Fiber Products

National Labor Relations Board - Board Decisions

Sep 16, 1994

314 N.L.R.B. 1169 (N.L.R.B. 1994)

1169 314 NLRB No. 185 FIBER PRODUCTS 1 On February 23, 1994, Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Contrary to the Respondent’s contention, we find that the com- plaint amendments all involve conduct occurring within 6 months of the instant charges. Specifically with respect to Zeback, the record shows that his adverse appraisal was prepared on May 26, 1992, and discussed with him on May 28, 1992. These dates fall within 6 months before the filing of Zeback’s charge on November 10, 1992. Furthermore, the record shows that Zeback and DeCarlo were not aware of the existence of the written reprimands in issue until the unfair labor practice hearing. It is well established that Sec. 10(b) does not begin to run on an alleged unfair labor practice until the person adversely affected by it is put on notice, actual or construc- tive, of the act constituting it. E.g., Carpenters Wisconsin River Val- ley Council, 211 NLRB 222, 227 (1974), enfd. 532 F.2d 47 (7th Cir. 1976). Therefore, Sec. 10(b) would not bar the complaint amend- ments relating to the reprimands even if the reprimands were dated more than 6 months before the filing of the unfair labor practice charges. 3 The fact that the timely filed charge allegations and the amended complaint allegations invoke different sections of the Act does not preclude a finding that they are based on essentially similar legal theories. Southwest Distributing Co., 301 NLRB 954, 956 fn. 7 (1991); Nickles Bakery of Indiana, 296 NLRB 927, 928 fn. 5 (1989). FPC Holdings, Inc. d/b/a Fiber Products and David R. Decarlo and Robert Zeback. Cases 5-CA- 23097 and 5-CA-23119 September 16, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN This case1 presents the issues whether the judge cor- rectly found that: Section 10(b) of the Act did not bar amendment of the complaint at the hearing to allege violations of Section 8(a)(1) of the Act; the Respond- ent violated Section 8(a)(1) by several adverse actions taken against the Charging Parties because they en- gaged in protected concerted activities; and the Re- spondent violated Section 8(a)(3) and (1) of the Act by terminating the Charging Parties both for engaging in union activities and for engaging in other protected concerted activities. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions, and to adopt the recommended Order. Al- though we agree with the judge’s rejection of the Re- spondent’s 10(b) defense, we find that this issue war- rants further explanation in this decision. The original unfair labor practice charges, filed on October 26 and November 10, 1992, alleged that the Respondent violated Section 8(a)(3) by terminating David DeCarlo and Robert Zeback on October 5, 1992, because of their union activities. The complaint amendments, which the General Counsel offered in a motion to the judge on August 3, 1993, the first day of the hearing, allege that on various dates in May and June 1992, the Respondent violated Section 8(a)(1) by several pretermination acts of reprisal against the two employees because they engaged in protected con- certed activities. The amendments also allege retalia- tion against protected concerted activities, in addition to union activity, as an unlawful reason for discharging the employees. The Respondent contends that Section 10(b) bars litigation of the amended complaint allegations of 8(a)(1) violations because they are not ‘‘closely re- lated’’ to the charge allegations of 8(a)(3) violations. In addition, the Respondent challenges the judge’s finding that it unlawfully appraised and reprimanded Zeback ‘‘in May 1992’’; it argues that this date is out- side the 6-month limitation period, because Zeback’s charge was not filed until November 10, 1992. Redd-I, Inc., 290 NLRB 1115 (1988), identifies fac- tors relevant to a determination whether certain other- wise untimely allegations can be added to a complaint based on their close relationship to a pending timely filed charge. Under this ‘‘closely related’’ test, the Board will examine whether the otherwise untimely complaint allegations (1) involve the same legal theory as allegations in the timely filed charges, (2) arise from the same factual circumstances, and (3) entail the same or similar defenses by the Respondent. The judge in this case referred only to the final factor in finding that the additional 8(a)(1) allegations were closely re- lated to the original and timely 8(a)(3) discharge alle- gations. In light of the Respondent’s exceptions to his analysis, we will assess each of the factors in the Redd-I test.2 First, we find that the additional 8(a)(1) allegations involve the same theory of unlawful retaliatory motiva- tion for adverse employment actions as the original 8(a)(3) discharge allegations. All allegations relate to the same alleged animus and pattern of reprisals against the Charging Parties for their perceived roles in encouraging concerted activities, ultimately including union organizing activity, among the Respondent’s drivers.3 Second, as indicated above, we find that the 8(a)(1) allegations involve earlier events in the same factual sequence as the 8(a)(3) termination allegations. Finally, we agree with the judge that the Respondent would be expected to, and did, raise similar defenses to all allegations. Accordingly, we find in Redd-I that the amended complaint allegations are not barred by Section 10(b). 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Amended at trial to reflect the correct name of Respondent. 2 Pursuant to prior mutual agreement, Respondent’s revised Exhs. 27 and 28 with stipulated annotations were received by me and in- serted into the record on September 29, 1993, as well as the stipula- ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, FPC Holdings, Inc. d/b/a Fiber Products, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Carol A. Baumerich, Esq., for the General Counsel. Frank S. Astroth, Esq. (Astroth, Serotte & Rockman), of Bal- timore, Maryland, for the Respondent. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. The unfair labor practice charges were each filed against Fiber Products, Inc. on October 26 and November 10, 1992, respectively, by individuals David De Carlo and Robert Zeback, both of whom alleged a discriminatory employment termination from their truckdriver positions on or about October 5, 1992. On January 28, 1993, an order consolidating cases, consolidated complaint and notice of hearing was issued by the Regional Director against Fiber Products, Inc. which alleged the Octo- ber 5 discharges of De Carlo and Zeback to have been moti- vated because of their union or other concerted protected ac- tivities and thus constituted violations of Section 8(a)(1) and (3) of the Act. No other independent violations of Section 8(a)(1) of the Act were alleged. On February 1, 1993, Re- spondent filed a timely answer that denied the commission of unfair labor practices by alleging that the terminations were economically motivated. The trial of this matter was held before me in Baltimore, Maryland, on August 3, 4, 5, 6, and 10, 1993. On the first day of trial, I granted counsel for General Counsel’s oral mo- tion on the record to amend the complaint. The motion was reduced to written form and introduced into evidence as Gen- eral Counsel’s Exhibit 6, and the relevant part alleges the following conduct of FPC Holdings, Inc.1 d/b/a Fiber Prod- ucts (the Respondent): 5. On or about May 26, 1992, and on various dates in or around March, April and May, 1992, Charging Party DeCarlo and Charging Party Zeback engaged in concerted activities with other employees and with each other for the purposes of collective bargaining and other mutual aid and protection by discussing the wage freeze imposed by the employer, the need for new employee uniforms and load bars in the truck among other things. 6. In or around May 1992, Respondent, through the conduct of [Personnel Director] Bonnie Roe, issued a written reprimand to Charging Party Zeback. 7. On or about May 26, 1992, Respondent, through the conduct of [Personnel Director] Bonnie Roe and [Manager] Ike Tyler, extended Charging Party Zeback’s probationary period. 8. On or about June 12, 1992, Respondent, through the conduct of [Personnel Manager] Bonnie Roe, issued a written reprimand to Charging Party DeCarlo. 9. In or around August 1992, Respondent, through the conduct of [Personnel Manager] Bonnie Roe, [Man- ager] Michael Taylor and [Manager] Ike Tyler, selected Charging Party Zeback and Charging Party DeCarlo for lay off. 10. On or about October 5, 1992, Respondent dis- charged its employees charging Party DeCarlo and Charging Party Zeback. 11. Respondent engaged in the conduct described above in paragraphs 6 through 10 because Charging Party DeCarlo and Charging Party Zeback engaged in the conduct described above in paragraph 5, and to dis- courage employees from engaging in these or other concerted activities. The amendment reiterates that De Carlo and Zeback were also discharged on October 5 because of their union activi- ties, i.e., activities on behalf of Teamsters Local Union No. 355. Respondent contends that the amendment allegations as to the earlier alleged conduct are barred from the litigation as untimely under Section 10(b) of the Act. The General Counsel argues that the prior conduct was discovered during the pretrial subpoena process and is necessarily entwined with the litigation of Respondent’s motivation for the Octo- ber 5 discharges and that because of a close factual relation- ship between the original charge and the amended complaint, its litigation is not barred by Section 10(b). The General Counsel cites in support thereof Redd-I, Inc., 290 NLRB 115, 118 (1988); Embassy Suites Resort, 309 NLRB 1313 fn. 4 (1992); Pincus Elevator & Electric Co., 308 NLRB 684 fn. 2 (1992). At trial, I ruled that I would allow introduction of evi- dence of Respondent’s past and persisting animus toward De Carlo and Zeback’s past concerted protected activities re- gardless of whether it was timely alleged as an independent violation of the Act. Evidence of such conduct is patently relevant and admissible at the very least as background evi- dence to explain subsequent motivation. At the trial, the parties were given full opportunity to in- troduce all relevant testimony and to examine and cross-ex- amine witnesses. The parties were also afforded opportunity to introduce into evidence documentary evidence which re- sulted in a mass of exhibits which far exceeded the nearly thousand pages of transcript. The parties also elected to file posttrial briefs, each of which exceeded 60 pages and were received at the Division of Judges on October 15, 1993. At- tached to the General Counsel’s brief was a multiple page motion to correct numerous errors in the transcript. That un- opposed motion is hereby granted. On the basis of the entire record, including the well-draft- ed, and by no means prolix, posttrial briefs, I make the fol- lowing FINDINGS OF FACT2 I. JURISDICTION At all material times Respondent, a Maryland corporation, with an office and place of business in Baltimore, Maryland 1171FIBER PRODUCTS tion that G.C. Exhs. 124, 125, and 126, consisting of pay summaries, commence as of January 1, 1992. (Respondent’s facility), has been engaged in the business of supplying various paper and plastic products to food markets and other stores selling food and beverage in the Maryland, Pennsylvania, Delaware, Virginia, and Washington, D.C. areas. During the 12 months preceding the complaint, Re- spondent, in conducting its business operations, purchased goods and supplies valued in excess of $50,000 directly from points located outside the State of Maryland. It is admitted, and I find, that at all material times Re- spondent has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that Teamsters Local Union No. 355 (the Union) is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Background Since its inception in October 1993, Fiber Products, Inc. had engaged in the wholesale distribution of disposable paper and plastic packaging materials such as plastic or paper cups, Styrofoam containers, aluminum containers, and plastic and paper bags to supermarkets and fast food restaurants. It also distributed janitorial supplies including floor care products, mops, brooms, and brushes. On or about June 15, 1990, Fiber Products, Inc. became a subsidiary of the new holding company, FPC Holdings, Inc., which then also acquired as a subsidiary the similar op- eration of Thomas Buccheri & Sons. In the fall of 1991, a containerized bulk, 7-Up beverage, soda syrup restaurant, and tavern distribution operation was acquired by FPC Holdings, Inc. from the 7-Up Bottling Company and merged with the Buccheri operation. During the summer of 1992, Fiber Prod- ucts, Inc. and Thomas Buccheri & Sons, Inc. ceased to exist as distinct operating and corporate entities and were merged into FPC Holdings, Inc. which changed from a holding com- pany to an operational entity, i.e., the Respondent herein. The former president and principal owner of Fiber Prod- ucts, Inc., Richard Roe, retained that status and is responsible for Respondent’s overall general management. For the past 5 years, his wife, Bonnie Roe, has served as personnel or human resources director with the responsibility for hiring, firing, employee discipline, payroll management, and em- ployment benefits administration. Subordinate to the Roes were Michael (Mike) Taylor, the warehouse operations manager, and Gilbert (Ike) Tyler, the transportation supervisor. These two managers, often referred to as Mike and Ike, are more directly involved in the day- to-day assignment and direction of work to employees. Of those two managers, Tyler is subordinate to Taylor, but he is directly responsible for assignment and direction of all transportation employees, i.e., route delivery work to em- ployees who deliver preloaded delivery vehicles to specific geographical areas in the greater Baltimore and Washington, D.C. area and even to parts of Virginia, Delaware, and Penn- sylvania; backup drivers who do warehouse work with ware- house loaders and unloaders but who substitute for sick, va- cationing, or otherwise absent route drivers and ‘‘jockeys,’’ i.e., warehouse employees who may be called upon to move a delivery vehicle that had been parked in the lot by a return- ing driver to the loading area and back during the nighttime loading process so that the vehicle may be loaded for and prepared for the morning delivery departures. All the fore- going manager’s supervisory and agency status is admitted by Respondent. Respondent does not own its delivery vehicles but rather rents several varieties of units from Ryder Transportation or Associated Truck Rental. As a condition of rental, Respond- ent drivers are obliged to submit themselves for road testing and certification by Ryder. Respondent also sends all new drivers to Ryder upon hire for testing and drug screening at Respondent’s expense. The vehicles rented from Associated were essentially smaller 14- to 16-foot trucks at a weight under 26,000 pounds which could lawfully be driven by any- one possessing a standard passenger vehicle class D license. Respondent’s rented vehicles of this nature included unit 590, a small cargo van, and unit 617, a 14-foot standard shift truck, utilized in the former Buccheri operation. By October 1992, Respondent utilized 10 Ryder diesel vans which were 22 feet or 24 feet longer and weighed over 26,000 pounds. These vehicles constituted Respondent’s fleet of route delivery trucks, each of which was regularly as- signed to a particular driver to serve a particular geographical area. Bonnie Roe’s inexplicable, gratuitous denial of the ex- istence of regular ‘‘routes’’ or ‘‘route driver’’ is contradicted not only by General Counsel witnesses but also the testi- mony of Tyler. Tyler testified that he assigned the same driv- ers to the same delivery routes everyday. He also admitted that it was important that the route driver get to cultivate the good will of the regular customers he serviced and to de- velop a rapport with them. His testimony conflicted with Roe on several important issues. The rental of the same 10 route trucks continued through November and December 1992, with the augmentation for a few days in December of two 24-foot vans. All these route trucks required that the driver possess a class B commercial driver’s license (CDL). Ryder additionally rented to Respondent several other specialty ve- hicles in 1992 and 1993, such as small cargo vans not requir- ing a class B CDL. Finally, Respondent also rented in 1992 an extra truck from Associated which it used for special runs or holidays. That truck, unit 108, was a ‘‘MAC’’ truck in excess of 26,000 pounds’ weight and required a class B-CDL licensed driver and was not used in the regular route delivery work. Throughout 1992 to the week ending November 6, 1992, Respondent’s total employment level ranged from 74 to 75 employees. In 1992, up to the June merger, Fiber Products Inc. operation utilized, at a fairly consistent level, 14 drivers and 13 warehousemen. The Buccheri operation employed three drivers and three warehousemen. After the merger, Re- spondent employed a peak of 16 drivers and 16 warehouse- men in July 1992. In August, it employed 12 drivers and from 15 to 17 warehousemen. From the week ending Sep- tember 5, 1992, to the week ending October 9, 1992, it con- sistently employed 13 drivers and 17 warehousemen. In August and September 1992, 10 of Respondent’s driv- ers were assigned to the fleet of 10 regular route trucks. Ac- cording to Ike Tyler’s testimony and other evidence, they 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consisted of Tim Taylor (Michael Taylor’s brother), Rudy Dashiell, Steve Hennigan, Michael Comegys, Ralph (Butch) Clayton, David De Carlo, Robert Zeback, Larry Eiting, and Dan Sarzynski. Another route driver, Marc Hurley, was on extended injury leave and his vehicle and route was being serviced by Joe Hook who had been hired in March 1992. Hook did not complete the probationary period imposed upon new drivers, and sometimes extended by it, until the end of June 1992. According to Tyler’s testimony as an adverse witness for the General Counsel, for the same August to September pe- riod of 1992, Respondent employed, as backup drivers, Joe Kindle, Larry Bialek, and Otto Weil. Kindle was hired on September 7, 1992, as a warehouseman. Bialek was hired as a warehouseman in November 1990. Later, he drove some Buccheri trucks. He received his class BCDL and Ryder cer- tification on June 16, 1992. Weil’s payroll records indicate a transfer ‘‘from the warehouse’’ on February 14, 1992, pay raises to $8.50 per hour from $7.35 on the week ending Feb- ruary 14, 1992, and $9.25 for the week ending May 15, 1992. The $9.25 rate is apparently the rate a nonprobationary driver achieves, as did Zeback when he passed his probation. Bialek had reached that rate in the week ending October 2, 1992, having previously been raised to $8.50 hourly rate on July 14, 1992, and $8 hourly rate the week ending June 17, 1992. Although Tyler, as an adverse witness, testified that Bialek was a backup driver in September-August 1992, when called later as a Respondent witness, he testified to leading exam- ination that Bialek was a driver prior to the October 5 termi- nations of De Carlo and Zeback. Bonnie Roe testified that Bialek was a driver by the time of the merged operations. General Counsel witness Tim Taylor referred to Bialek as one of several drivers who attended driver meetings. Al- though De Carlo characterized Bialek as a driver, he also tes- tified that he was not a regular driver. With respect to Weil, Zeback in his testimony referred to Weil simply as a driver as of late September 1992. Bonnie Roe testified that Weil was promoted to driver training posi- tion as of February 21, 1992. At one point, however, as an adverse witness, she testified uncertainly that he was pro- moted to a class B CDL driver in October 1992. De Carlo identified Weil as a driver whom he helped train and one of the drivers he notified of a union meeting on late September 1992. Regardless of Weil’s and Bialek’s status as ‘‘drivers’’ or ‘‘back up drivers’’ prior to October 5, 1992, it is clear from Tyler’s more certain and more credible testimony, as an adverse witness, that they were not regularly assigned to the routes served by the aforedescribed route drivers. In August and September 1992, the warehouse manager, Donnie Johnson, was also used as a backup driver. Finally, the driver status of Phillip Thomas in August-September 1992 is not entirely clear. He was hired in January 1991 as a warehouseman. Thereafter, he drove a truck for the Buccheri operation through June 1992 until the merger of op- erations. In the winter of 1992-1993, he worked in the ware- house and drove a nonclass B CDL van and, in June 1993, he became a backup driver. According to Bonnie Roe’s testi- mony, between June 1992 and the following winter, he drove some sort of ‘‘shuttle van.’’ For the fiscal year ending October 31, 1990, FPC Hold- ings, Inc. and its subsidiaries attained a profit of $51,881 from gross sales of almost $14 million. The next fiscal year saw gross sales of nearly $16 million but at a loss of $287,458. For the fiscal year ending October 31, 1992, with gross sales almost as much as 1991, the loss for that year was $136,482. It is undisputed that because of its losses, Re- spondent instituted an employee wage freeze in June or July 1991. The freeze did not affect raises due at the end of an employee’s 90-day probationary period. There were other ex- ceptions. Richard Roe testified that the exceptions were based on individual employee performance. However, Bonnie Roe testified that exceptions were motivated by a desire to meet the demands of the market, i.e., prevailing wages paid by competitors for the same job. As she testified elsewhere, it was difficult to find and hire qualified, drug-free drivers, and driver-warehousemen. In an attempt to cope with the 1991 losses, Respondent decided to consolidate its operations and to eliminate dupli- cated functions formerly performed individually by each of its subsidiaries, e.g., sales, merchandising, warehousing, etc. The Buccheri & Sons, Inc. warehouse was located on Franklintown Road in Baltimore about 4 miles from the Fiber Products, Inc. warehouse, on Strickland Street also in Baltimore. Respondent gave the required 270-day lease ter- mination notice to its landlord for the Franklintown ware- house, the lease for which expired June 11, 1992. That ware- house was vacated by June 11, 1992, after a period of trans- ferring equipment and products by a shuttle operation be- tween warehouses. The 7-Up operation warehouse location was changed to a new warehouse leased at Commerce Drive where Respondent also relocated its sales representatives and also stored some bulk paper products. These moves saved Respondent about $32,000 in yearly rent alone. Additionally in June 1992, the Buccheri sales force had commenced a phase-out and was eliminated by October 1992. The Buccheri office staff was eliminated in June 1992. Except for a few Buccheri drivers who were merged into the Respond- ent operation, most others were laid off. Thus Respondent must have concluded that the abilities and attitudes of its Fiber Products drivers were preferable to the Buccheri driv- ers it released, at least as of June 1992. Documentary evi- dence reveals the following: From a total of 82 persons em- ployed by all Respondent operations in November 1991, that number dropped to 77 by January 31, 1992; rose to 80 in March, held steady at 79 through spring; maintained at 74 or 75 through May and June; rose back to 77 by September; and held at 74 from the week ending October 2 to the week ending October 30, 1992. Thereafter, the total employment level held at 66 or 67 well into mid-January 1993. There- after, it gradually declined to 59 by mid-June 1993. Thus, according to the documentary evidence, there was no dramatic drop in total employment immediately at the June 1992 merger or thereafter until the week ending Octo- ber 9, 1992, after three employees were terminated on Octo- ber 5, i.e., three route drivers, including De Carlo, Zeback, and the inactive, injured Hurley. The next large exodus oc- curred not until the week ending November 13, 1992, when eight employees were terminated. It is Respondent’s position that De Carlo and Zeback were terminated because of the economic motivation to save costs by reducing the number of drivers it employed and by reducing the number of trucks it rented. As stated in a position letter in the investigation of this case and in its posttrial brief, it does not consider De 1173FIBER PRODUCTS Carlo and Zeback to be ‘‘bad employees.’’ However, as will be seen below, they were selected for layoff preference be- cause Respondent had perceived their work performance to have been marred by essentially an ‘‘attitude’’ problem which it insists was not their sympathetic attitude toward union or concerted protected activities. The General Counsel argues that the evidence will show that they were indeed se- lected for layoff because of their past concerted, protected activities and because of a newly acquired intent by them for union representation and their embryonic efforts toward that goal which finally snapped the Respondent’s tautly stressed tolerance of employee concerted activities. The General Counsel adduced a mass of documentary evidence in the hope of demonstrating that there was no actual reduction in vehicle usage on or shortly after the October 5, 1992 termi- nations. Of course, even if there were in fact a valid eco- nomically motivated reduction in work force and number of vehicles rented, a violation would still lie if De Carlo and Zeback had been selected for layoff in deference to other drivers, especially less tenured and experienced drivers, be- cause of the alleged discriminatees’ suspected or actual union and/or other concerted activities engaged in for their own and fellow employees’ mutual employment benefit. B. Earlier Concerted Activities 1. Drivers meetings Monthly drivers’ meetings were held at Respondent’s Fiber Products facility by Tyler at which safety rules and other topics of interest in the ongoing driver operation were discussed. Other managers attended with varying regularity. There is some dispute as to the actual regularity and fre- quency of the meetings and as to the obligation of all drivers to attend. The meetings were held usually in late afternoon after drivers finished their runs early in the afternoon, as did other drivers who, for a variety of reasons, also finished their runs early in the day. What is not in dispute nor contradicted is testimony that in spring and summer 1992, the drivers gathered together among themselves prior to these meetings and informally discussed matters of employment conditions which were of mutual concern and complaint. The prime subject was the wage freeze announced by Bonnie Roe at a 1991 meeting. Other matters included the failure of recently hired drivers to be issued uniforms to conserve their own clothing; the inadequate supply of handtrucks available on delivery vehicles; the lack of protective load bars to fasten otherwise loose loads to prevent injury; an incentive program and the general state of equipment; and the manner in which the night warehouse crew loaded the delivery vehicles. Tim Taylor, Manager Taylor’s brother, proved to be one of the most credible and convincing witnesses in this pro- ceeding. He had absolutely nothing to gain by testifying as a General Counsel witness while still employed by Respond- ent. In fact, he clearly risked Respondent’s enmity by so doing, and possibly his brother’s displeasure. It was clear from the demeanor of Respondent witnesses, particularly the Roes, and most particularly Bonnie Roe, that being examined under oath by counsel for General Counsel, and for Mrs. Roe even by her own counsel, was viewed with loathing and a seething resentment. Mrs. Roe was most demonstrative in this regard by tone of voice, volubility, and expressive facial and other gestures. Tim Taylor, as did the other General Counsel witnesses, testified with emotional detachment, cer- tainty, conviction, and spontaneity. Taylor, however, was the most composed, fluent, and convincing witness. I credit his undisputed testimony which corroborated the leadership and driver spokesperson role of De Carlo with respect to the in- formal drivers meeting, the management-held drivers’ meet- ings and subsequent union activity of the drivers. With respect to the drivers’ meetings conducted by Tyler, even Respondent witnesses did not seriously or clearly con- tradict testimony as to De Carlo’s spokesperson function with respect to the voicing other employees’ complaints, even when he, himself, did not share the complaint, i.e., he had never been without a uniform but nonetheless raised this complaint to Tyler at these meetings on behalf of other newer drivers who, as with other complaints, had discussed it and who asked him to raise it. Manager Mike Taylor, although admitting that he did not attend the summer 1992 meetings with frequency, attempted to disparage De Carlo’s leadership role by rather weakly tes- tifying that other drivers, whose actual identities he could not recall, also voiced some complaints. In cross-examination, Taylor admitted De Carlo voiced complaints about the ab- sence of uniforms, load bars, and the way Respondent treated the drivers. In redirect, he testified with uncertainty that other employees complained, ‘‘once the gate was opened people would jump on the bandwagon.’’ He identified Zeback and Comegys as among those people. Significantly, Manager Taylor testified that he was absent because of his need to at- tend to the transferring of warehouse operations. Implicit in this testimony is that meetings of drivers were held because their services were not needed for the transfer, at least at that time of day. As will be seen below, one of Respondent’s complaints about De Carlo’s work which arose in testimony was his alleged absence from regularly mandatory drivers meeting and his reluctance to assist in, or to be available for warehouse transfer work. As a Respondent witness, Manager ‘‘Ike’’ Tyler was conspicuously silent on the subject of the discussion of employee complaints at these meetings. As she was throughout her testimony, as an adverse wit- ness called by the General Counsel, Bonnie Roe was ex- tremely evasive, defensive, and inconsistent even as to sub- jects that clearly were either not in dispute or were not even that material. One of these was the frequency of her own presence at the Respondent facility during the summer of 1992. At one point, she was even contradicted by Manager Tyler when she first adamantly insisted that she was present ‘‘at least every day’’ for, at the very least, 3 hours for the shortest visit, but she insisted she visited far longer most of the time. Manager Tyler testified that during that period of time she had been present for only 1 or 2 days each week for a total of 2 or 3 hours each visit. When she was called as a Respondent witness a few days later, after the Tyler contradiction she changed her earlier testimony by conceding that her actual presence was a matter of contingency. With respect to attendance at drivers’ meetings, as an ad- verse witness, Bonnie Roe testified that she could not recall whether she had attended all the drivers’ meetings. With re- spect to the production of minutes requested by the General Counsel pursuant to a pretrial subpoena duces tecum, she ad- mitted the prior existence of some but claimed that they had now somehow become displaced or lost by some unknown person. Manager Tyler testified as an adverse witness that it 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 As an adverse witness, she placed it possibly in January. As a Respondent witness, she placed it in February 1992. had been his practice to maintain regular drivers, meeting minutes and to store them in the Respondent’s office facility filing cabinet. He further testified that, upon being served with the General Counsel’s subpoena, Bonnie Roe came and took possession of all those minutes and took them away to an undisclosed place prior to trial. Bonnie Roe testified vaguely that several employees, including De Carlo, had complained of the wage freeze at the drivers’ meetings. Ac- cording to her, however, driver Butch Clayton ‘‘brought it up as an issue.’’ She then added, ‘‘a lot of people complained about it.’’ Ultimately, during the trial, Respondent produced minutes of only two management-conducted drivers’ meetings. Re- spondent counsel disclaimed having had possession or knowledge of their whereabouts. In cross-examination, after testifying in direct examination as a Respondent witness, Roe ‘‘absolutely’’ denied having received any ‘‘file concerning minutes of drivers’ meeting’’ from Tyler. She testified that with respect to those meetings held between January 1, 1991, through July 19, 1993, that she had taken notes of those meetings, and she reaffirmed that in cross-examination. Yet, she insisted that she had supplied the General Counsel ‘‘cop- ies of all of the notes of those management meetings,’’ i.e., of ‘‘every meeting I attended.’’ She explained, ‘‘I take the notes.’’ When asked how many meetings she attended, she responded to counsel for the General Counsel: ‘‘Whatever you have there, Carol, is what I’ve done. What I attended.’’ It is clear that more than two meetings had been memori- alized by Respondent in minutes, that only 2 minutes were produced pursuant to subpoena, that Respondent gave no ra- tional explanation for the failure to produce that evidence, that Respondent’s managers gave contradictory testimony with respect to the issue, and that those notes would verify De Carlo’s and other employees’ protected activities, the na- ture of and actual frequency of those meetings, and also re- vealed whether or not De Carlo or other employees had been absent with any degree of frequency. Because of the lack of credibility of Respondent’s witnesses so far discussed and to be discussed further, I cannot accept Respondent’s specula- tion that the subpoenaed documents were inadvertently mis- placed. I infer that they contain material corroborative of the General Counsel’s witnesses and adverse to Respondent. 2. The Kibbey’s Restaurant meeting-Deteriorating relations On some date on or about August 1991 at 6 p.m., a group of drivers met at Kibbey’s Restaurant less than a mile from Respondent’s Strickland Street facility. The group consisted of then-employed drivers De Carlo, Ralph (Butch) Clayton, Tim Taylor, Dan Sarzynski, Larry Eiting, and Evelyn Carback. They discussed, inter alia, their mutual complaints concerning the wage freeze, sick leave, the incentive pro- gram, payday, handtrucks, and load bars. At the meeting, De Carlo prepared minutes or notes which set forth the specific complaints of each driver, as well as the general complaints of all drivers. That evening he transcribed his notes to writ- ten form and later added thereto complaints of other drivers who had not attended but whom he had consulted. Two driv- ers, Steve Hennigan and Marc Hurley, had promised to at- tend but failed to do so. The drivers had decided to approach the Union to discuss their concerns but delayed doing so while they waited for Hennigan and Hurley. Having delayed beyond the closure of the union office, they abandoned that plan indefinitely. De Carlo subsequently drafted and typed out an unsigned letter for all drivers addressed to Richard Roe dated August 26, 1991, which requested a meeting to discuss the above- described complaints. De Carlo placed the letter into Roe’s office mail receptacle. A day or so later, the meeting was held and De Carlo took the initiative by explaining to Roe that the drivers had previously met to discuss their employ- ment grievances, and he read aloud to Roe his transcribed notes wherein those complaints were delineated. Roe’s reac- tion was, on the surface at least, benign. He smiled at De Carlo and complimented the unidentified writer of the letter as to its format. Most of the issues discussed at the meeting remained unresolved. However, De Carlo conceded that con- cessions were made as to sick leave and thus some good re- sulted. There was no evidence of any immediate retaliation to any of the drivers, and De Carlo characterized Roe’s de- meanor at the meeting as ‘‘friendly.’’ Nor was there any evi- dence of immediate hostility to De Carlo when he first as- sumed a spokesperson role for employee complaints at the ongoing drivers’ meetings. However, by spring 1992, his em- ployment relationship appeared to have become antagonistic. De Carlo testified that in mid-April 1992, following one of Tyler’s drivers’ meetings, after ongoing wage freeze com- plaints were discussed, De Carlo and Bonnie Roe engaged in a conversation outside Richard Roe’s office witnessed and corroborated in large part by Zeback. De Carlo’s recollection was that he had raised the subject of a long overdue, prom- ised personal wage increase, but that Roe had alluded to the wage freeze and suggested that for him to be excepted, he ought to submit some kind of evidence to warrant it despite the freeze of all other drivers’ pay. She suggested he state his position in the form of a letter. De Carlo testified, how- ever, without contradiction, that he pointed out to her that he voluntarily offered to work late to help out the night opera- tors and that he could serve as a driver problem adviser. Bonnie Roe recalled the incident somewhat differently. According to her, she responded to such a request by him sometime in the spring of 19923 by telling him that Re- spondent was considering the creation of a senior driver posi- tion for training purposes and resolution of drivers- warehousemen’s interface problems, and that she suggested that he apply by letter application wherein he include sugges- tions as to the position. Bonnie Roe testified that she also solicited the same application from such long-tenured drivers as Rudy Dashiell, with 18 to 20 years of seniority, and Larry Eiting who was hired in the summer of 1989. De Carlo re- called that the senior driver position was discussed at another occasion. De Carlo and Zeback testified, uncontradicted by Roe her- self, that during that same conversation, while Bonnie Roe assured De Carlo of satisfaction with his work performance and ability to get his job done, Roe warned him that she rated his ‘‘attitude’’ to have changed over time and to have sunk to an extremely low level, i.e., rated by her as ‘‘D minus,’’ down from a previous ‘‘B plus.’’ According to Roe, but denied by De Carlo, she he told him that this attitude 1175FIBER PRODUCTS was jeopardizing his job. The senior driver position was never effectuated. Mike Taylor was supposedly standing in the doorway. However, since his cryptic version not only differs from that of De Carlo and Zeback, but even from that of Bonnie Roe, I find it to be of no probative value. Ike Tyler’s testimony was so uncertain that he placed the incident in August or September 1992. His hesitant, selective, cryptic account is also unreliable. He recalled that the threat of dismissal was made in reference to De Carlo’s attitude. It is undisputed that De Carlo had never previously been criticized for a poor attitude, but rather he had been com- plimented by Tyler for his good customer relations. Nor is it disputed that Bonnie Roe did not explain to De Carlo what she meant by ‘‘attitude’’ when she spoke to him. Further, Bonnie Roe did not explain why she warned De Carlo that his attitude allegedly jeopardized his job, while simulta- neously soliciting his application for a senior job position with a possible pay raise which she also solicited only from other very senior drivers. Indeed, the warning of job jeopardy is totally inexplicable in the context of any version of the conversation. The solicitation of a letter from De Carlo either for a wage raise justification or for senior driver position im- plies that De Carlo’s job performance was of sufficient high quality to warrant a possible pay raise except for the elusive ‘‘attitude’’ problem which had become an irritant to Re- spondent at least by the spring of 1992. Subsequently, De Carlo did submit a letter dated April 29, 1992, wherein he outlined ‘‘extra things I can do to help things run smoother in the future.’’ He suggested, inter alia, that he could act as a ‘‘group leader’’ to solve drivers’ problems and to serve as an informational, reciprocal conduit between drivers and management. The tone of the letter gives no hint that the writer was under fear of losing his job. The letter specifically referenced itself to a conversation with Roe of ‘‘a few weeks ago.’’ There was no response to the letter. In cross-examina- tion, De Carlo admitted that Roe asked him why his attitude changed and that he told her it was because of the lack of a pay raise. 3. The Big Boy Restaurant incident It is De Carlo’s uncontradicted, credible testimony that route drivers were permitted discretion as to when or where they were entitled to a lunchbreak during the course of deliv- eries. Nor is his testimony contradicted that some route driv- ers had occasionally met at a mutually convenient location where they parked their vehicles and took lunch at one of several restaurants they had frequented in the past, and that Tyler had not only been aware of it but had on one occasion requested that they bring him a certain food item. De Carlo and Zeback differ somewhat as to the permissible length of the lunch hour. De Carlo testified that he was told that he was obliged to take a 45-minute lunch, whereas Zeback testi- fied that he was ‘‘supposed’’ to take a one-half hour lunchbreak. Manager Tyler and other Respondent witnesses were silent on the subject of whether or not there was an ex- plicit maximum time limit for lunches. The written discipli- nary code does not refer to it. The times drivers finished their deliveries and returned to the warehouse were depend- ent upon various factors, including the bulk of the load, the extent of deliveries, the time of departure, and not merely the length of their lunchbreaks. The disciplinary code merely re- fers to a 4 p.m. or later return as a late return for which spe- cial notice is required. On some date probably in or shortly after mid-May 1992, drivers De Carlo, Zeback, Tim Taylor, Clayton, and a fifth driver met for lunch at Bob’s Big Boy Restaurant on Route 40. De Carlo recalled that the fifth driver was Joe Hook. Zeback thought it was Dan Sarzynski. Zeback thought the lunch lasted from 45 minutes to 1 hour. De Carlo estimated it at from 1 to 1-1/2 hours long. The only other participant who testified, Tim Taylor, was not questioned about the meeting. Zeback failed to specifically describe the nature of what was discussed at Bob’s Big Boy lunch. De Carlo was not too certain whether working conditions were actually dis- cussed but speculated that they were, as was customary, whenever drivers gathered. It is De Carlo’s and Zeback’s tes- timony that they had not been instructed on that day nor any other day to return to the terminal at any specific time. There was no explicit contradiction to this testimony although it can be arguably implied from Bonnie Roe’s generalized testi- mony as to the purported need to have trucks returns as soon as possible. Zeback’s testimony that he often did not take a lunch is not contradicted, and Bonnie Roe admitted that he had told her of that practice in May 1992. Respondent’s reaction to that Big Boy luncheon is mark- edly curious, given the past custom of such meetings of which at least Tyler was aware. The chief asserted Respond- ent complaint, of course, is not the meeting itself but the al- leged duration of it. Richard Roe testified that he received a telephone call at his office on some date in May from the manager of the Cash & Carry retail store on Route 40, across from Bob’s Big Boy, who told him that four or five of Re- spondent’s trucks had parked across the street for ‘‘an hour or so.’’ According to Roe, he then asked Mike Taylor ‘‘to check it out,’’ who later reported back to him something he could not recall but to which he instructed Taylor that it was ‘‘his problem’’ and to ‘‘handle it.’’ He recalled no other con- versation with ‘‘anyone’’ else about the incident. Mike Taylor testified that pursuant to Richard Roe’s in- struction, he decided to investigate and drove to the Big Boy Restaurant and observed four Respondent trucks parked ‘‘on our customer’s lot across the road.’’ He testified that he did not enter the restaurant nor did he attempt to speak to or oth- erwise observe the employees. He merely noted the vehicle numbers and, upon returning to Respondent’s facility, he verified that the four numbered trucks were, according to records, driven that day by Tim Taylor, De Carlo, Zeback, and Comegys and reported this to Richard Roe. Taylor testi- fied that drivers are ‘‘supposed’’ to return their vehicles as soon as possible after delivery completion without speeding. He explained that because some customers open early, the first truck back will return as early as 11 or 11:30 a.m., he ‘‘guessed,’’ and the last at about 4 p.m. and that loading crews will estimate the order in which trucks will return for reloading and arrange the loads accordingly on the docks. He explained that if trucks are late, the loading crew will have to work late. He testified to no further need for trucks to have returned as soon as possible on the date of the Big Boy meeting. He also admitted that he did not supervise the driv- ers directly, i.e., that is Tyler’s function. Tyler testified that he heard about the Big Boy luncheon meeting from Taylor who told him that he, in turn, had been told by Roe that four Respondent vehicles were parked on 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Route 40. Tyler, however, testified it was he who identified the drivers from the reported vehicle numbers. Tyler, who is actually responsible for the drivers and their assignments, was totally silent as to the impact, if any, upon his operations on the date of the Big Boy meeting. All of the foregoing managers failed to mention Bonnie Roe’s involvement, if in- deed any, in the incident at the time of its occurrence or what, if anything, she was told about it. De Carlo credibly testified, without contradiction, that a couple of days after the Big Boy lunch meeting that he en- countered Tyler in his office. Tyler snickered and told De Carlo that he heard that a group of drivers had gathered for lunch at Bob’s Big Boy Restaurant. De Carlo testified, with- out contradiction, that he returned his empty vehicle to the facility the day of the meeting at about 2:30 to 3 p.m. and was not told then that he was late or had violated any com- pany rule. De Carlo also testified, without contradiction, that on occasions he had returned his vehicle very early and at one time he telephoned Tyler to tell him he had finished at 10 a.m. and was told not to return but to find something to do elsewhere. Therefore, he had his vehicle washed at an off- premise location. Zeback testified, without contradiction, that he returned his vehicle to the warehouse at about 2 p.m. the day of the Big Boy meeting and that, a couple of days later, Tyler men- tioned to him that his vehicle was seen parked at the Cash & Carry outlet across from the Big Boy for 2 hours. Zeback testified further, again without contradiction, that he told Tyler that he had been misinformed because it was not a 2- hour lunch and the vehicles were parked at the Big Boy, not the Cash & Carry. He testified, without contradiction, that he had never been told what constituted a ‘‘late’’ return nor did Tyler tell him that he had delayed the loading of any truck, but rather merely told him not to take ‘‘too long’’ of a lunch. He testified, without contradiction, that neither Tyler nor any other manager instructed him with respect to returning to the warehouse in reference to loading for the next day’s delivery. Timecards reveal that during May 1992, a 3 p.m. or later punch-out time for almost all the drivers was very common. The timecards reveal no dates when both De Carlo and Zeback returned at an excessively late hour. The documents reveal occasions when they both returned early enough in the afternoon for second runs. I find Respondent’s reaction to the reports it received re- garding the gathering of employees at Big Boy in May to be curious for several reasons. If the supposedly unduly long luncheon meeting had in any way actually impacted Re- spondent’s operation on that day, there is no explanation as to why Taylor simply did not enter the restaurant and order the drivers to return or, at the very least, enter and question them about it. Why all the secretive circumvention and fail- ure of immediate confrontation? Why was there no imme- diate reprimand? It was only some time later that a Respond- ent reaction manifested itself. Zeback had been hired on February 10, 1992, and he was told that his probation would extend for 90 days. On May 26, according to Bonnie Roe, she had executed a personnel performance review form for Zeback, the conclusion of which was an extension of his probation for ‘‘30-60 days’’ which reflected that he was informed that he was subject to discharge ‘‘at any time.’’ Listed as reasons for the rating were: Employee does not meet minimum requirements of the job. Energy-interest level low, does not show much enthusiasm. She further listed as factors affecting his job performance. Employee not self motivated, asks what has to be done, a follower not a leader. 2 hr. lunch unwilling to assume new duties as defined on hire (7-Up driving). Bonnie Roe testified that she had heard from Managers Tyler and Taylor that Zeback had been taking 2 hour ‘‘lunches’’ (plural). There is no evidence to support this testimony of more than one lengthy lunch. She is uncorroborated by Tyler or Taylor. Furthermore, at one point in her testimony, she ac- cused Zeback of having taken a 2-1/2 hour lunch. She testi- fied further that managers Tyler and Taylor had given her in- formation in support of the report a week prior to May 26. She testified also that they reported the Big Boy incident to her. Neither Tyler nor Taylor explicitly corroborated her tes- timony in this regard. At one point, she testified that she drafted the evaluation. At another point, she testified that ‘‘we’’ (presumably Tyler, Taylor and her) drafted the evalua- tion on the same day, and that she found out what the em- ployees discussed on that same day. Then she testified that she interviewed Zeback on May 28. Bonnie Roe then further testified that she drafted an employee reprimand form for Zeback which reflected the following entry: Attendance at a ‘‘Dave De Carlo meeting’’ which re- quested that employees need to get together to discuss ‘‘pay.’’ Meeting held during company time. (2 hrs) which is a gross infraction of company policy. A further entry reads: R. Z. admits to being there [with] 4 other drivers. Knows this is against policy and that [it] is grounds for immediate dismissal. Roe testified that she confronted Zeback in the presence of Tyler on May 28 and discussed the evaluation with him, covering each item point by point. She testified that she dis- covered the nature of the meeting, and that De Carlo had called it, from Zeback, himself, on the date of that confronta- tion on May 28, at which time she discussed with him the evaluation form. Her testimony is not exactly clear as to the sequence of the preparation of the reprimand and the con- frontation itself. She testified that she prepared the reprimand as a warning to Zeback because his attendance at the Big Boy meeting caused an inability to load trucks during a holi- day week at the time of a warehouse merger. Monday, May 25, was the Memorial Day holiday in 1992. The timecards fail to correlate a common tardy return for the Big Boy lunch participants for the week before or after that holiday. As an adverse witness, she had testified that dock employees were actually immobilized and prevented from doing their jobs be- cause of that Big Boy lunch meeting. She did not explain just how this came about. In view of the actual relatively early return by De Carlo and Zeback, it is most improbable. Further, it is uncorroborated by Tyler and unsupported by the timecards. Further, Roe also testified, without corroboration, that the shuttle operation between the two warehouses came to a halt because of the delayed return of the four or five Big Boy luncheon trucks. Manager Taylor not only failed to 1177FIBER PRODUCTS corroborate her, but he made no reference to the shuttle oper- ation in relation to the significance of an expeditious return of fulfilled delivery trucks and the Big Boy incident. As noted above, he excused himself from the attendance of meetings of delivery drivers because of his involvement in the shuttle operation, thus implying that those drivers were free to attend such meetings, i.e., they were not involved in shuttle operations. Finally, there was no mention in the rep- rimand itself of an adverse impact on loading or shuttle oper- ations. Standing by itself, Mrs. Roe’s testimony has all the earmarks of an ill thought-out fabrication. Neither of the managers directly involved with the drivers or warehouse operations testified as to any specific impact of the Big Boy lunch meeting upon Zeback’s, De Carlo’s, or any other participant’s actual return time-loading con- sequences on that specific date, as noted above. Mike Taylor merely alluded to the general reloading practice without any reference to the shuttle operations. Respondent witness Tyler testified in a cryptic, reluctant manner that he had ‘‘played a role’’ in the written evaluation of Zeback, and he answered ‘‘yes’’ to Respondent counsel’s suggestion that he was present at the evaluation review. At first, he could only recall that they had discussed Zeback’s need to improve unspecified work habits and his ‘‘attitude.’’ At further prompting by Respondent’s counsel, he testified that they discussed ‘‘troublemakers.’’ He explained vaguely that because of Zeback’s attitude, he was considered a ‘‘trou- blemaker.’’ Tyler testified to no specific misconduct or ex- amples of poor work performance and was silent as to the impact, if any, of the Big Boy meeting participants’ return time upon loading operations. Neither Tyler nor Taylor testi- fied whether or not he had actually reported any such impact to Bonnie Roe, whose own actual supervision of the drivers was remote at best. Tyler could recall nothing further of the May 28 performance review of Zeback. He was silent as to the subject of Bonnie Roe’s written reprimand, and his recol- lection was silent as to any disclosure by Zeback as to who called the Big Boy meeting or what was discussed there. There is some dispute as to whether Zeback was given an opportunity to read the May 26 performance evaluation. Roe became typically hostile, argumentative, and evasive when questioned by counsel for General Counsel about it and fi- nally admitted she could not recall what she actually told Zeback. Zeback testified that he saw it lying on her lap but it was neither read to him verbatim nor was he given an op- portunity to read it. He also testified that the May 28 rep- rimand was not seen by him nor was he aware of it until the time of this trial. He testified, and Mrs. Roe admitted, that he had been given no prior warnings or reprimands. It is also undisputed that he was not given any subsequent eval- uations or reprimands. Zeback’s account of the personnel evaluation clashes with Roe’s. Unlike Roe, Zeback testified with a demeanor that was confident, straightforward, sponta- neous, direct, and particularly impressive in cross-examina- tion. He conceded that she appeared to be looking at the evaluation form as she talked, but what she said to him dif- fers. According to him, she did not discuss the Big Boy meeting nor was there reference to a ‘‘Dave De Carlo meet- ing.’’ According to him, the actual gathering was more of a luncheon than a meeting and he had no idea what a reference to a ‘‘Dave De Carlo meeting’’ meant. Zeback testified that he was told by Mrs. Roe that his probation would be ex- tended and the promised 75-cent hourly raise would be de- ferred because she felt he was not sufficiently familiar with the merchandise being delivered, and ‘‘because I had been seen consorting with troublemakers that [sic] had a bad out- look on the company [and she] wanted to make sure I didn’t change how I felt about the company, otherwise, I was ok.’’ When he asked her to identify the so-called ‘‘troublemaker,’’ she refused. Thus, if anything, Tyler’s testimony more close- ly corroborates Zeback than it does Roe, particularly the troublemaker reference. I credit Zeback over the inconsistent, contradictory, improbable testimony of Respondent’s wit- nesses. Zeback testified, without contradiction, that despite the proposed probation extension to 30 or 60 days, about 2 weeks later he was promoted to permanent status when Tyler provided him with his proof of insurance coverage and noti- fication to him of a change of status with a commensurate raise. Tyler was silent as to this inexplicable promotion in the face of the alleged written evaluation and reprimand. Bonnie Roe was acutely flustered when questioned about it and was unable to give an intelligible response even when examined by Respondent’s own counsel, who struggled to get some kind of response from her. When her attention was directed to the language of the reprimand, which warned of an imminent termination, and the incongruity of a sudden promotion, she first testified, ‘‘his attitude got a little bet- ter.’’ Then she testified, ‘‘I don’t know why.’’ At this point, as at numerous points in her examination, she gave every im- pression of contriving and exaggerating as she went along. A particular example is when she testified without any cor- roboration as a Respondent witness and embellished Zeback’s alleged excessively long Big Boy lunch to be part of a habit stemming from the very beginning of his employ- ment which she had heard from unidentified, admittedly hearsay sources. There is no further explanation as to why Buccheri drivers were laid off and Zeback was retained if there had been any real problem in his work performance. The testimony of Respondent’s witnesses thus undermines the probative value of its so-called documentation and raises serious questions of fraudulent production, either as to sub- stance or timing. Despite the General Counsel’s demand for production of all employee reprimands for the material time involved, only two such printed form reprimands issued to employees were produced. One was the foregoing reprimand to Zeback. The other was the only written reprimand ever to have been en- tered into De Carlo’s personnel file and which was dated June 19, 1992. The written entries thereon read as follows: confronted of [sic] poor attitude, cooperation, meeting on company time. overall performance severely affected by the above. Job becoming ‘‘at risk.’’ . . . . Employee acknowledges he is upset by no pay increase and that his attitude has changed. . . . . previous verbal warning . . . . monitor behavior and performance . . . . Like Zeback’s reprimand, it was signed by Bonnie Roe. It is undisputed that De Carlo was never shown a copy of the 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reprimand nor was he aware of it prior to trial. Bonnie Roe at first testified that De Carlo had not been disciplined for the Big Boy meeting. After she was confronted with the doc- ument, she testified that the reference there to ‘‘meeting on company time’’ meant the Big Boy luncheon of May which obviously had been perceived by Respondent to be a clandes- tine meeting ‘‘on company time’’ by employees to discuss mutual employment conditions and complaints. It is admitted that no other employees were reprimanded in consequence of the Big Boy meeting. Thus the onus of that concerted activ- ity engaged in at Bob’s Big Boy for employees’ mutual aid and protection fell upon De Carlo and Zeback, at least as it was perceived and suspected by Respondent’s agents. With respect to the reference in the purported reprimand to De Carlo dated June 12, 1992, the reference therein to a confrontation must refer to the confrontation described above which preceded the April 29, 1992 wage increase justifica- tion letter, because there is no evidence of any other oral confrontation regarding attitude or work performance. De Carlo was hired in December 1989 and had been subject to periodic written evaluations. Clearly, these documents are relevant. However, although subpoenaed by the General Counsel, they, like several other relevant and critical docu- ments, were not produced and presumably rest in that mys- terious black hole which seems to afflict certain of Respond- ent’s records. De Carlo testified that he was at least aware of one such document after a year of employment which, ac- cording to his uncontradicted testimony, was, at Taylor’s re- quest, drafted by De Carlo himself and adopted by Taylor. Needless to say, the document was highly praiseworthy. That act by Taylor indicates the high regard that Respondent had of De Carlo’s work performance prior to the purported change in his ‘‘attitude.’’ 4. The alleged August 1992 layoff decisions The Respondent contends that the October 5 layoffs of De Carlo and Zeback were the consequence of layoff decisions made on August 1992 prior to any known or suspected union activities. The General Counsel argues alternatively that the October layoffs were precipitated by subsequent union activi- ties but that, in any event, if adverse decisions had been made in August, it was because of Respondent’s animus to the actual and suspected concerted protected activities of De Carlo and Zeback, as already discussed. Richard Roe vaguely testified that he instructed his super- visors to reduce costs ‘‘as a common practice.’’ He testified that he ‘‘repeatedly’’ complained to Manager Taylor that the payroll expenses were too high and that he should lay off employees. He was unable to estimate the dates of these con- versations. He ‘‘guessed’’ that in October 1992, he instructed Taylor to lay off some drivers and warehouse employees. He did not specify identities nor the number of layoffs he had requested. Mike Taylor’s uncertain recollection of the layoff decision had to be refreshed by a statement of position Respondent’s counsel had submitted during the investigation of the case. From this rather questionable point of reference, Taylor was then seemingly able to recall that in August 1992, he and Bonnie Roe had decided to rank employees in layoff pref- erence in order to achieve cost savings at some future layoff calculated to take place on October 1, at the end of what he called the busy season. He testified that it was he and Bonnie Roe who decided to rank the following employees to be laid off, if needed, in the following order: Zeback, De Carlo, Hurley, Comegys, and Tim Taylor. He gave no further expla- nation or details of the motivation for the decision at that time, i.e., August 1992. Comegys and Tim Taylor were never laid off. Incidentally, De Carlo and Comegys were the only Respondent drivers to possess the highly desirable class A driver’s license which enabled them to drive a large 26’ to 28’ combination tractor-trailer vehicles. It is Tim Taylor’s credible and uncontradicted testimony that after the October 5 layoffs at a drivers’ meeting, Richard Roe announced a plan to obtain tractor-trailer units, and Tyler later told him to try to get a class A CDL. In cross-examination, he re- vealed that Tyler had speculated on such possible acquisi- tions even before the layoffs. De Carlo testified, without con- tradiction, that Manager Taylor mentioned at more than one drivers’ meeting an intention to acquire tractor-trailers. None were actually purchased. Tyler, who is self-characterized as the drivers’ supervisor, failed to testify to any specific input regarding an alleged layoff decision of drivers in August or October 1992. Bonnie Roe is the only Respondent witness to testify with any semblance of confidence that a layoff ranking of drivers was made precisely in mid-August 1992. She first did so when examined by counsel for General Counsel as an ad- verse witness. She explained that the actual layoffs were not effectuated until October 5, 1 day into a new pay period, be- cause the drivers’ vacation periods and the busy season cre- ated a demand for drivers’ services. She also conceded that the summer busy season actually ends the third or fourth week of December. Respondent’s vacation roster records for 1992 reveal that employees’ vacations did not end by Octo- ber 5 but rather actually occurred later in the month. Further- more, the record evidence and testimony of Manager Taylor reveal that the last 2 weeks in October and the entire period of time from mid-November to January 1, 1993, was des- ignated by Respondent as a ‘‘no vacation’’ period because no drivers could be spared during that busy season when backup drivers are often required. Furthermore, drivers and ware- housemen were not permitted to take vacations during the last week in October because of the inventory work done that week. Manager Taylor also conceded that Respondent is ex- tremely busy during the November-December period because of holidays, when backup drivers are called upon to drive ‘‘extra runs.’’ Thus Bonnie Roe’s testimony that it was more convenient to defer the layoffs to October 5 is contrary to the facts in the record, the testimony of Manager Taylor and Respondent’s own records. The vacation period did not end on October 5. Moreover, the fall-winter busy season was just about to begin. Other than that brief conclusionary testimony of Bonnie Roe, there are no details as to exactly who de- cided to lay off employees and then defer it to October, or what specific rationalization was behind it as of mid-August 1992. It is undisputed that no driver was notified in August or thereafter of the possibility of a future economic layoff. Inexplicably, there is no contradiction whatsoever to De Car- lo’s testimony that Manager Tyler told him prior to his lay- off that customers Shoppers Food Warehouse and Farm Fresh intended to expand their operations and, therefore, De Carlo’s work would be expanded. 1179FIBER PRODUCTS 5. Union activity According to the composite testimony of De Carlo, Zeback, and Tim Taylor at the very end of September 1992, probably on or about Monday, September 28, a group of drivers met in or just outside Respondent’s facility between 5:30 to 5:45 a.m. and discussed the subject of obtaining union representation. The group included De Carlo, Zeback, Comegys, and Tim Taylor. The meeting actually started as three of them were standing around waiting for the necessary paperwork, which had to be checked first and which delayed departure on that busy delivery day. Comegys joined them and heatedly complained about his run and the sequence of his stops that had been prearranged. The discussion then turned to common work and pay complaints, including heav- ier runs. Tim Taylor described Comegys as most upset and the one who raised the subject of the Union. According to Taylor, De Carlo then assumed the leading role in the discus- sion. One of the drivers pointed out that De Carlo’s brother, Richard, was a union shop steward at the Leonard Paper Company. De Carlo was asked to talk to his brother about getting union representation, i.e., in particular, according to Taylor, to get a union representative to talk to the drivers. De Carlo agreed. As they walked out to the delivery vehi- cles, they jointly agreed that Tuesday, October 6, would be a convenient time to meet with a union representative and to provide sufficient notification to other drivers. Although one or more warehousemen were nearby during this discussion, there is no direct evidence that any manager overheard the conversation or that anyone reported it to them. Richard De Carlo was well known to Manager Tyler who had many discussions with him during Richard De Car- lo’s regular delivery or pickup visits to Respondent’s ware- house on behalf of his employer. He was known to other Re- spondent employees as well. It is undisputed that De Carlo passed on a tip from his brother to Manager Tyler to the ef- fect that a former Buccheri salesperson had secretly retained a Respondent client contrary to an outstanding agreement. The tip resulted in a reward bonus of $25 given to De Carlo on or about June 5, 1992, by Richard Roe himself, i.e., just after De Carlo’s job supposedly had been jeopardized by the Big Boy meeting and his alleged ‘‘poor attitude.’’ According to the undisputed testimony of the De Carlo brothers, they spoke shortly thereafter about the drivers’ union representation decision. Despite past generalized dis- cussions between them in the past, this was the first explicit expression of a desire for union representation effort ex- pressed by De Carlo to his brother. Accordingly, David De Carlo contacted union representative Arthur Jefferson with respect to the inception of organizing efforts at the Respond- ent’s facility and their desire for an October 6 meeting. On September 29, 1992, De Carlo signed an authorization card for representation by the Union. On the same day, Zeback signed another such card at the Union’s office where he met with Jefferson and Richard De Carlo. Jefferson testified in corroboration of their activity. As it turned out, these were the only cards Jefferson ultimately received. Jefferson spoke to De Carlo by telephone at that time and explained the nec- essary procedures for organizing the drivers. On September 30, Richard De Carlo telephoned his broth- er with the message that Jefferson would meet with Re- spondent’s drivers on October 6 at 4 p.m. at the union hall which was located in close proximity to Respondent’s facil- ity. The next day, Thursday, De Carlo, Zeback, and Tim Taylor passed the word verbally to all the delivery drivers that a union organizing meeting would be held on October 6 at the union hall at the agreed-upon time, and he talked with them about the subject of the meeting. De Carlo spoke to them variously in the warehouse, out on the warehouse parking lot, at the 7-Up warehouse, or on the CB radio. De Carlo testified that these discussions were held overtly in the open areas during the entire work prior to October 5. In fact, he observed Tim Taylor engage openly in such conversation with Hook. However, there is no direct evidence that any of these conversations were overheard by any manager or re- ported to them. At best, there is Bonnie Roe’s admissions that she relies on hearsay and indirect information in forming personnel evaluations, e.g., Zeback, and that she has made it her business to be informed as to the activities on Respond- ent’s facilities, including the conversations, actions and con- duct of drivers which she also makes a habit of auditing and observing when she can. In particular, she admitted, ‘‘We were keeping very close tabs on Bob Zeback,’’ and admitted overhearing Zeback’s conversation. It is not a difficult task because the drivers, for business reasons, are frequently in and out of the ‘‘run room’’ which serves as the first line managers’ offices of Tyler and Taylor and is located in the front main office of the facility. The October 6 meeting was aborted after all the drivers bailed out upon hearing of De Carlo’s and Zeback’s termi- nations on October 5. 6. The October 5 job terminations Manager Taylor rendered another of Respondent’s uncer- tain, vague cryptic accounts of a critical event, i.e., the per- manent layoffs of De Carlo and Zeback. According to him, there appeared to be no precipitating event for the layoff other than the August determination to defer layoffs to the end of the busy season on October 1. There is no evidence to clearly make Monday, October 5, as the definitive end of the busy season. Furthermore, there is no evidence as to why the decision was previously made to lay off two active driv- ers and one long-term injured, inactive driver on that precise date nor who previously made it. In any event, according to Manager Taylor, at the end of their runs on Monday, October 5, he called Zeback and De Carlo into his office individually, and in that order, and engaged in much the same conversa- tion with both of them. He claims he told Zeback that in order to cut work, there had to be a layoff and unfortunately he was one of them, to which Zeback ‘‘mumbled or some- thing.’’ Taylor testified that the same conversation occurred with De Carlo except De Carlo refused to turn over his vehi- cle keys until he received his final paychecks. Because the testimony of De Carlo and Zeback is more detailed and certain than Taylor and not explicitly contra- dicted and because Taylor, like other Respondent witnesses, suffered from a credibility deficiency discussed elsewhere, I credit the drivers and find the following actually occurred. After completing his run and returning at about 3 p.m., Tay- lor summoned Zeback to the run room office where, alone, he was told of his permanent layoff because of cutbacks. Upon being asked, Taylor said that Zeback’s route was not being cut, and that less senior drivers were being retained be- cause seniority did not matter. When asked if the true reason for the termination was union talk, Taylor did not deny it but 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stood mute. Taylor told him that the layoff decision had been made on Friday, September 29. Taylor refused to explain why the drivers had not been informed on Friday. The pay records indicate the weekly pay period ended on Saturday, October 2, 1992. He offered no explanation as to why cut- backs were being made nor what change in business neces- sitated it. Zeback testified that from his observation, there had been no decline in the amount of delivery loads. As noted above, part of the drivers’ complaints was that their loads were being unduly increased and their runs lengthened without an increase in pay. On October 5, when De Carlo had finished his run, Mike Taylor excused the other drivers from the run room and said to De Carlo, ‘‘I don’t know how to tell you this but I have to lay you off.’’ Upon being asked by De Carlo, Taylor de- nied that he was eliminating De Carlo’s run, denied that se- niority meant anything and claimed that the Company was ‘‘cutting back.’’ De Carlo asked for the real reason, and Tay- lor answered that was all he could say except that Bonnie Roe had stated ‘‘flat out’’ that De Carlo ‘‘had to go.’’ Taylor told him the layoff was permanent. Neither De Carlo nor Zeback was offered any other job position such as driver/- warehouseman or warehouse jockey at driver pay or less, al- though driver/warehousemen were admittedly advertised for at length and hired periodically thereafter. These will be dis- cussed more fully hereafter. However, it should be noted that Bonnie Roe attempted to explain the need for placement of ads for ‘‘drivers’’ at about the time of the layoffs was be- cause she really wanted to hire driver/warehousemen of whom experienced, drug-free applicants were rare. Therefore, she used the lure of a ‘‘driver’’ want ad as a deceptive lure. Despite the questionable plausibility of the effectiveness of such a ploy, it fails to explain why she also placed distinct, separate ads for driver/warehousemen and jockeys. De Carlo testified that after his layoff he followed the van that he normally drove for over 2 years which continued its same pattern of delivery by Larry Bialek. This contradicts Bonnie Roe’s testimony that there was a complete, imme- diate restructuring of delivery routes at the time of layoff. De Carlo’s testimony, however, was not contradicted or rebutted. Bialek continued servicing what had been De Carlo’s deliv- ery route. De Carlo further testified, without contradiction, that he engaged in postlayoff telephone conversations with Manager Tyler. De Carlo testified, without contradiction, that he telephoned Manager Tyler and asked him how Bialek was coping and Tyler responded that he was doing ‘‘ok’’ but that the Pennsylvania part of the route was a ‘‘little tough.’’ Al- though not alleged as violative conduct in the complaint, other drivers closely identified with the late September union organizing activities also suffered adverse consequences, while those not so closely allied fared significantly better. The formal type evaluations by Mrs. Roe, first seen as ap- plied to Zeback, now surfaced in Respondent’s personnel ac- tions and files after the October 5 layoffs. Tim Taylor’s for- mal evaluation dated October 12, 1992, noted, in part, ‘‘com- plains more than normal-critical of company and others,’’ and ‘‘safe driver but behavior attitude undesirable-a can- didate for layoff . . . .’’ Comegys’ evaluation dated October 10,1992, contained the following significant notation: ‘‘gen- erally satisfactory-too concerned of others workload.’’ It also concluded: Mike was placed on probation on 10/10/92. Attitude and behavior must improve or he will be terminated w no further warning. Also aware that he is next in line for lay off. Work volume good but personal traits need to change. Has never recd. verbal or written warning until this date [hired in 1984]. However, entries dated ‘‘12/6/92’’ and ‘‘3/93’’ show a re- markable improvement. Other drivers, however, received praiseworthy evaluations, particularly noting good attitude for Weil and the ability to ‘‘learn quickly’’ for Joe Hook. Also, not alleged as a violation, Respondent effectuated wage increases in early October 1992 to drivers Bialek, Clayton, Dashiell, and Hennigan, as Mrs. Roe claimed, to be competitive in the market. 7. Postlayoff operations Other than De Carlo, Zeback, and the inactive, injured Hurley, no other drivers were laid off. There is no expla- nation as to why it was determined to stop the layoffs at two active delivery drivers although other drivers were sup- posedly in jeopardy of layoffs, according to the alleged Au- gust decisions. There is no evidence that Respondent cal- culated a specific dollars-and-cents cost-savings objective when it decided upon the October 5 layoffs. The testimony of its witnesses as to the cost savings is vague and general- ized. The testimony of Bonnie Roe is particularly elusive, eva- sive, inconsistent, contradictory, if not outright mendacious, as to the immediate impact of the cost savings of the layoffs. She testified that the routes were completely redone. Other uncontradicted testimony and documentary evidence indicate that this was not done, e.g., De Carlo’s route remained the same. His vehicle was driven by the backup ‘‘driver in train- ing,’’ Bialek, who only in the summer of 1992 had acquired the requisite license for driving a route delivery vehicle. He finished his training, according to Bonnie Roe’s admissions, around October 1, 1992, when he received a wage increase. Bialek, except for 1 week of back injury, drove the same ve- hicle until, in mid-January 1993, he rendered it totally inop- erable and unrepairable in an accident after which he was in- jured, received worker’s compensation leave pay, and was consequently placed on probation. The former De Carlo route was thereafter driven by Joe Kindle, a probationary backup driver who fortuitously possessed a class B CDL at the time of hiring on September 7, 1992, about a month after the pur- ported decision was made that it was economically necessary to lay off employees, and particularly drivers. This vehicle driven by Zeback continued to service the particular route it had been servicing, except it was now driven by Otto Weil who had been hired as a warehouseman and who had obtained a class B CDL in February 1992. Thus, like Bialek, he now became one of the 10 drivers regu- larly assigned to one of the 10 route delivery vehicles. Hur- ley was injured and off duty in the summer of 1992 and did not work after the week ending July 17, 1992. His vehicle and route had been assigned to Joe Hook who was hired in March 1992 and who ended his probation by virtue of a raise to an hourly rate of $9.25 for the week ending June 26, 1992. Hook also took over Clayton’s route but not until Clayton resigned in March 1993. Eiting also resigned but not until June 1993. Those two were the only subsequent driver 1181FIBER PRODUCTS terminations, but they occurred many months after the lay- offs and they were voluntary. Bonnie Roe testified that the laid-off and resigned drivers were never replaced. She testified that ‘‘we needed fewer drivers and warehousemen . . . fewer everybody!’’ As al- ready obvious, however, is that De Carlo’s and Zeback’s po- sitions were filled by drivers who had been hired, as De Carlo and Zeback also had originally been hired, i.e., as backup drivers. Neither De Carlo’s route nor Zeback’s route was merged with any other route, nor were their vehicles re- turned to Ryder upon their layoff. Bonnie Roe testified that the layoffs resulted in a cost-sav- ing because of decreased staff, trucks, gas, and mileage. She estimated savings of 1-1/2 truck rental. When pressed for more specifics such as the dollar amount saved, she re- sponded that she did not know. At one point, she testified that Respondent used temporary employees after the October 5 layoff but, when I questioned her about it, she immediately retracted this testimony. As already found above, there was in fact no immediate reduction of total employees as of October 5, except for the active driver layoffs. Thus De Carlo and Zeback were not caught in an across-the-board cut in staff as of that specific date. The overall reductions can be seen as attributable to the merger consequences. Hurley had not been able to work as a driver since July. After the layoff of De Carlo and Zeback, Hurley was offered but declined a warehouse job. Only a nonfleet delivery truck was returned to Associated, i.e., truck 108 on October 16, 1992, more than a week and a half after the layoff. The annotation on the rental billing suggests that Ryder was notified only after it had already prepared the pro- spective October billing, and thus the decision to not retain the vehicle was not made in advance of October 1 but after- ward. Bonnie Roe testified that fewer trucks were needed as an immediate consequence of the October 5 layoffs. Manager Tyler, as a Respondent witness, testified that he immediately used fewer drivers and accomplished this by adding more stock to the delivery trucks. However, Tyler’s testimony, as an adverse witness, contradicts not only Roe but his own tes- timony as a Respondent witness because he conceded that Respondent continued utilization of the same 10 Ryder rental route delivery vehicles until the Bialek accident in mid-Janu- ary. Respondent’s records also verify the continued usage of those vehicles, all of which required a class B CDL driver. The vacancies created by the layoffs of the active drivers were simply filled by drawing upon backup drivers available and promoting them. That conduct incurred upon Respondent the expense of Ryder testing and certification. According to documentary evidence from the payroll weeks ending January 10, 1992, through February 7, 1992, Respondent employed for its Fiber Products and Buccheri operations 14 drivers and between 16 to 18 warehouse per- sons. Sixteen drivers and warehousemen each were employed by those operations thereafter until the week ending March 6, 1992. One more driver was added thereafter until the week ending June 12, 1992. Warehousemen started to decline in number the week ending June 5. As of the week ending June 26, there were 13 drivers, but the next week it increased to 16 drivers through the week ending July 17. Warehousemen for that period ranged from 16 to 13 and backup to 16. By the week ending August 7, there were employed by Re- spondent, for non-7-Up operations, 12 drivers and 17 ware- housemen. Although the warehouse complement declined by 1 or 2 persons, the driver complement remained at 12 but increased to 13 the week ending September 5, 1992, when the number of warehousemen went back up to 17. Those fig- ures remained constant through the pay period ending Octo- ber 9, 1992. Thereafter, for the next 2 weeks, there were 12 drivers and 17 warehousemen. From the weekly pay period ending October 30, 1992, through the period ending January 15, 1993, Respondent employed 11 drivers and 14 ware- housemen. For the next 2 weeks, there were 9 drivers and 15 warehousemen. From February 19, 1993, through April 30, 1993, there were 9 drivers but 16 warehousemen. From May 14 through June 11, there were 8 drivers and 14 or 15 warehousemen. The foregoing survey thus corroborates testimony of a contraction in driver complement in late summer of 1992 fol- lowing the merger of the Buccheri operation into that of Fiber Products. The figure decreased from a high of 17 driv- ers and 16 warehousemen to 12 drivers and 17 warehouse- men for the first week of August and 15 warehousemen thereafter, Yet, despite the so-called August decision to re- duce employment levels, Respondent actually increased the drivers to 13 and warehousemen to 17 all through the period immediately preceding the October 5 layoffs, which were limited to only two active employees, De Carlo and Zeback. The warehousemen complement, which, of course, included backup drivers, remained at 17 until mid-November. Although Respondent argues that the October 5 layoffs were part of a general attrition of the labor force, it took place within the context of an ongoing effort to hire drivers and driver-warehousemen, as disclosed by the publication in newspapers of want ads for those jobs, placed there by Bonnie Roe. In late January and early February 1992, Respondent, in an advertisement for drivers, characterized itself as a ‘‘rap- idly expanding.’’ In an early March 1992 want-ad for ‘‘driver/warehousemen,’’ it reiterated that characterization of itself as ‘‘rapidly expanding.’’ It reiterated that description again in an April advertisement soliciting drivers. It adver- tised for driver/warehousemen in mid-May 1992. On June 7, it advertised for drivers, driver/warehousemen, and jockeys. Most significantly, despite the testimony regarding a sup- posed August decision to reduce the employment com- plement, including drivers, and despite Richard Roe’s testi- mony of ongoing instructions to cut employment levels, Re- spondent, through Mrs. Roe, explicitly advertised on August 30, 1992, for a truckdriver to engage in delivery work. That advertisement was inexplicably repeated on October 4, 1992, for a delivery driver for delivery work with a class B CDL. Thereafter, advertisements were placed offering employment for backup drivers or driver/warehousemen who possessed a class B CDL on October 11, October 25, and November 15, 1992. By May 2 and 16, 1993, Respondent was again adver- tising for ‘‘drivers,’’ not driver/warehousemen. And, on June 6 and 27, 1993, it was soliciting employment for drivers ex- plicitly with a class B CDL for delivery work. That employment solicitation activity by Respondent casts extreme doubt on the claim that its employment level of drivers was due to an intentional effort to keep it low rather than an inability to find enough qualified drivers. Remember, two drivers resigned voluntarily in the summer of 1992. I re- 1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Richard Roe testified that there had not been any interchange be- tween Fiber Product drivers and the two or three 7-Up drivers. ject as nonsensical and completely disingenuous Mrs. Roe’s explanation that she really intended to lure the hiring of drug-free competent driver/warehousemen by advertising for ‘‘delivery drivers.’’ I reject her testimony that Respondent had no need for delivery drivers on or after October 5 as pat- ently false. Driver/warehousemen continued to be hired after October 5, who possessed a class B CDL and who, at Re- spondent’s expense, were sent to Ryder for testing and cer- tification. 8. Noneconomic reasons for layoff selection There is more to Respondent’s defense than economic ne- cessity. It argues, and its witnesses testify, that De Carlo and Zeback were selected for permanent layoff because their em- ployment was unacceptable despite protestations that they were not in fact ‘‘bad employees.’’ From Mrs. Roe’s testimony, if she were to believed, the trier of fact could only conclude that Respondent considered De Carlo and Zeback to be not ‘‘bad employees’’ but, rather, horrible employees. When questioned about her negative opinion of these drivers, she accused them of a variety of es- sentially attitudinal failings. She accused Zeback of a mul- titude of ‘‘policy violations,’’ almost all of which arose out of the Big Boy luncheon. Engaging in a preposterous cas- uistry, she contorted that incident to define it as ‘‘unauthor- ized use of equipment.’’ She accused Zeback of not being energetic, of being a ‘‘loafer,’’ not a ‘‘team player,’’ and of meeting the minimum expectations of the job from the day he was hired. There is no specific evidence, however, as to how these generalizations were translated in the ability or in- ability to deliver merchandise promptly and without attendant customer problems. There is nothing in his timecards nor was there any specific evidence anywhere in the record that he failed in this task in any way. Bonnie Roe testified that Zeback was ‘‘insubordinate’’ be- cause he, as a former 7-Up backup driver, refused to deliver some 7-Up merchandise. The 7-Up operation is clearly dis- tinct from that of the merged Fiber Products and Buccheri operations. Tyler testified that he asked both Zeback and De Carlo to accept some 7-Up work but they refused. No details were given except that it occurred ‘‘more than once’’ in the spring and summer of 1992.4 From his testimony, we have no idea of the nature of the requests, the forcefulness of it nor the urgency of it, if any, nor whether it had any effect at all on getting the job done. It cannot be determined wheth- er it was a casual permissive-type inquiry, a solicitation for volunteers or something approaching an order. It is certainly not clear that it was an actual assignment of 7-Up delivery work that Zeback and De Carlo refused. As Tyler explained in cross-examination, he did not actually assign any 7-Up work to De Carlo because De Carlo was not a 7-Up driver. Inferentially, we can conclude the same of Zeback who had ceased doing 7-Up backup driving early in his career and was now an FPC driver. However, Mike Taylor testified, without reference to time, date or any specific circumstances, that Zeback ‘‘more than once refused’’ to perform 7-Up backup driving. He did not make clear whether Zeback re- fused a casual, general inquiry, a specific request or some- thing in the nature of an order. Taylor testified in cross-ex- amination that it was Ike Tyler who assigned Fiber Product trucks to Zeback on a daily basis, and he conceded that the circumstances therefore never arose to assign Zeback a 7-Up truck. In light of Respondent witnesses’ obtuse, conclu- sionary, inconsistent, contradictory testimony, I credit Zeback’s testimony that after an initial 1-1/2 week of 7-Up backup delivery work, he was never asked to do it again. I credit his testimony that, at most, Manager Taylor mentioned that he might be needed as a backup for an absent 7-Up driv- er. Mrs. Roe testified that she observed Zeback loafing and ‘‘gabbing’’ with an office clerk several times during his term of employment and was ‘‘amazed’’ at his temerity as a new employee when he asked her one time if he needed to stay at the warehouse despite an exceptionally early return from delivery. However, she admitted that she had been aware that he often took no lunchtime despite the fact that there was calculated into his pay a period of 45 minutes of unpaid lunchtime during a delivery run. She admitted that she did not speak to Zeback nor discipline him in regard to the ‘‘gabbing’’ with the office clerical. Roe admitted she was not present when Zeback arrived in the morning nor did she check his timecard and thus was not in a position to know whether, in fact, he had already put in his required workday on that occasion. Mrs. Roe, Taylor and Tyler also accused Zeback of refus- ing to accept overtime work in the warehouse or to assist in the warehouse moving. Again, their testimony was given without any foundation as to time, date, day of week, nature of the request, or any other circumstance. Zeback testified that with respect to the work, including overtime work related to the consolidation of the warehouses in the summer of 1992, such work was performed on a vol- untary basis and that he and De Carlo, in fact, assisted on several occasions in the Buccheri consolidation. He testified that several drivers, including Hennigan, Dashiell, and Comegys did not ever volunteer. In cross-examination, Tyler denied that Comegys never performed overtime warehouse work but admitted that he, as well as other drivers, refused such work during the summer of 1992 for a variety of rea- sons, including fatigue or personal problems. He concluded that the timecards reflect overtime work. Comegys’ timecards reveal no overtime work at all. Respondent testimony of a refusal to work on a couple of occasions does not necessarily amount to categorical testimony that Zeback never performed extra work. Both Mike Taylor and Bonnie Roe admitted that they did not directly supervise the drivers. In cross-examina- tion, Taylor conceded that he was not certain whether or not Zeback did perform some extra warehouse work during that period. There is no contradiction to Zeback’s characterization of that work as voluntary. Zeback’s timecards corroborate his testimony that he did, in fact, perform overtime work on sev- eral occasions. The foregoing Respondent testimony regarding all the faults of Zeback that motivated his selection for an economi- cally motivated discharge, including the alleged 7-Up insub- ordination, clearly predate and supposedly were manifested during the summer of 1992 and were thus extant at the time when Zeback’s extended probation was suddenly cut short and he was made permanent and given a pay raise for rea- sons Mrs. Roe could not explain, except for her feeble muted response that he had rapidly improved his ‘‘attitude.’’ Re- 1183FIBER PRODUCTS spondent’s decision, allegedly made about 1 month later to mark Zeback for permanent layoff for alleged faults that were condoned by his promotion to permanent status and pay raise, is wholly incongruous, illogical, and outright irrational. Respondent’s rationale for the selection of De Carlo for layoff actually exceeds the inconsistency, contradictions, im- probability, and irrationalities of those set forth in the fore- going testimony concerning Zeback. De Carlo’s employment tenure was much longer. His quality of work performance undisputedly occasioned compliments from his superiors. He was able to achieve an envious and valuable customer rap- port, which Tyler conceded other drivers failed miserably. He was rewarded for his tip on a Buccheri salesman. De Carlo was, unlike Zeback, placed on a salaried method of pay based upon a 50-hour workweek. He possessed a class A license at a time when Respondent was considering acquir- ing vehicles which required such license and when Respond- ent was encouraging other drivers to acquire such license. It is undisputed that he was one of only a few senior drivers who were selected by Tyler to train new drivers. Indeed, it is admitted that Respondent’s dissatisfaction with his services commenced with his perceived change in ‘‘attitude’’ in spring and early summer 1992, and which resulted in the un- published file reprimands of summer 1992 as memorialized in Respondent’s file stemming from the ‘‘Dave De Carlo’’ meeting at which employees mutually discussed and com- plained about working conditions, most particularly their wages. The specific De Carlo performance faults cited by Re- spondent are as unfounded, generalized, petty, unfocused, and patently contrived as are those of which Zeback was ac- cused. In addition to the same ‘‘attitude’’ problem, they al- legedly shared the same faults with respect to the non- performance of 7-Up work. As a Respondent witness, Ike Tyler answered ‘‘yes’’ to the leading question as to whether De Carlo was asked to do 7-Up work which he refused. Tyler, however, claimed that De Carlo threatened to quit if he were ever required to do 7-Up delivery work which he protested was too arduous. With respect to warehouse work, he testified again that ‘‘yes,’’ he was asked to do this work at some unspecified date, in an unspecified context, during the spring and summer 1992, at which time he refused, but Tyler admitted that De Carlo did help out then, at least ‘‘once or twice.’’ As noted above, in cross-examination, he admitted that he did not assign 7-Up duties to De Carlo be- cause De Carlo was not classified as a 7-Up driver, i.e., those duties were not incumbent upon a Fiber Products driv- er, i.e., paper products, route delivery driver. Michael Taylor, at best, merely could not ‘‘recall De Carlo assisting in the Buccheri warehouse transition as he could not ‘‘recall’’ Zeback doing the same although he asked him to do so. Taylor did not even testify that he actually person- ally made that request of De Carlo. From the foregoing generalized, detail-meager context, Bonnie Roe’s accusatory testimony took flight. Without any foundation, she testified that De Carlo categorically ‘‘re- fused’’ warehouse work. From that point, she descended to claiming that De Carlo did ‘‘not like’’ warehouse work. Thereafter, her complaint was that De Carlo ‘‘when asked . . . seldom participated’’ in warehouse work. When pressed for dates, she referred counsel for General Counsel’s ques- tions to Taylor. As an initial adverse witness, Roe was called upon to set forth the reasons specifically why De Carlo was selected for layoff. She answered that he had ‘‘attitude prob- lems,’’ that he was not a ‘‘team player,’’ that he lacked ini- tiative, that he was not cooperative and that she could think of no other reasons. Then she referred to ‘‘policy infrac- tions.’’ When pressed to explain, she testified that De Carlo had used ‘‘profane’’ and ‘‘threatening language’’ in a con- frontation meeting in June 1992 with Tyler and herself after De Carlo had claimed that he nearly incurred serious injury from some falling, improperly loaded boxes. She also cited Taylor’s report as to the ‘‘two and one half’’ hours’ Big Boy lunch and the refusal to perform the warehouse and 7-Up work. As a Respondent witness, she accused De Carlo generally as not energetic. As to the loading negligence confrontation, she testified now that De Carlo was angry and had threatened to sue the Respondent in the future if he ever was injured again and that, after the lawsuit, Respondent would be left with no assets. Tyler’s version of the confrontation made no reference to any abusive or profane language or personally threatening language or conduct by De Carlo. Tyler’s more moderate recollection was that De Carlo ‘‘complained’’ that if he got hurt in the future, he would sue the Respondent for negligence in loading but that De Carlo himself offered to stay after his shift for 1 or 2 days to instruct the loaders in proper loading techniques. The Respondent clearly viewed the incident seriously at the time in that it investigated and actually held a meeting with the loaders to correct their load- ing habits. However, De Carlo did not attend. Tyler testified that within 2 weeks after the incident, Respondent gave a loading bar to De Carlo and another driver to see if it would help prevent further loads from falling on the drivers. Thus, according to Tyler, Respondent viewed De Carlo’s accident and complaint at the time as neither frivolous nor aberra- tional. Respondent argues in support of Mrs. Roe’s accusation of noncooperative attitude that De Carlo refused to regularly at- tend mandatory monthly drivers’ meetings. As a reticent Re- spondent witness, Tyler testified without conviction that monthly drivers’ meetings were ‘‘mandatory’’ and that, in July, De Carlo was absent without excuse at one meeting. According to Tyler, De Carlo later justified his absence by explaining that nothing gets accomplished at the meetings anyway. According to Tyler, Zeback also failed to attend be- cause he had babysitter problems at that late hour when meetings were scheduled. Tyler claimed that he posted ad- vance notices for these meetings. However, Tyler admitted that no absent driver, including Zeback or De Carlo, had ever been reprimanded for nonattendance, just as De Carlo and Zeback had never been reprimanded for refusing to perform 7-Up driving, warehouse work or any other nonroute delivery work they allegedly had been ‘‘requested’’ to perform. As an adverse witness, Tyler admitted that on occasions when driv- ers return very early from their deliveries, they do not want to attend the late afternoon meetings and did not do so. He admitted that he in no way ever disciplined the absent driv- ers. Rather, he merely met with them individually and sum- marized for them what had been discussed. That testimony totally undermines his later characterization of those meet- ings as universally ‘‘mandatory.’’ The continuing inconsistencies, contradictions, lack of mu- tual corroboration of Respondent’s witnesses and their gener- 1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alized, unfounded testimony discredit them, and I credit the more certain, spontaneous, and convincing, detailed testi- mony of De Carlo and Zeback as to the issues of warehouse, overtime and 7-Up work requisite, as well as the other attitu- dinal inadequacies and alleged faults described above. According to the credited testimony of De Carlo, I find the following: As verified by his timecards, De Carlo did per- form extra work, including numerous instances of second runs that ended late in the day. As corroborated by Zeback, De Carlo did perform extra work in the warehouse and vol- unteered, upon Tyler’s request, to clean up and remove scrap pallets. He performed this on a monthly basis by use of his personal vehicle (not denied by Tyler). On occasion, De Carlo helped other drivers unload their vehicles, using a forklift truck (not specifically denied). De Carlo also used his own vehicle on occasion to make a special delivery to avoid the costs of using a large truck (not specifically denied). He did perform shuttle runs between warehouses. With respect to the April to June period of warehouse consolidation to Strickland Street, he worked two evenings after completion of his daytime delivery runs and did the same with respect to the Commerce Drive warehouse consolidation. With re- spect to the 7-Up consolidation, he transferred old machines to the new facility. De Carlo never refused to work extra warehouse duties when asked and never told anyone he would not accept it. Moreover, his testimony is uncontradicted that Tyler told him that some drivers helped but some did not with respect to this extra warehouse con- solidation work. For the same critical period of time, driver Comegys’ timecards reflect that he did not perform any extra work. De Carlo, at Tyler’s request, made special after hours’ deliveries of boxed soda syrup on his own time, on his way home to such customers as the ‘‘Bag and Box’’ and the A & P Supermarket warehouse (not denied). With respect to the transfer of 7-Up facilities to the new warehouse, De Carlo assisted in that transition. When the 7- Up operation was first obtained, De Carlo agreed to make the initial run so that he could evaluate it for Richard Roe. De Carlo thereafter explained the details of the run to Roe and explained the need for a special beverage vehicle to ac- commodate the 7-Up syrup containers which had spilled in the first run (not denied). Roe asked De Carlo to stay late and mop up the spilled syrup, and he did so, in the summer of 1992. De Carlo also explained to Tyler about the need for an appropriate beverage vehicle upon completing a 7-Up de- livery to Pennsylvania as requested by Tyler (not denied). De Carlo did not ever threaten to quit if assigned to 7-Up bev- erage delivery but rather stated that the driver ought to be assisted by a helper. Tyler did not contradict De Carlo’s tes- timony that he told De Carlo that while some drivers refuse any extra work, he could rely on De Carlo to do extra runs or extra work as requested. With respect to the confrontation after a 40-pound box, part of a load, fell on De Carlo during the course of a deliv- ery run, De Carlo merely complained about the improper loading and lack of load bar. He told Tyler that something had to be done about the loading of the night crew because someone could get seriously hurt and might sue the Respond- ent. De Carlo did not express anger nor did he curse or use any of the unspecified profanity alleged by Bonnie Roe, but of which Tyler was silent. He did not threaten to sue Re- spondent as she testified. He was not seriously injured on that occasion. Later that summer, he did sustain a muscle in- jury during his work duties. Pursuant to Tyler’s instructions, he was examined by a doctor who instructed him to perform only light duty for a week. Instead, he performed at least 4 days of his normal delivery duties but missed two drivers’ meetings. He did not sue the Respondent nor make any other claim upon it. Given this undisputed testimony, it is most improbable that De Carlo would have reacted as violently as Bonnie Roe described in an earlier less serious incident. It further belies her testimony that De Carlo harbored a hostile, uncooperative attitude toward Respondent. With respect to drivers’ meetings, there was, over the years, an erratic pattern as to their regularity and De Carlo attended the vast preponderance of them. De Carlo did not tell Tyler that he would not attend drivers’ meetings because nothing got accomplished. Rather, he asked him whether, at one particular meeting, anything could be accomplished to warrant him waiting around several hours to attend an unpaid meeting on his own time after he finished an early run. He was never told attendance was mandatory and, as Tyler ad- mitted with respect to other early drivers who did not want to attend, he was informed by Tyler the next day of the sub- stance of the meeting. It is clear that De Carlo was never reprimanded or warned for refusing any work requested of him, about his improper loading complaint or his absence at any drivers’ meeting. The only reprimand extant is the one discussed above which, admittedly, was never presented to De Carlo and of which he had no knowledge prior to the trial of this case. From the foregoing findings, the so-called attitudinal faults of De Carlo then take on the character of postdischarge contri- vances. Necessarily, Respondent’s explanations for not offering Zeback or De Carlo other work such as backup delivery or warehouse work must be rejected as specious, i.e., they had assumed that because of past refusals, they would not want to accept any other work. Further, it is explained that it was assumed they would not accept the lower paying jobs in the warehouse. Respondent’s records reveal past instances of transferring between delivery work and warehouse work by class B CDL possessors. Furthermore, there is evidence that, upon being transferred back to the warehouse, other drivers continued to be paid at the driver rate of pay. Analysis For the reasons set forth above, I credit the testimony of the General Counsel’s witnesses wherever it conflicts with that of any Respondent witness. I find that Respondent’s dis- satisfaction with the employment of De Carlo and Zeback is as reflected in its file memoranda of May and June 1992, i.e., the concerted activity engaged in with respect to the mu- tual discussion of pay and employment complaints and De Carlo’s leadership role thereof and Zeback’s ‘‘follower’’ role which, in Respondent’s perception, manifested itself in the watershed event of the May 1992 Big Boy meeting. The doc- umentary evidence is tantamount to an admission that they were punished because of their concerted activities, which, if not tainted by misconduct, would clearly be protected by the Act. Meyers Industries, 268 NLRB 493, 497 (1984), and Meyers Industries, 281 NLRB 882, 885 (1986), enfd. 835 F.2d 1481, 1482-1483 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). 1185FIBER PRODUCTS The credible evidence reveals Respondent’s attempts to transform De Carlo’s and Zeback’s concerted activity into an act of misconduct, and to taint the discriminatees’ behavior with other unrelated attitude problems to be false and pretextuous. Although I have strong doubts that the Zeback evaluation and his and De Carlo’s reprimands actually ex- isted at the time of their surface dates, I conclude that the attempt therein to relate the attitude problems to other non- protected activities is contrived and mendacious. Some of Respondent’s witnesses’ evidence hinted that its displeasure with De Carlo related his individual attitude problem to a rejection of his individual pay raise. However, the overwhelming evidence reveals that, to Respondent’s per- ception, his individual complaint was enmeshed with his spokesperson role on behalf of all drivers’ pay and work conditions complaints. Bonnie Roe perceived the Big Boy meeting as a ‘‘Dave De Carlo’’ initiated meeting to discuss pay complaints. For reasons known to herself, she identified Zeback, one of four or five attendees, as a De Carlo fol- lower. Indeed, she explicitly characterized him as a ‘‘fol- lower’’ in her written evaluation of him. She orally criticized him for having associated with ‘‘troublemakers.’’ The only credible evidence of any real ‘‘troublemaking’’ is the con- certed activities of De Carlo and other drivers which they en- gaged in for their mutual aid and protection. Zeback, of course, was vulnerable at that time because of his proba- tionary status which was extended at the moment of Bonnie Roe’s emotional reaction to his association with De Carlo, but which inexplicably, quickly ended when Zeback’s atti- tude was perceived to have ‘‘improved.’’ The original complaint alleges that De Carlo and Zeback were discharged for either union activities or other concerted protected activities. The background hostility and discrimina- tory treatment of May and June 1992 are clearly relevant to the permanent layoffs of October 5, 1992, as indeed the same motivation is also alleged to have caused it, i.e., concerted protected events are closely related to the October alleged violations. Respondent cites Redd-I, Inc., supra, with respect to the necessity to evaluate whether there is a close relation- ship of pre-10(b) events to justify subsequent consolidation with an outstanding complaint. In that very case, the Board, inter alia, considered whether a respondent would raise the same defenses and therefore would preserve its evidence against otherwise untimely evidence. Clearly, the Respond- ent’s defense as to why De Carlo and Zeback were chosen for layoff, in deference to other drivers, was their alleged at- titude and related problems which existed throughout 1992. Prior evaluations, if not adduced by the General Counsel, most certainly would have been preserved for the defense. On that test alone, the May-June allegations are closely re- lated and therefore not untimely alleged. I conclude that the Respondent’s animosity toward De Carlo’s and Zeback’s concerted protected activities persisted up to and motivated, at least in part, by the October 5 perma- nent layoffs. In justification of her low evaluations of those drivers which determined their high layoff priority and con- sequential layoff, Bonnie Roe repeatedly reiterated the Big Boy luncheon meeting and their persisting ‘‘attitude’’ prob- lems. The preponderance of evidence thus establishes that De Carlo and Zeback were laid off in October because of their preexisting concerted activities and attitude toward such ac- tivities, and that all alleged nonrelated employment problems of attitude or otherwise were false and pretextuous. The General Counsel alleges and argues that De Carlo’s and Zeback’s late September union activities also motivated and precipitated the precise timing of the layoffs. There is no direct evidence of Respondent’s knowledge of their union activities. However, I conclude that there is abundant evi- dence to infer its hostility to union representational efforts. The Respondent’s is proven to have been hostile to concerted protected activity. Union representation a fortiori is the ulti- mate form of concerted protected activity. Bonnie Roe admit- ted to a habit of keeping close observation and auditing of drivers, and most particularly Zeback’s onsite activities. She admitted to using hearsay sources upon which to premise employee evaluations. Yet, there is no direct evidence of knowledge of the late September union activities of De Carlo and his past recognized follower in concerted activities, Zeback, upon which Respondent almost immediately reacted to terminate them 1 day into a new pay period, at a very busy time for reasons already found to be pretextuous, and which fortuitously aborted a scheduled union meeting of drivers. In evaluating the General Counsel’s burden of proof, the Board and reviewing Courts have taken into account the dif- ficulty of proving motivational causation, the evidence of which is virtually within the control of or hidden in the mind of the decisionmaker. Confessions of unlawful motivation, or other palpable evidence of such, is rare. Prosecutions more frequently are premised on circumstantial evidence upon which inferences can be made. Accordingly, the Board, with higher Court approval, has determined upon the evidentiary burden of proof as explicated in Wright Line, 251 NLRB 1083 (1980), and approved by the Supreme Court in Trans- portation Management Corp., 462 U.S. 393 (1983). In that case, the Board addressed itself to the issue of mixed motiva- tion, i.e., where, as is so often the situation, there exists evi- dence that a Respondent employer was in part motivated by nondiscriminatory business motivations and, in part, by moti- vations discriminatory under the Act. The Board in that case held that, henceforth, in all such mixed motivation cases, it would place the burden upon the General Counsel to come forward with evidence that was sufficient to demonstrate that at least in part, the Respondent was discriminatorily moti- vated. If the General Counsel meets that burden, the Board held, with subsequent Court approval, that the Respondent must thereupon assume the burden of proving that regardless of the presence of unlawful motivation, it would have nec- essarily engaged in the same decisional conduct because of other lawful nondiscriminatory reasons. The Wright Line bur- den of proof upon General Counsel may be sustained with evidence short of direct evidence of motivation, i.e., inferen- tial evidence arising from a variety of factors, i.e., union ani- mus, timing, pretext, etc. Furthermore, it may be found that where the Respondent’s proffered nondiscriminatory motiva- tional explanation is so consummately false, even in the ab- sence of direct evidence of knowledge of and animus toward the protected activity, the trier of fact is constrained to infer unlawful motivation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The Board has recently made it clear that it adheres to the Shattuck Denn rationale as it has stated in a case of falsity of defense: 1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. The Board is entitled to infer that the Respondent’s true motive was unlawful, i.e., because of the [discriminatee’s] protected activity. See Williams Contracting, 309 NLRB 433 (1992). I find that the facts of this case, which disclose Respond- ent’s animosity of and close scrutiny of De Carlo’s and Zeback’s past and ongoing concerted protected activities, the overt nature of their union activities, the astonishing timing of their precipitous termination after the union activity, and the falsity of the proffered reason for their selection for lay- off mandate a finding that Respondent was aware of and ter- minated them precisely on October 5, 1992, because of their sudden union activities, if not wholly, then certainly in part for those activities and their past actual and perceived con- certed protected activities. I find that Respondent has established that business rea- sons may have existed for the justification of a general attri- tion in the work force. I find that Respondent has not sus- tained its Wright Line burden of showing that De Carlo and Zeback, rather than any other driver, would have been laid off regardless of their union and concerted protected activi- ties. I further find that Respondent’s evidence fails to dem- onstrate that any delivery driver layoffs would have, in any event, occurred precisely on October 5 or that any immediate economic benefits, cost savings in terms of total driver em- ployment hours or vehicle usage were immediately incurred on or shortly after October 5, 1992. Accordingly, I find that the General Counsel has more than sustained the burden of proof under Wright Line, and that the Respondent has violated Section 8(a)(1) and (3) as alleged in the complaint and as amended at the trial. On the entire record, including the amendments to the complaint, the amended answer and the stipulations of the parties, I make the following CONCLUSIONS OF LAW 1. As found above in the findings of fact, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 2. Respondent violated Section 8(a)(1) of the Act by ad- versely appraising and reprimanding employee Robert Zeback in May 1992 and by reprimanding employee David De Carlo in June 1992 because of their concerted activities protected by the Act. 3. Respondent violated Section 8(a)(1) of the Act in Au- gust 1992 by its designation of the above-named employees to be permanently laid off at a future date because of their concerted activities protected by the Act. 4. Respondent violated Section 8(a)(1) and (3) of the Act on October 5, 1992, by terminating the employment of em- ployees David De Carlo and Robert Zeback because of their prior concerted activities protected by the Act and because of their more recent activities on behalf of Teamsters Local Union No. 355. 5. The above-found unfair labor practices interfere with the free flow of interstate commerce. REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged em- ployees David De Carlo and Robert Zeback, I recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former positions or, if those posi- tions no longer exist, to substantial equivalent positions, without prejudice to their seniority and other rights and privi- leges, and to make them whole for any loss of earnings suf- fered as a result of its unlawful conduct by payment of a sum equal to that which they would have earned absent the discrimination, with the backpay and interest computed in ac- cordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest thereon to be com- puted in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). I shall also recommend that any reference to their terminations be expunged from their reprimanded employment records. Having found that Respondent unlawfully and adversely appraised Robert Zeback on May 1992, and unlawfully rep- rimanded David De Carlo in June 1992, I shall recommend that any reference to those personnel actions be expunged from their employment records. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, FPC Holdings, Inc., d/b/a Fiber Products, Baltimore, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Adversely appraising, reprimanding, or otherwise dis- ciplining employees or designating them for layoff because of their concerted activities protected by the Act. (b) Laying off or terminating the employment of its em- ployees or otherwise discriminating against them because of their concerted activities protected by the Act and/or activi- ties on behalf of Teamsters Local Union No. 355 or any other labor organization. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Offer David De Carlo and Robert Zeback immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered as a result of its unlawful conduct in the manner set forth in the remedy section of this decision, and expunge any reference to their terminations from their work records. (b) Remove from the work records of David De Carlo and Robert Zeback the unlawful reprimand issued to David De 1187FIBER PRODUCTS 6 If 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.’’ Carlo in June 1992, and the unlawful reprimand and adverse appraisal issued to Robert Zeback in May 1992. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Baltimore, Maryland facilities copies of the attached notice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT adversely appraise, reprimand, or otherwise discipline employees or designate them for layoff because of their concerted activities protected by the Act. WE WILL NOT lay off or terminate the employment of our employees or otherwise discriminate against them because of their concerted activities protected by the Act and/or activi- ties on behalf of Teamsters Local Union No. 355 or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer David De Carlo and Robert Zeback imme- diate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings suffered as a result of our unlawful conduct and expunge any reference to their terminations from their work records. WE WILL remove from the work records of David De Carlo and Robert Zeback the unlawful reprimand issued to David De Carlo in June 1992 and the unlawful reprimand and adverse appraisal issued to Robert Zeback in May 1992. FPC HOLDINGS, INC. D/B/A FIBER PRODUCTS