employees in a manner that interfered with Moore's
dated September 9. it was not received by Moore until after his visit to the
Regional Office on September 14 and the exhibit bears the Regional Office
date stamp of September 23. Regardless of when the letter may have been
received by Moore. I am not convinced that it was an afterthought or that
the letter predated the time of its actual mailing.
i La Salle Srteel ('o. 72 NLRB 411, enfd 178 F.2d 822 ((.A. 7, 1949): Jmo
Silk Mills, Inc., 85 NLRB 1263 11949). modified and enfd. 185 F.2d 732
(C.A.D.C. 1950).
J. S. Ahercrombie Conmpany. 83 NI RB 524 (1949).
8 See National Food Stores. Inc., T A Bit Bear Super Markets, 169 NL RB
Section 7 rights. Moore acknowledged that the word
"union" was never mentioned during this conversation and
because the remarks occurred at a time when Moore was
being given an oral reprimand because of customer
complaints, Lowe probably made a reference to Moore's
excessive talking and suggested that he spend more time
paying attention to his job duties.9 I shall recommend
dismissal of all allegations of 8(aX I ) violations.
Knowledge of union activity is a necessary ingredient in
order to be able to find a violation of Section 8(a)(3) of the
Act. Terry Lowe was solely responsible for the discharge of
Moore and I am convinced from all of the evidence that he
was without knowledge of Moore's union activities. In
addition, through the testimony of fellow employees, as
well as customers with whom Moore had direct but
unsatisfactory relationships, Respondent has unmistakably
and credibly established good and sufficient reasons for the
discharge of Robert Moore on September 8 wholly
unrelated to protected concerted activity. I shall recom-
mend the dismissal of the 8(a)(3) allegation.
CONCI USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
94 (1968), where an employer was not held responsible for a lower level
supervisor's remarks Also W'estern Sample Book and Printing Co. Inc. 209
NILRB 384. 385 (1974).
9 If Moore's version of the conversation was accepted as the more
accurate, under a recent Board decision. it would constitute a violation.
Jeannette Corporation. 217 NLRB 653 1975). However, as indicated above.
I have credited the testimony of Lowe over that of Moore and at best this
would be an isolated incident of a very questionable violation unworthy ol a
remedyv.
711