E. F. MacDonald Stamp Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 846 (N.L.R.B. 1969)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. F. MacDonald Stamp Company and Local 738,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 13-CA-8622
Upon the entire record,' and from my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 2, 1969, Trial Examiner Leo F. Lightner
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Chicago, Illinois , on December 11,
1968, and January 6 and 7, 1969, on the complaint of
General Counsel, as amended, and the answer of E. F.
MacDonald Stamp Company, herein called the
Respondent.' The complaint alleges violations of Sections
8(a)(3) and (1) and 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, 61 Stat. 136, herein
called the Act. The parties waived oral argument and
briefs filed by the General Counsel and Respondent have
been carefully considered.
'A charge herein was filed on September 4, 1968 A complaint issued on
October 23, 1968, and was amended at the outset of the hearing herein All
dates herein , unless otherwise specified, are 1968
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation, doing business in
the State of Illinois, having its principal office and place
of business in the city of Dayton, Ohio. While it is
undisputed that Respondent has places of business,
warehouses, redemption stores and other facilities in 24
States other than Ohio, we are herein primarily concerned
with its activities in and around Chicago, Illinois.
Respondent is engaged in the sale, distribution and
redemption of trading stamps and related products.
Respondent ' s midwest regional office is located at 201
East Ogden Avenue, in the town of Hinsdale, Du Page
County, Illinois . The West Chicago District office is
located in Aurora, Illinois . These are the only facilities
involved in this proceeding.
During the 12 months preceding the issuance of the
complaint, a representative period, Respondent
manufactured, sold, and distributed, at and from its
Dayton, Ohio, place of business, products valued in excess
of $1 million, of which products valued in excess of
$500,000 were shipped to States of the United States
other than the State of Ohio, and products valued in
excess of $50,000 were shipped directly to Respondent's
locations in the State of Illinois. The complaint alleges,
the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 738, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respondent: (a),
interfered with , restrained , and coerced , its employees in
the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1), by ( 1), interrogation of
employees , in May by District Sales Manager Van Dyke
or Bolinger;' or (2), by Vice President Sanders threatening
an employee in Syracuse , New York, on May 29 , that if
the midwest region became unionized, Respondnent might
shut down its operation;' or (3), by Sanders , in June 1968,
promising employees guaranteed territory , job security,
elimination of indiscriminate terminations , and other
'The following errors in spelling of names in the record are hereby
corrected Van Dyke appears incorrectly as Van Dyck and Vandick;
Bernas appears incorrectly as Burnas and Burness , Jossem appears
incorrectly at Joseen, Johnson, Joseem and Jossen , Seyfarth appears
incorrectly as Seifert and Siefarth
'The allegations of par . 6(a) of the complaint were dismissed for lack of
evidence, on motion of Respondent , at the conclusion of General Counsel's
case-in-chief, insofar as those allegations assert misconduct by District
Sales Manager Monaco , or misconduct by Van Dyke or Bolinger in the
months of June and July
'The allegations of par 6(b), relative to interrogation by Sanders, on the
177 NLRB No. 45
E. F. MACDONALD STAMP CO. 847
benefits, or unlawfully interrogating employees ; or (4), by
Bofinger creating an impression of surveillance , on June
10 or December 3, or threatening employees with loss of
employment on September 15; or (b), whether the
discharge of Frank Clark, on August 30, was
discriminatorily motivated and an unfair labor practice in
violation of Section 8(a)(3) and (I) of the Act. Respondent
denies the commission of any unfair labor practices,
acknowledges the discharge of Clark, but asserts it was
for cause.
Supervisory Personnel and Agents
It is undisputed that Robert Sanders, vice president of
sales, Jack N . Moore , midwest regional sales manager,
Joseph S. Monaco, north Chicago district sales manager,
Fred Bofinger , south Chicago district sales manager, Peter
Van Dyke, west Chicago district sales manager, and J.
Rogers Vien , St. Louis district sales manager , were and
are, in each instance , an agent of the Respondent, and a
supervisor within the meaning of Section 2(11) of the Act,
at all times material herein.
Background and Sequence of Events
Except as noted, there is no dispute as to the
background facts and sequence of events herein.
The supervisory hierarchy of Respondent, to the extent
we are concerned with it herein, is comprised of: Sanders,
vice president of sales, who is located in Dayton, Ohio, at
the principal office of Respondent; Moore is midwest
regional sales manager, an area described , by him, as
parts of Indiana , Iowa, and Missouri, and all of Illinois;
four district sales managers, identified supra, are under
the direction of Moore, each responsible for a portion of
the territory described. Moore has overall supervision of
sales personnel , and is responsible for the business
activities of Respondent, in the midwest area. Hiring and
firing of employees is customarily handled by district
managers, who, nevertheless, report such activity to
Moore. There are 32 territory managers, or salesmen, who
work under and out of the four district offices described
as: north Chicago, south Chicago; west Chicago; and St.
Louis. However the number assigned to each office is
obscure. The primary duties of the territory managers is
the sale of trading stamps. They are paid on the basis of a
base salary , have a quota , and are paid a commission on
sales over set quotas. The base period is a 4-week period,
and the year is divided into 13 such pay periods.
Moore related that he has a safety meeting with his
four district managers each Monday. In turn each district
manager has a district meeting with his particular sales
force, customarily each Tuesday. In addition there are
normally four regional meetings of the entire regional
sales force each year. The regular spring, 1968, meeting
was held at a hotel northwest of Chicago, identified as
Pheasant Run, in February or March. The facts with
which we are herein concerned commence with the holding
of a special meeting on Monday, May 13, at the Holiday
Inn on Manheim Road, Chicago. While it may be inferred
that all of the sales personnel working out of the three
Chicago offices attended the May 13 meeting, the
personnel from the St. Louis office was not present.
Frank Clark, alleged discriminatee herein, related that
he received a communication immediately after April 25
same date , were dismissed , at the time indicated in the preceding footnote,
for lack of evidence.
on a letterhead bearing the inscription "E. F. MacDonald
Stamp Company New York Employee- Management
Council" advising Clark, and inferentially the other
midwest region territory managers, of the establishment of
an employee-management council in the New York
region, and suggesting the possibility of the establishment
of a similar employee-management council in the midwest
region.'
Walter J. Bernas credibly related that, in March or
April, he contacted the Union, Charging Party herein, and
had a telephone conversation with Tony Stevens, whose
capacity is obscure. I find it reasonable to infer that
Stevens was either a business agent or an officer of the
Local. It appears, from their testimony, that Bernas and
Kenneth Williams, who were territory managers assigned
to the south Chicago district, and Clark, who was
assigned to the west Chicago district, were the three
employees most active in an organizational effort. With
the exception of Reynolds and Peterson, both territory
managers in the west Chicago office, the three named
were the only employee witnesses appearing on behalf of
General Counsel. Bernas, as the result of his conversations
with Stevens, obtained the aid of Clark in an effort to
organize the employees in the west Chicago office.
Subsequently Bernas and Stevens scheduled a union
meeting of employees for the evening of Tuesday, May 14.
Bernas so advised Clark during the week preceding, which
commenced May 6.
It is undisputed that management called what might be
termed an emergency meeting for the morning of
Monday, May 13, at the Holiday Inn on Manheim Road,
Chicago. The term emergency is used in the sense that
notice of most regular meetings were sent by mail, while
notice of this particular meeting was by telephone call by
the three Chicago district managers to their respective
territory managers, commencing Friday, May 10, and
including Sunday, May 12.
Regional Manager Moore related that Respondent had
suffered a loss of a portion of the A & P account,
inferentially referring to Atlantic and Pacific Tea
Company.' As a substitute, Respondent's executive
personnel undertook sales of trading stamps to a different
food chain, identified as P & C, recognizing a possible
impact on Respondent's employees' earnings. According
to Moore, whom I find credible, during the week
preceding May 13, the executive committee of
Respondent, of which Moore was a member, made a
decision relative to sales to the P & C account.
Respondent's officials immediately undertook meetings of
its employee groups to advise them of the potential
impact. Moore addressed the management personnel and
employees of the three Chicago offices, relative to the
mentioned changes, for a period approximating between 1
and 2 hours. It appears that Moore was then questioned,
by unidentified employees, relative to the union efforts or
relative to his past experience with a union. The precise
nature of the questions and Moore's precise answers are
obscure. However, there is no allegation that any
representation, or response, by Moore, was violative of
the Act. Moore identified Richard Lippert, a territory
manager in the west Chicago office, as the employee who
raised a question about the Union. Lippert credibly
related that he had heard rumors concerning the Union,
'My ruling rejecting this particular exhibit, on the representation that it
was unsigned , is vacated and the exhibit is received . There is no contention
herein of a violation of the provisions of Sec 8(a)(2) relative to the
establishment of the New York Council.
`While Moore made reference to Kansas City, upper Michigan , Lansing,
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and since this was one of the few times employees were
together he thought it might be a good chance for the men
to discuss it among themselves . When Lippert raised this
inquiry, directed to Moore , Moore responded , according
to Lippert , that he was not in a position to answer any
questions concerning the Union, that, if the employees
wished to discuss the Union, management representatives
would withdraw , which they did. Later , being advised that
the men had completed the discussion , in the absence of
management, management returned and terminated the
meeting.'
Interference, Restraint, and Coercion
The complaint sets forth, in eight lettered subsections,
conduct, on the part of four supervisors : Monaco; Van
Dyke; Bofinger ; and Sanders , allegedly violative of the
Act, in the nature of interrogation , threats, promises and
the creation of an impression of surveillance . In footnotes
3 and 4, supra , I have noted the granting of a motion, by
Respondent , to dismiss portions of the allegations of
paragraph 6(a) and the allegations of paragraph 6(b). The
remaining allegations are considered seriatim:
Interrogation by Van Dyke
It is alleged that Van Dyke engaged in unlawful
interrogation , in May. General Counsel, in his brief, relies
on the conversation between Reynolds and Van Dyke on
Sunday, May 12, and a purported conversation , in late
May, between Van Dyke and Clark.
Reynolds credibly related that he had a conversation
with Van Dyke on Sunday, May 12, during which Van
Dyke advised Reynolds of a meeting to be held the
following morning . At that time, Reynolds volunteered the
information that, "Frank Clark spoke to me about the
Union." Van Dyke respondend, according to Reynolds,
"Well, I can't be concerned over that now. I am just glad
we got in touch with you for the meeting." This
terminated the conversation.'
On cross-examination , Clark was asked to state, by
time and date, when any of Respondent ' s supervisors
discussed his union activity with him. Clark responded
Michigan , Albany, Syracuse, and Buffalo, New York , I find it unnecessary
to further consider precise areas.
'To the extent the testimony of Bernas , Williams , and Clark is at
variance with my findings , relative to the events of May 13 , 1 do not credit
their testimony.
Specifically, Bernas asserted that Moore advised the employees , relative
to Moores experience with the Union, that many times people are
interrogated, taken out of bed at night, their front porch bombed, and
things of that type . Several employee witnesses , appeared as Respondent's
witnesses, and denied these specific recitations of Bernas. I credit these
denials.
Bernas acknowledged that , when Lippert requested an opportunity to
discuss the Union , Moore advised that management would leave, and
management did leave the meeting.
'While General Counsel sought to question the circumstances under
which Reynolds had modified a pretrial statement , which Reynolds,
admittedly , declined to swear to , I am unable to find any substantial
variance between Reynolds' testimony and his pretrial statement, as
modified by him . Reynolds' pretrial statement does assert that what he
advised Van Dyke of on Sunday evening was that the Union was having a
meeting, however Reynolds also asserted , in the pretrial statement that
Van Dyke's response was that he could not be concerned about it.
Reynolds admitted that he had been discharged by Respondent on
August 13 Reynolds obviously was an impartial witness and impressed me
with his efforts to truthfully relate his memory. His demeanor was
impressive
that Van Dyke, "sometime after the May 13 meeting,"
outside the Aurora district office, "asked if I felt that
there was any reason for us organizing , and he said that
he felt that the way things were going , the benefits we got
from out east , that there was no reason for the men in the
Chicago area to become affiliated with the union." After
acknowledging that Van Dyke made no threat, Clark
asserted his response was, "I undoubtedly agreed with him
at that time."'
Van Dyke denied having any discussion with any
employee , in May, relative to union organizational efforts,
and specifically denied any such discussion with Clark.
Van Dyke did not recall Reynolds mentioning the Union
during the May 12 conversation.
On this conflict, on the basis of demeanor, and the
improbabilities of the assertion of Clark, relative to
timing , I credit the denial of Van Dyke.
In the absence of any evidence of interrogation by Van
Dyke I will recommend dismissal of the allegations of
paragraph 6(a) of the complaint , to the extent it relates to
misconduct by Van Dyke in May.
I find unnecessary any consideration of General
Counsel's assertion, in his brief, that Van Dyke's
statement constituted an implied promise of benefits. The
sole allegation of the complaint involving Van Dyke, other
than Clark' s discharge, is that of interrogation."
Interrogation by Bofinger
It is alleged that Bofinger engaged in unlawful
interrogation in May.
In his brief, General Counsel asserts that, in late April
or early May, Bofinger engaged in conversations with
employees, under his supervision , regarding union
activities, and "participated" in their discussions of a
letter relative to the Company Employee-Management
Council."
The only reference to such an incident, in the testimony
of Bernas, relates to a meeting in the South Chicago
District office , on May 14 . According to Bernas , Bofinger
asserted that "He didn 't think we had anything to gain
thinking about union - and the only thing we could do is
save ourselves $9.50 a month or $9 and whatever it was,
union dues." According to Bernas this statement was
made in the presence of approximately seven territory
managers . Later, Bernas acknowledged that no one in the
Company interrogated him relative to his union activities.
Williams asserted that on the Tuesday after receipt of
the April 25 letter, inferentially April 30, the proposal of
a Company Employee-Management Council was discussed
at the district meeting , with Bofinger present . Asked what
comment Bofinger made, Williams responded, "His only
'However, it was not until August 20 that Respondent , by letter , advised
all territory managers that it had entered into a collective -bargaining
agreement, with a union representing territory managers in Districts 35
and 36 in New Jersey , effective August 1 . The letter further advised that
indicated improvements in working conditions , with stated exceptions,
would apply company wide as basic policy.
It is thus patent Van Dyke 's representation , to Clark, could not have
occurred "around the end of May" as asserted by General Counsel in his
brief.
"At the outset of the hearing , General Counsel was afforded an
opportunity to, and did , amend the complaint A recess was later granted
to afford Respondent an opportunity to meet these amendments. No
further amendments were requested . General Counsel would now assert
violations which are not alleged and were not, so far as I am concerned,
litigated
"The page reference on the first item is inaccurate The subject covered
therein was a conversation between two employees, Bernas and Clark
E. F. MACDONALD STAMP CO. 849
comments, he didn ' t know anything about it at all."
Bofinger credibly denied discussing the Union with any
employee in May . He acknowledged that, in June,
Williams asked Bofinger ' s opinion as to what Bofinger
would do about the Union . Bofinger credibly related that
he advised Williams that Williams would have to make a
decision for himself, "That if it were up to me, I know
what I would do ." To the extent there is a conflict, I
credit Bofinger.
General Counsel urges that Bofinger violated the Act
by "participating in employee discussions of the
Management Council proposal ." I disagree . The sole
specification of paragraph 6(a), relating to Bofinger, is
interrogation.
Absent any evidence of interrogation , by Bofinger, in
May, I will recommend dismissal of the allegations of
paragraph 6(a) of the complaint relative to Bofinger."
Threats by Sanders, May 29
It is alleged that Sanders threatened employees in
Syracuse , New York , that if the midwest region of
Respondent became unionized , Respondent might shut
down its' operation there or take other drastic measures.
It is undisputed that, following the May 13 meeting, as
the result of an intensive effort to develop the P & C
account, Respondent , temporarily , transferred territory
managers to Syracuse , at least during the period
commencing about May 20 and ending about June 1.
Williams, of the South Chicago office was among those so
selected."
Williams asserted that, about May 28 or 29, an
unspecified number of the territory managers, in Syracuse,
went to dinner with Vice President Sanders, about 10:30
p.m. Thereafter they returned to Sanders ' room. Among
those present were territory managers from New Jersey,
New York and Ohio . Williams asserted that Sanders
indicated a preference for a question and answer session.
Williams asserted that he asked Sanders what Sanders
thought "about this council thing which was kind of
confusing because that was the original letter sent to us
indicating that we should form a council to run the
Union ." According to Williams , Sanders responded that if
the Chicago division went union , that Sanders did not
know what the Company would do . Williams, variously,
asserted that Sanders respondend "The old man-meaning
the president-he didn ' t know what he would do, they
might even close the Chicago division ." The following
exchange then occurred:
TRIAL EXAMINER : You asked him what?
WILLIAMS: What had been going on in the Union in
the east . He mentioned New Jersey about to sign a
contract and that there was some discussion of a
council in New York area and that if Chicago went
union at this time, he didn ' t know what the Company
would do.
"In numerous places in his brief , General Counsel asserts violations of
the Act not alleged in the complaint . In my view , Respondent is entitled to
notice of alleged violations , and to be provided an opportunity to defend
after such notice . I do not consider matters "fully litigated" which are not
within the allegations of the complaint.
"While Williams identified Seyfarth and Russell , from Chicago, as
among those transferred at the some time , and Watson and Fitzgerald, as
among those transferred later, only Seyfarth and Watson were called as
witnesses . Both appeared on behalf of Respondent and neither was
questioned about the events in Syracuse . According to Williams , Russell
attended the May 28 or 29 meeting , Seyfarth did not.
TRIAL EXAMINER : He didn't know what the Company
would do?
WILLIAMS: No.
Q. (By General Counsel) Then was he asked the
question?
A. There were several men talking at the same time.
It was hard to filter who asked the question, but
apparently somebody asked the question.
RESPONDENT'S COUNSEL: I will object to what
apparently somebody did.
TRIAL EXAMINER: Just give us your best memory.
Who asked the question , what was asked , and what the
answer was.
WILLIAMS: I don ' t remember who interjected, but he
mentioned that if Chicago went union at this time, he
didn 't know what the Company would do , and then he
mentioned they might sell the unit or close the unit, or
something on that order.
TRIALExAMINLR: Is that the way he expressed it: that
they might?
WILLIAMS: Yes.
TRIALEXAMI\FR: And he didn' t know what they
would do?
WILLIAMS: Yes.
Thereafter , on cross-examination , Williams asserted
that he had preferred the council setup , inferentially
referring to the April 25 letter from "E. F. MacDonald
Stamp Company New York Employee-Management
Council ," set forth supra under Background.
Williams asserted , "We didn't know too much about it
because it was something that had started in New York
and we wanted more information about it, and at a
previous meeting with Sanders [apparently referring to the
Syracuse meeting]. I discussed it with him and he said
that would be up to us and we'd have to form our own,
but he would go along with the idea , and that's where the
council conversation comes up.""
Sanders did not appear as a witness , and no reason was
advanced , by Respondent , for his failure to appear.
Similarly, Russell , an employee, whom Williams asserted
was present , at the Syracuse meeting , did not appear as a
witness . General Counsel advanced no reason for his
failure to obtain corroboration , if it can be assumed it was
available.
Williams' demeanor , on the whole, was unimpressive.
His testimony carefully considered in the light of both
supporting and conflicting statements of others , appears to
be both self-contradictory and replete with exaggerations.'I
I find it unnecessary to determine if the remarks
purportedly made by Sanders constituted a threat. Rather,
I find there is no credible evidence , on the uncorroborated
statements of Williams , that such statements were made. I
will, for the reasons stated, recommend dismissal of the
allegations of paragraph 6(c) of the complaint.
"Williams then asserted knowledge that Respondent entered into a union
contract in the New York -New Jersey area , and that the Company advised
the midwest employees that they would obtain whatever conditions
prevailed in the New York-New Jersey area . It is apparent this intelligence
resulted from Respondent's letter , of August 20, to the employees, set
forth supra.
"As an illustration , Williams, in effect , asserts Sanders was threatening
that Respondent would close, or dispose of, the midwest region , and at the
same time was inferentially bargaining in good faith with the Union in
New Jersey, and promising to extend the benefits of that agreement to
employees not covered by it At the same time , according to Williams,
Sanders was advancing the New York Employee-Management Council
plan. These are patently inconsistent positions.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alleged Promises of Benefits by, and Interrogation of
Employees by, Sanders, i n June
It is alleged that Sanders, in June, at the Marriott
Motor Hotel, Chicago, promised employees guaranteed
territory, job security, elimination of indiscriminatee
termination, and other benefits for the purpose of
discouraging union membership . It is also alleged that, at
the same time and place, Sanders interrogated employees
regarding their selection of a collective-bargaining
representative. Since these allegations relate to a series of
conferences held by Sanders, individually with various
territory managers , apparently in early June, they are
considered together.
According to Williams, he met with Sanders for
approximately one-half hour, between 3 and 4 p.m., in
late June or early July. They first discussed Syracuse, then
Williams' record with the Company and sales increases.
After 15 or 20 minutes, according to Williams, Sanders
inquired, "Do you think this union thing is behind us."
Williams asserted he responded in the negative. Sanders
inquired as to the reason, and Williams asserted that he
explained that there was a lot of "unhappiness in the men
because of job security and other things and that's about
the gist of the conversation." Asked what Sanders stated
relative to job security, Williams responded, "He touched
on it. We had nothing to worry about, et cetera, et
cetera." Williams then asserted that he could not be more
specific as to what was stated relative to job security. On
cross-examination , Williams acknowledged that Sanders
did not promise him any benefits at this meeting.
Williams acknowledged that Sanders did not inquire as to
Williams' intentions relative to activity in the Union.
Bernas asserted that he had an hour and a half session
with Sanders, commencing at 7:30 in the morning, in
early July. According to Bernas, Sanders and he discussed
what Bernas needed to help increase his earnings. Sanders
also advised Bernas of the job security the employees had
"and things that we are getting to day that we didn't have
several months ago." Bernas said that Sanders asked him
if there was any talk of union activities in the Company,
and Bernas asserted that he responded in the negative.
Asked if anything else was said by Sanders, Bernas
responded, "That's about it.""
Clark, alleged discriminatee herein, similarly had a
meeting with Sanders, at the Marriott Motel, in early
July. Clark related his meeting lasted 2 1/2 to 3 hours.
Clark asserted that Sanders asked Clark if he had any
"I rind incomprehensible and of no consequence the assertion of Bernas
that they were previously receiving an allowance of 7 cents a mile for
travel expense "and we have a meeting shortly after sometime in March
on into February and we talked about trying to get another penny mileage
and thought it was impossible to get and then , as we went along, after the
New York boys got organized , why, it wasn't too long , we didn't get a
penny but we got 10 cents" Asked if this was mentioned by Sanders, at
the July meeting , Bernas responded "it was touched on "
The term incomprehensible is used in the sense that Bernas' recitation
does not square with undisputed facts, relative to the mileage allowance
Respondent's letter , of August 20, provides, inter aha . " 15 Mileage
allowance increased to 10 cents a mile retroactive to April 8 , 1968, the
date of the change throughout the rest of the Sales Department " Since the
letter is premised upon : "During negotiations it was our policy that the
men represented by the Union would not be discriminated against nor
would they be given more favorable terms than those we would make
available to all our other Territory Managers", it follows, and I find, the
mileage increase to 10 cents was effective on April 8 , for the midwest
region employees
The fact that it was New Jersey territory managers who organized, not
New York, is but one indication of the confusion in Bernas ' recitation
grievances that he wanted to discuss, then described the
inquiry as related to "problems." Clark asserted that he
responded that they had dispensed with and then renewed
"the daily call sheet," identified infra, in more detail as
the "MP-2" form. Clark asserted that he related sales
being made in his territory on which he was not receiving
commissions." According to Clark, Sanders inquired if
Clark thought the salesmen would be satisfied with 50
cents a pad. Clark related he advised they would be. 1e
Clark then asserted, when asked what the 50 cents a pad
referred to, "Well I imagine what - this is my believe on
the conversation that he would pro-rate the number of
pads purchased by Clark Oil and to the number of
accounts the salesman had in his territory, and pay them
accordingly. This is what I gathered from our
conversation." Clark acknowledged he did not service
these accounts, and they obtained stamps directly from
Respondent. Since Clark continued in Respondent's
employment for at least 7 or 8 weeks after this alleged
promise, it would appear that Clark could have described
more fully any actual improvement granted, if it was
granted.
Clark asserted that Sanders then brought up a program
the Company had in New York, described as a
Management-Salesmen Council. According to Clark,
Sanders asked if Clark would bring this program up at
the next regional meeting . Clark asserted that Sanders
indicated that Clark could deliver this to the regional
meeting well enough for the men to accept it. Asked what
else he discussed with Sanders, Clark responded "Merely
in the conversation he asked me if there was any longer
union activity in Chicago." Clark asserted he advised
Sanders there was not. According to Clark, Sanders then
requested Clark to advise Sanders if he heard of any more
union activity. I do not credit this recitation of Clark, for
reasons set forth infra, since I do not find Clark a credible
witness. In so finding, I am not unmindful of the fact that
Clark is the alleged discriminatee. There is not a scintilla
of evidence in this record, other than this assertion of
Clark, that Respondent attempted to engage in
surveillance.
General Counsel urges that Sanders' suggestion of "50
cents a pad" was an inducement to turn Clark against the
Union. General Counsel also urges that Respondent's
letter of August 20 constitutes "a violative grant of
additional benefits calculated to chill further unionism in
the Company.""
I find no credible evidence supporting the allegations of
paragraph 6(d), of the complaint, that Williams, Bernas,
or Clark, were promised guaranteed territory, job security,
elimination of indiscriminate termination, or other
benefits for the purpose of discouraging union
membership. Accordingly, I will recommend dismissal of
those allegations.
There can be no doubt that if Sanders inquired as to
the existence of union activity, in July, as related by
Bernas, Williams and Clark, such an inquiry, under the
circumstances would be violative of Section 8(a)(1).
Sanders', unexplained, failure to appear and refute,
General Counsel asserts, permits an inference that his
testimony would have been unfavorable to Respondent.
"Clark explained that what were termed "house accounts" provided no
commissions to salesmen
"Clark asserted , as an illustration , that he had nine gas stations in his
territory , operated by Clark Oil Co , each of which used 20 to 30 pads,
inferentially in a 4-week period This increase alone would exceed $100
"The short answer to afterthoughts of General Counsel about violations
not alleged in the complaint is set forth in fn. 10, supra
E. F. MACDONALD STAMP CO. 851
While Board decisions have so held , I find such an
inference unwarranted where the individual occupies a
position of the importance of Sanders, vice president of
sales.
Finding much of the recitation of the three named
employees incredible , for reasons explicated herein,
recognizing that they were the sole activists for the Union
in the Chicago region , being mindful of the absence of any
evidence herein of union activity between the May 14
union meeting , at which only four employees appeared,
and late July at the earliest, according to Clark, I find I
am constrained to reject these assertions.
Accordingly, for the reasons stated, I will recommend
dismissal of the allegations of paragraph 6(e) of the
complaint.
Bofinger , Impression of Surveillance, June 10
It is alleged that, on or about June 10, Bofinger created
the impression of surveillance of the union activities of
Respondent ' s employees.
Bernas asserted that, 2 or 3 weeks after the May 13
meeting , Bolinger , at a Tuesday meeting announced that
the names of Bernas , Williams and Clark had been
forwarded to Dayton "as the union organizers of this
Company." Bernas asserted this announcement was made
"in front of everybody," inferentially the seven or nine
territory managers in the south Chicago district.
Williams, in an effort to corroborate Bernas , asserted
that , at the meeting on May 14 , Bolinger mentioned that
the names of Bernas, Williams and Clark had been sent to
Dayton as being union instigators . He then acknowledged
that it could have been a different date. Williams then
asserted that there was a meeting each Tuesday and he
was uncertain on which Tuesday this occurred. Later,
explaining that he had gone to Syracuse [the record
indicates he was in Syracuse from approximately May 20
to June 1] , Williams was uncertain if this statement was
made the week before or the week after his trip to
Syracuse.
Bofinger , who appeared as a witness for Respondent,
was not queried specifically relative to this testimony of
Bernas and Williams . However, Bofinger did assert that
the only time he said anything with reference to unions
was when Williams asked him his personal opinion
regarding what he would do about the Union, as set forth
supra. Bofinger also asserted he first learned of Clark's
union activity, "by the grapevine," in July or August.
I do not find the recitations of Bernas and Williams
credible, in the light of the entire record, and the
reasonable inferences to be drawn from the recitation of
Bofinger, whom I find credible. Accordingly, I will
recommend dismissal of the allegations of paragraph 6(f)
of the complaint , as amended.
Threat of Loss of Employment, by Bofinger, on or
about September 15
It is alleged that on or about September 15, Bofinger
threatened employees with loss of employment benefits if
they joined or supported the Union.
Bernas asserted that he learned of Clark' s ternination
on the morning of the termination. As set forth infra,
Clark was terminated on Friday, August 30, between 10
a.m. and 11 a.m. Bernas asserted that Clark called him,
to advise of this event , the same morning . S0 Bernas learned
of Clark 's termination from Bofinger later , the same day,
when Bernas , following custom , called the district office to
give his weekly report. According to Bernas, at the regular
district meeting on Tuesday, September 3, Bofinger
advised the territory managers , in the south Chicago
district, that Clark was discharged because he wasn't
performing his duty, and "disinterested in company
activities, and stuff like that." Bernas could not recall
how the subject of this discharge came up. Bernas then
asserted that the following Tuesday, September 10,
Bofinger announced, at that meeting, that Clark was
terminated "because of union activities ," explaining that
Clark had been trying to get some people to a meeting
[inferentially a union meeting] and word got out. Bernas
was uncertain if Bofinger said anything else relative to
Clark. Shown his pretrial statement, which Bernas
asserted was made in the afternoon of September 10, after
the district sales meeting that morning , Bernas
acknowledged that his assertion relative to Bofinger's
statement that Clark was discharged for union activity
was not contained in the pretrial statement."
Williams, in an effort to corroborate the assertions of
Bernas, asserted that he was first advised of the
termination of Clark, by telephone, by Bofinger, who
asserted the reason was "poor production." Williams
related this was during a Friday report of his sales, to
Bofinger, but was uncertain if it was on August 30, or in
the early part of September. This was the first knowledge
he had of Clark's termination. Williams then asserted,
"At the next meeting - the next Tuesday meeting_- the
subject came up as to what happened to Clark, and Mr.
Bofinger mentioned that he had been discussing union
with the men on the west side and someone turned him
in." Williams then asserted that this next meeting had
occurred on September 10. Asked if there had been any
prior explanation given to him relative to Clark's
termination, Williams respondend that he had received it
on the "phone," and that the explanation was that Clark
had been fired for lack of production. Williams then
acknowledged that he had attended a district sales meeting
on the Tuesday prior to September 10, and it was either
on September 3 or September 10, Williams was unable to
be certain as to which, that the reason for the discharge
was stated by Bofinger to have been that Clark had been
talking "to two new men on the west side - and that they
had turned him in."22
Bofinger denied having stated that Clark was
discharged for union activities, at any district meeting. On
this conflict, I credit Bofinger.Z"
Accordingly, I will recommend dismissal of the
allegations of paragraph 6(g) of the complaint, as
amended.
"How Clark reached Bernas, by telephone, during work time, is not
described.
"I rind unimpressive Bernas' assertion that by reason of the occurrence
of Labor Day, Bernas was uncertain if the first meeting after Clark's
discharge occurred on September 3, and if, in fact, Bofinger's
representation relative to the discharge being for union activities occurred
on September 10. Prior to this asserted confusion , Bernas asserted that he
had advised the Board agent of Bofinger 's statement prior to making the
pretrial statement . Bernas made only one pretrial statement.
"For reaons explicated infra, relative to a conversation between Van
Dyke and Peterson , after the discharge of Clark, I find Williams'
recitation of fact inaccurate
"I rind unnecessary an evaluation of the assertions of Jack Watson and
John Nevil, territory managers in the south Chicago district, that they did
not hear Bofinger make such a statement. Both acknowledged being late
arriving , or leaving early, at some district meetings
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bofinger , Impression of Surveillance , December 3
It is alleged that, on or about December 3, Bofinger
created the impression of surveillance of the union
activities of Respondent ' s employees.
Williams asserted that on December 10, at a district
sales meeting , Bofinger announced that Bernas and
Williams had been subpoenaed , by NLRB, to appear in
court . Williams acknowledged that he had previously so
advised Bofinger'2'
Bernas, who testified on December 11, set the time of
Bofinger ' s announcement as December 3. Bernas
acknowledged it was merely an announcement.
Bofinger does not deny having made the announcement.
General Counsel , in my view , places overemphasis on
the fact that Bofinger attributed his knowledge of the
subpoenas to "grapevine." Actually, he was advised by
Williams . Similarly, General Counsel would attribute a
jocular story which followed as a "mockery" of Board
processes . The two items , the announcement and the
story, followed in that order , but were otherwise
unrelated . Bofinger made no secret of the fact that he tries
to instill a little humor in his meetings.
The Board properly considers, with a jaundiced eye,
efforts to belittle or impair its processes as violative of
employee rights secured by Section 7. Numerous Board
cases, with court approval , stand as precedent . This Trial
Examiner has had occasion to vehemently concur in
appropriate circumstances . The facts herein fall far short
of the elements essential to support such an inference.
Accordingly, I will recommend dismissal of the
allegations of paragraph 6(h) of the complaint, as
amended.
Concluding Findings
Finding no credible evidence of probative value to
support the allegations of conduct constituting
independent violations of Section 8(a)(1), I will
recommend dismissal of paragraph 6 of the complaint, as
amended , in its entirety.
The Discharge of Clark, August 30
It is undisputed that Frank Clark was employed by
Respondent, commencing July 1962, and was summarily
terminated , on August 30, 1968 . Clark was a territory
manager in the west Chicago office , and served under Van
Dyke, for approximately the last 2 years of his
employment.
I have found , supra , under Background , that, in March
or April, Bernas solicited the assistance of Clark in an
organizational effort and that Clark undertook to organize
the employees in the west Chicago office . Subsequently,
on May 14, a meeting was held at the Union hall,
attended by four of Respondent' s employees, of a total of
32 in the midwest region . It is reasonable to infer that
Bernas, Williams and Clark were in attendance.
According to Clark, there appears to have been no
additional union activity until August . Clark first asserted
that approximately 2 weeks before his discharge, then
asserted it was "probably" 3 or 4 weeks before his
discharge , that Bernas called him and they had lunch
together and discussed the benefits they thought they
could derive from the organization of a union . Clark then
"I find of no consequence the recitation, by several witnesses, that the
announcement was followed by a humorous, unrelated, story
asserted , Bernas again contacted him by telephone , that it
was probably on the Wednesday or Thursday of the week
preceding his discharge that he met with Bernas. This
would be August 21 or 22. Clark asserted that he had a
conversation in front of the district office with Tarsitano
and Lippert, territory managers , on August 20, having
ascertained previously that they were not antagonistic.
The same day Clark had lunch with Seyfarth, and
ascertained that he was very much opposed. The following
Tuesday, August 27, Clark met in a coffee shop with two
new employees , Calvert and Peterson . According to Clark,
Peterson and Calvert asserted they were new with the
Company, did not know much about the Union, but
would be willing to attend a meeting . Clark acknowledged
he did not attempt to obtain authorization cards from any
of those with whom he spoke.
I turn next to the evidence of Respondent ' s knowledge
of Clark' s union activities . Reynolds credibly related that
after the district meeting , in Aurora , on Tuesday, May 7,
he had lunch with Clark , during which Clark explained
the advantages in terms of job security resulting from
union representation . On Sunday , May 12 , during his
conversation with Van Dyke , relative to the meeting of
May 13, Reynolds advised Van Dyke of the nature of his
conversation with Clark. 25 It is thus patent that
Respondent knew of Clark' s union activities , on May 12.
Clark asserted that Van Dyke did not appear at the
customary Tuesday sales meeting, on August 27, asserting
that Van Dyke was at the courthouse trying to keep a
trailer park from moving into Van Dyke's community.
Clark also asserted that Van Dyke was not present, and
there was no meeting, on August 20, inferentially because
Van Dyke was on vacation . Clark also asserted there was
a period of approximately 7 weeks, immediately preceding
August 30, during which Clark had not talked to Van
Dyke . Clark explained that he was on vacation during a
portion of this period . There is thus an absence of
evidence to support any finding that Respondent had
knowledge of Clark's renewed union activity , in August,
prior to Clark' s discharge . In so finding , I am not
unmindful of the recitation of Peterson , of the advice
Peterson gave Van Dyke , relative to Clark ' s union
activity, on August 30, after the discharge , as set forth
infra.
I turn next to Van Dyke's explanation of the reason for
Clark ' s discharge . Van Dyke , testifying from memory,
asserted that in 1965 Clark had between 52 and 54 active
associate accounts. At the end of the year accounts lost,
without replacement , reduced this total to 44. In 1966
there was a net loss of 9 accounts , bringing the total down
to 35. Van Dyke asserted that the downward trend
continued in 1967 and by August 30, 1968, at the time of
Clark' s termination, there were only 26 active associate
accounts.2' Van Dyke asserted that in the first six periods
(24 weeks) of 1968 there were only two new accounts and
in all of 1968 there were four accounts sold or rewritten.
Van Dyke asserted that new account production is
stressed at each district and regional meeting . Van Dyke
asserted that he had numerous conversations with Clark.27
"While Van Dyke did not recall any reference to the Union, by
Reynolds, in this conversation , I credit Reynolds.
"I find of no importance the slight error, reflected in Van Dyke 's report
to Moore, of August 30, that 30 associate accounts remained active on
that date.
"While I find it unnecessary to treat with it in detail , Van Dyke first
asserted that Clark resisted the filing of daily MP-2 reports of customer
calls made, Van Dyke later acknowledged that in the last period of
employment Clark was complying with this requirement
E. F. MACDONALD STAMP CO.
Van Dyke outlined numerous conversations he had with
Clark, the obtaining of credit, for Clark, for sales in
Clark's territory, which gave Clark additional
commissions , even though Clark had nothing to do with
the actual sales of the accounts . I find it unnecessary to
detail Van Dyke' s recitation relative to the loss of
so-called associate accounts or plateglass accounts, and
Clark' s inability to obtain replacements.
Van Dyke credibly related that Clark's failure to react
to various types of stimulation caused Van Dyke to
undertake a close observation of Clark' s activities, on
August 28 and 29. Van Dyke explained that, on an honor
system , the normal work hours for territory managers are
8:30 a.m. to 5 p.m. On August 28, Van Dyke stationed
himself, in his automobile , across the street from Clark's
residence and observed that it was not until nearly 12
o'clock noon that Clark left his home . On August 29, Van
Dyke again parked near Clark 's home and noted that it
was 10 : 15 a.m. before Clark appeared and left his home.i8
Van Dyke related that on August 30, at 8:30 a.m., he
advised Clark of his findings that Clark was not
working.29 Clark, at Van Dyke's request, proceeded to
the Aurora office, having been advised that Van Eyke
intended to terminate him. According to Clark, at the
time of termination, Van Dyke ascribed the reason as
being "for lack of enthusiasm." Van Dyke, during the
hearing, corroborated this assertion.30
General Counsel, in his brief, urges that Van Dyke's
knowledge of Clark' s renewed union activity preceded,
rather than followed Clark ' s termination . I find no merit
in this contention , for the following reasons.
Harry Peterson , a territory manager in the west
Chicago district, was initially employed on July 15, 1968.
He met Clark , within 2 or 3 weeks thereafter. He had
had a conversation with Clark, inferentially on August
27, relative to job security and union activities. This
conversation extended over a period of 45 minutes, and,
according to Peterson , was the only such conversation he
had with Clark. Peterson called Van Dyke, on the
afternoon of Friday , August 30 . Peterson asserted, "I
mentioned to Mr . Van Dyke - started to mention to Mr.
Van Dyke I had a discussion with Clark. Mr. Van Dyke
said , 'Before you go any farther , Mr. Clark's been
terminated ."' Van Dyke did not indicate to Peterson any
prior knowledge . Peterson ' s explanation of the reason for
his report was, "I figured instead of maybe out doing my
job I was drinking up the coffee ." Peterson was "positive"
that Van Dyke ' s response was immediate . Peterson was a
witness for General Counsel."
"I find it unnecessary to detail the occurrences after Clark left his home,
while Van Dyke followed him , on either day
"While Clark denied the accuracy of these findings as to one day, he
readily acknowledged that he had stayed home one morning to do some
work around the house , which his wife had requested . Clark ' s explanation
was that he had worked in the morning on the preceding Saturday, and,
inferentially , since salesmen arc not required to work on Saturday,
apparently believed that he was justified in taking compensatory time
"I find it unnecessary to treat with Clark ' s request for separation pay,
or Van Dyke' s ascribing additional reasons for the termination , in a report
he made to Moore , dated the same day as the termination.
Since we are not concerned with the adequacy of the justification for
discharge , if it was not discriminatory , I find no purpose in setting forth,
or evaluating, the recitations of Clark relative to his having won a prize, a
trip to Acapulco, or commendations for his work , in the past, by
management 's hierarchy.
"General Counsel would infer that Van Dyke had prior knowledge, from
Van Dyke's reference , in his August 30 report to Moore, that Clark's
"contact" with other territory managers , at coffee or lunch , extended to
Peterson and Calvert , the newest men.
Concluding Findings
853
The single question to be resolved is whether the
credible evidence in the record would support a finding,
urged by General Counsel, that the discharge of Clark
was pretextuous, and that it was, in fact, discriminatorily
motivated.
An essential ingredient to a finding of discriminatory
motivation is not only the participation in union activities
by the discriminatee but knowledge thereof by
Respondent. The credible testimony of Peterson, if
nothing else, establishes that Clark did discuss his renewed
efforts at organization , with Peterson, on August 27.
Thus, it is patent that Clark was engaged in protected
activities. Where the record falls short, and the void
exisits, is the absence of even a scintilla of evidence of
knowledge on the part of Van Dyke, or anyone else in the
management hierarchy, relative to this activity.32
Van Dyke related that he discharged Driscoll, otherwise
unidentified, in February 1967, and Reynolds, on August
13. The reason for Reynolds' discharge was identical, inter
alia , to the reason for Clark' s discharge : i.e., "poor
attitude." I find of no consequence the fact that, in
addition, Van Dyke listed lack of new account production,
and pad production, and other reasons, for the discharge
of both Reynolds and Clark.
There are numerous Board and court decisions which
hold that engagement in protected activities neither
increases nor decreases the obligation of an employee, so
engaged , to perform his assigned duties . It has been
frequently stated that an employee may be discharged for
a good reason, a bad reason, or no reason at all, provided,
only, that the reason may not be of a discriminatory
nature.
I have found it unnecessary to detail the recitation of
Moore, relative to his numerous conversations with Van
Dyke, in which Van Dyke indicated dissatisfaction with
Clark's efforts. These conversations culminated, shortly
before the discharge of Clark, in Moore's advice to Van
Dyke that Clark' s retention or separation was a matter
for Van Dyke' s decision . The record establishes that Van
Dyke, primarily, and possibly Moore, secondarily, alone
were responsible for the discharge of Clark. There is not a
scintilla of evidence to support an inference that Moore,
at any time, engaged in conduct violative of the Act. The
single instance allegedly involving Van Dyke I have found
without substance. Respondent, apparently in good faith,
Van Dyke credibly denied knowledge that Clark had coffee with Calvert
and Peterson , prior to Clark 's termination, but acknowledged he learned it
thereafter.
It is undisputed that the discharge of Clark was before noon. It is
undisputed that Peterson 's report to Van Dyke was in the afternoon. I find
it reasonable to assume that Van Dyke 's report to Moore was not prepared
prior to Peterson 's telephone call to Van Dyke . Van Dyke was unable to
recall if his report to Moore was actually prepared by him on August 30,
or prepared immediately thereafter and backdated . I credit the implied
assertion of Van Dyke that the preparation of his report to Moore,
particularly that portion treating with Peterson and Calvert, was not
prepared prior to the telephone conversation , of August 30, with Peterson.
"General Counsel 's reliance on the recitation of Bofinger, that Bofinger
had heard of Clark's union activity by the "grapevine ," is misplaced.
Bofinger' s recitation is at most vague as to time , the source of the
information , and the nature of the activity, and could as well relate to the
known activity of Clark in May . It is, in my view , insufficient as a premise
for a finding Respondent had knowledge of Clark's activities in August,
prior to the discharge.
I have rejected , supra, the assertions of Bernas and Williams that
Bofinger, on approximately September 10, ascribed the reason for Clark's
discharge as being Clark's union activities.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiated a contract with the Union , representing New
Jersey employees , culminating in a contract which became
effective August 1. At the same time, the New York
employees were exploring the possibility of a
management-employee council . There is no claim that
Respondent acted in bad faith , or in violation of the Act,
in either of these instances.
Accordingly, for the reasons set forth, on the entire
record as a whole, I find there is insufficient credible
evidence to support a finding that Respondent was
discriminatorily motivated in effectuating the discharge of
Clark. I shall recommend the dismissal of the allegations
of the complaint related thereto.
In arriving at my findings of credibility herein, I have
considered: all of the testimony; the demeanor of the
witnesses ; the interest of each in the outcome of the
litigation , or lack of such interest; candor or lack thereof;
plausibility or implausibility of the assertions of each
witness, particularly when compared to opposing
testimony ; self-contradictions ; assumptions of fact without
supporting knowledge , particularly in relation to the
purpose of the May 13 meeting; and admissions of
adverse facts by Clark.
Upon the foregoing findings of fact and upon the entire
record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 738, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in conduct constituting
unfair labor practices within the meaning of Section
8(a)(1) of the Act, for the reasons set forth in the Section
entitled "Interference, Restraint, and Coercion."
4. Respondent, by discharging Frank Clark, on August
30, 1968, has not engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, I recommend that the complaint be
dismissed in its entirety.