Fotomat Corp.

National Labor Relations Board - Board Decisions

Oct 16, 1972

199 N.L.R.B. 732 (N.L.R.B. 1972)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fotomat Corporation and Warehouse , Mail Order and
Retail Employees Local Union 853 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 20-CA-7139
October 16, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 26, 1972, Administrative Law Judge'
James R. Webster issued the attached Decision in this
proceeding. Thereafter Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited cross-exceptions and a brief in support. The
General Counsel also filed a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions, as modified, of the Administrative
Law Judge and to adopt said recommended Order
except as modified herein.
We do not agree with the Administrative Law
Judge's findings that no independent 8(a)(1) viola-
tions occurred.
The initial contact with the Union occurred in
July 1971 when employee Arthur Barrett spoke with
a union representative about organizing. Barrett was
later discharged and this discharge was found to be in
violation of Section 8(a)(3), a finding with which we
agree. Barrett solicited employees to join and, after
the petition was filed on July 13, 1971, was twice
asked by members of management why he had not
brought the problem directly to them. This occurred
shortly after Respondent received notice of the peti-
tion, when Area Supervisor Donald Barry questioned
Barrett, and again in August, when Respondent's vice
president, Scott Fitzgerald, was visiting the area. After
asking why Barrett wanted someone else to talk for
the employees, Fitzgerald took the occasion to em-
phasize his power over Fotomat's operation and his
authority to close down the Bay area facility. Barrett
then stated that he saw union representation as no
threat to the Company. Fitzgerald's reply, that he
thought it was a threat, was found by the Administra-
tive Law Judge to show union animus, the purpose for
which the General Counsel offered this particular
1 The title of `"rnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
conversation?Meanwhile, Respondent's regional di-
rector, Kinkead, came to the plant and held a meeting
with several employees, including Barrett and Al Lo-
era-Rubalcava. Once again they were asked why the
Union had been called to represent them and asked
what were their grievances. The employees then
voiced some specific dissatisfactions including wages
and medical benefits, whereupon Kinkead spoke of
financial difficulties and the closing of the Tampa and
Baton Rouge areas. Kinkead then outlined company
progress in granting employee benefits over the years,
assured them of improved benefits as the Company's
financial position was improved, and noted a recent
decentralization in operations which would result in
area managers having more power to give wage in-
creases. Asked how much more the employees would
earn if the vote were against the Union, Kinkead stat-
ed that the law prohibits promises during a campaign
but that the employees' situation would improve as
the Company's position improved. He also mentioned
that, if the Union did come in, the employees might
get no improvements at all "because the Union might
be pressing for too much." He went on to say that, if
the Company had to pay high wages and provide
more benefits, it might cause the Company to go out
of business. The Administrative Law Judge viewed
Kinkead's assurances that conditions would improve
not as a reward for rejecting the Union but as indica-
ting a past practice of the Company. He treated the
plant closure threat as a description of the
Respondent's "general financial" picture unrelated to
unionization. We consider this to be an unrealistic
appraisal of Kinkead's remarks. There is no evidence
that the Company was in the habit of soliciting griev-
ances from its employees and it appears that the com-
bination of promise-including increased authority at
the local level with respect to wage increases-and
threat, inherent in Kinkead's remarks, arose directly
from the Union's organizing campaign and its peti-
tion for an election? That union demands might cause
the Company to "go out of business" was not based
on an economic prediction, or known inability to
meet union demands, but strongly implied retaliatory
action of the kind about which employees are most
sensitive .4 We find that the Kinkead remarks as a
whole constitute interference, restraint, and coercion
in violation of Section 8(a)(1).
In October 1971, the plant closing theme was
echoed by Area Manager John Walasek who, when
asked about the possibility that the area could close
if the Union came in, replied that he "would not
2 The Barry and Fitzgerald conversations with Barrett were not alleged as
8(a)(l) violations.
3 See Rotek Incorporated, 194 NLRB No. 73 (TXD)
4 See N L R. B. v . Gissel Packing Co., 395 U S 575, part IV; see also James
Hoomaian d/b/a Chicago Master Mattress and Furniture Company, 196
NLRB No 99 (TXD)
199 NLRB No. 116
FOTOMAT CORPORATION
doubt the Company would go that far ." Unlike the
Administrative Law Judge , we do not view this as a
personal opinion lacking in certainty . Walasek was a
supervisor and, as such , his comment was attributable
to management . In addition the statement reiterated
the plant closing threats already made by manage-
ment representatives Kinkead and Fitzgerald. We
find Walasek 's statements a violation of Section
g(a)(l)s
AMENDED CONCLUSIONS OF LAW
Delete from Conclusion of Law 2 in the Admin-
istrative Law Judge's Decision the following: "nor has
it engaged in illegal interrogation, promises or threats
to employees."
Add Conclusions of Law 3 and 4:
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and it
will effectuate the policies of the Act to assert jurisdic-
tion herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein, and hereby orders that Respondent, Fotomat
Corporation, San Leandro, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified:
1. Insert the following as paragraph 1(a) in the
said recommended Order and reletter the remaining
paragraphs accordingly.
"(a) Interrogating employees concerning their
reasons for seeking union representation and, at the
same time, promising them improved benefits and
wage increases without union intervention, as well as
threatening possible plant closure if the Union should
win.
2. Substitute the attached notice for the Adminis-
trative Law Judge's.
5 Also alleged as an 8 (a)(1) violation were Walasek's October remarks to
employee Loera-Rubalcava about "keeping it cool" etc., which strongly sug-
gest a motive to chill unionism in the context of an impending visit from a
company official and of pending representation matters before the Board.
We do not include these in our 8(a)(1) findings as we agree with the Adminis-
trative Law Judge that they are repetitive of smular remarks made when
earlier managerial visits were in the offing but no representation problems
existed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
733
The National Labor Relations Board having found,
after trial, that we violated Federal law by discharging
an employee to interfere with and to discourage mem-
bership in the Warehouse, Mail Order and Retail Em-
ployees Local Union 853, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America:
WE WILL offer full reinstatement to Arthur J.
Barrett with backpay plus 6-percent interest.
WE WILL NOT discharge or discriminate against
any employee for joining or supporting the
above-named Union or any other union.
WE WILL NOT question you about your reasons
for seeking union representation while promising
you improved benefits and wage increases if you
reject unionization or threaten possible plant
closing if the Union should win.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the National
Labor Relations Act.
FOTOMAT CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER. Trial Examiner: This case , with all
parties represented, was heard, in San Francisco, California,
on March 2 and 9 and April 17, 1972, on complaint of the
General Counsel and answer of Fotomat Corporation, here-
in referred to as Respondent. The complaint was issued on
January 12, 1972, and amended on March 2 and April 17,
1972, on a charge filed November 24, 1971, and alleges that
Respondent terminated employees Arthur J. Barrett and
Alphonse Loera-Rubalcava and made promises and threats
to employees thereby engaging in violations of Section
8(a)(1) and (3) of the National Labor Relations Act, herein
called the Act.
Briefs have been filed by the General Counsel and
Respondent and these have been carefully considered.
Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
B. Alleged Interference
In July, 1971, employee Arthur Barrett contacted a
representative of the Union about organizing the employees
of Respondent's East Bay Area. He was given authorization
cards and he solicited employees to join the Union. On July
13, 1971, a petition for representation was filed . Shortly
after Respondent received notice of this, Don Barry, assist-
ant to area manager, asked Barrett what was the reason for
the union approach and why Barrett had not brought his
problems to him. Barrett explained that Barry was a new
man with Respondent and there was nothing he could offer
as a solution.
About a week later, Joseph Kinkead, Respondent's re-
gional director of the region which includes the East Bay
Area, visited the East Bay Area and called a meeting of
some of the employees. At this meeting were Barrett, em-
ployees Daniel Turner, Alphonse Loera-Rubalcava, and
John Foley, and Assistant to the Area Manager Don Barry.
Kinkead told the employees that Respondent had re-
ceived notification that a petition for representation has
been filed. He asked what were their grievances and why
they had called upon the Union to represent them. Barrett
told him that they wanted a third party to represent them
because as individuals they had no power to get anything
from the corporation; Loera said that their wages were low
and that they needed an increase. Turner complained about
the medical benefits. Kinkead told them that the company
had had financial difficulties and that within the past few
months had shut down its Tampa, Florida, area and its
Baton Rouge area because of economic conditions. He
showed them an annual report of Respondent' s earnings.
Kinkead told them that Respondent had been going
through a wage freeze for approximately 9 months; that no
one in the Company had received a raise during that time
and some had taken a pretty good-sized cut in wages; that
the wage freeze had recently been terminated, and that they
had recently given individual wage increases ; that Barrett
had received one; and that the wage freeze had been na-
tionwide. Kinkead told them of the Company' s progress as
far as employee benefits were concerned; that when he
started with the Company there was no insurance program
and that now there was a medical program; that as the
Company's financial position improved, he was sure that
the benefits would improve for the employees as they had
in the past; that Respondent had recently decentralized its
operations and that this would result in decisions being
made at area and regional levels; and that area managers
would have more power to give wage increases . Turner
asked how much more he would be earning if they did not
vote for the Union, and Kinkead replied that the law pro-
hibited him from making any promises but that as the
Company's position improved, the situation of the employ-
ees would also improve; that if the Union did come in, his
hands would be tied; that they might get no improvements
whatsoever because the Union might be pressing for too
much; that if the Union were to represent them and if the
Company had to pay high kwages and benefits and if the
Company could not afford it, this might cause the Company
to go out of business.
Kinkead in effect assured or promised the employees
The Respondent is a California corporation and is
engaged in the retail sales of photographic services, pro-
cessing, and film nationwide. Respondent's operations are
divided into regions and each region into areas. This pro-
ceeding involves Respondent's East Bay Area with office in
San Leandro, California. The East Bay Area comprises the
counties of Alameda, Contra Costa, Solano, and Napa in
which there are 26 retail outlets. During the past year, Re-
spondent had retail sales in excess of $500,000, of which at
least $10,000 were to firms outside the State of California.
I find that Respondent is an employer engaged in com-
merce and in an operation affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Warehouse , Mail Order and Retail Employees Local
Union 853, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent discharged Arthur J. Barrett
because of his activities on behalf of the Union or because
of the manner in which he performed certain of his duties
as maintenance man.
2. Whether Respondent discharged Alphonse Loera-
Rubalcava because of his union activities.
3. Whether Respondent made promises or threats to
employees violative of Section 8(a)(1) of the Act.
FOTOMAT CORPORATION
that employee benefits would increase and working condi-
tions would improve without their resort to union represen-
tation. But, he based this not as a reward for their rejection
of the Union but on past practices of the Company. I find
that Kinkead's remarks constitute no illegal interrogation,
promises, or threats. His statements regarding the closing of
certain area offices were part of Respondent's general finan-
cial picture and was not related to unionization.'
In October, 1971, just before a representative of
Respondent's regional office was due to visit the area office,
Loera-Rubalcava had a conversation with Area Manager
John Walasek in which Walasek told him that he and John
Foley should "keep it cool" so that they would not get on
the "shit list." It is not shown who was due to visit the area
office or the purpose of the visit, but at the time a represen-
tation election in another bargaining unit was pending and
also an investigation into challenged ballot following an
election among the drivers (the unit to which Loera-Rubal-
cava and Foley belonged) was pending. Walasek did not
specify in what way or why they were to keep it cool. Loera-
Rubalcava testified that on other occasions when a repre-
sentative of Respondent' s regional office visited the area
office, Walasek had told them that they should "keep it
cool." Loera-Rubalcava testified that "usually when he
mentions about keeping cool when someone comes from La
Jolla he mentioned who all he talked to. One occasion Joe
Kinkead came down. He mentioned that we should keep it
cool. He also mentioned Art [Barrett] but this case he didn't
mention Art."
The General Counsel contends that when the state-
ment is considered in context of the pending election and
the pending investigation of challenges, it is coercive. But,
Walasek has made the same admonition on other occasions
when a visitor from the regional office was expected. In view
of this fact and the indefiniteness in the remark itself, I
cannot find that the statement of Walasek to "keep it cool"
to avoid the "shit list" constituted a threat or interference
with union activities.
Also in October, 1971, employee Alphonse Loera-Ru-
balcava asked Area Manager Walasek about a remark that
he had heard as to the possibility that the area could close
if the Union came in . Walasek replied that he would not
doubt the Company would go that far.2 Due to the fact that
Walasek's reply was in the nature of a personal opinion and
lacked certainty, I find that it did not violate the Act.
In August, Barrett had a conversation regarding the
Union with Scott Fitzgerald, Respondent's vice-president of
operations, during the latter's visit to the East Bay Area.
Fitzgerald asked him why he wanted someone else to talk
for them. Barrett replied that it had been their experience
that promises had been made and not kept because of
changes in supervisory personnel, and that a union contract
would exist independently of any personnel changes. Fitz-
gerald replied that he was the national director of opera-
tions of Respondent and that he was Fotomat as far as
operations were concerned and had the power, if anything
went wrong, say in one of the areas in the East, to close the
area down. Barrett stated that he did not consider the union
' Crystal Lake Broom Works, 159 NLRB 429; Sheboygan Sausage Compa-
ny, Inc, 156 NLRB 1490.
2 I do not credit ' Walasek 's denial of this conversation.
735
representation to be a threat to the Company; Fitzgerald
said he thought it was.
The above-related conversation was not offered by the
General Counsel as constituting a violation of the Act, but
was offered on the contention that it exhibits union animus
by Respondent. I find that the fact that Fitzgerald consid-
ered the Union to be a threat to the Company exhibits union
animus.
C. Discharge of Arthur Barrett
Barrett was employed by Respondent as a mainte-
nance man in its East Bay Area and he worked for Respon-
dent for a period of almost 2 years, January 8, 1970, to
November 22, 1971. He was responsible for maintenance at
the several retail outlets of Respondent in this Area and for
the maintenance of its three vehicles. When he started his
employment with Respondent, there were 13 retail outlets
in the Area and, when he was discharged, there were 26.
Respondent contends that Barrett was discharged pri-
manly because he did not perform his administrative re-
sponsibilities-his paper work-in a timely manner, and
also because of the manner in which he handled an automo-
bile repair job and an automobile paint job.
In the course of the performance of his duties, Barrett
was required to complete certain forms. At the beginning of
his employment, he used a daily log showing his time of
arrival and departure from the various places visited during
the course of the day. Other forms he used included a ve-
hicle monthly log and preventive maintenance certificate; a
weekly maintenance report on vehicles; a maintenance
work order which directed his attention to work that was
required to be done at any of the facilities of Respondent;
a form entitled repair order that goes to a vendor if extraor-
dmary third party accidents occur in any of the stores of
Respondent; a form entitled report of accident or loss which
initiates an investigation as to the nature and description of
any accident or repair necessary and caused by a third party
(a person other than an employee) to either a vehicle or one
of Respondent's stores; and a form that is a purchase order
on any item exceeding $100 for repairs to vehicles or to one
of Respondent's stores.
In October 1971, one of Respondent's vehicles needed
engine repair. Walasek instructed Barrett to obtain several
bids, which Barrett did. Barrett then contacted
Respondent's regional office in La Jolla, California, and
obtained an approval for the engine repair not to exceed
$600. The job was submitted to the lowest bidder and Wala-
sek told Barrett to have the vehicle checked over for other
things that might go wrong. Apparently Barrett told the
garage to check for and make other repairs that might be
needed. Repairs were made and the bill that was submitted
exceeded $900 which included both engine and other re-
pairs. Later, Walasek received a call from Regional Director
Kinkead complaining that the bill received was in the
amount of $913. Walasek told Kinkead that he would dis-
cuss the matter with Barrett and the vendor. Walasek told
Barrett that the regional office was upset about the matter
because the bill exceeded the $600 that had been authorized.
In the early part of November 1971, the area office
received approval to have one of its vehicles painted. Wala-
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sek instructed Barrett to obtain bids on the paint job, and
to obtain a purchase order from the regional office for the
job. Walasek ' was out of the office for several days. On
Walasek's return to the office, he noticed that the vehicle
had been painted . A few days later , he received a call from
Regional Director Kinkead complaining that no purchase
order had been obtained for the paint job and that an in-
voice had been received at the corporate office in the
amount of $300 . Walasek asked Barrett why he had not
obtained a purchase order before having this job done and
Barrett replied that he had forgotten and was busy . Follow-
ing this discussion and at Walasek 's instructions , Barrett
called the regional office and obtained a purchase order for
this job . Respondent has a national agreement with an auto
paint concern for the painting of its vehicles ; apparently this
company was not used and apparently Walasek did not
have knowledge of the national agreement as he asked Bar-
rett to obtain bids for the job.
Also in November 1971, Walasek received a telephone
call from George Grimm , Respondent 's insurance repre-
sentative in La Jolla, California , in which Grimm stated that
he was bringing his files up to date and that there was a
backlog of 12 or 15 work orders or insurance forms due
from the East Bay Area , and that he was not having this
trouble with other area offices.
Walasek testified that at the time of the telephone call
from Grimm, he made his decision to terminate Barrett. In
April 1971 , Walasek had received a similar call from the
secretary of Grimm regarding forms that had not been sub-
mitted . On that occasion the complaint was that about five
or six forms had not been submitted . Also in June 1971,
Walasek received another call about delinquent forms; on
this occasion 10 or 12 items were involved.
Walasek received the call from Grimm on November
17. He filled out a termination form for Barrett that day. On
the next day, he told Barrett that he had consistently failed
to comply with administrative responsibilities of his job and
that he was to be terminated . He told Barrett that he would
be given a 2-weeks' notice . Thereafter Walasek spoke with
Richard Nye, the Regional Director who replaced Joseph
Kinkead; Nye told him that a 2-week notice is not given
where a termination is made for cause . Also, Nye made
arrangements to meet with Barrett on the following Mon-
day as he was to be in the area at that time . On Monday,
November 22, in the presence of Nye, Walasek told Barrett
that be had failed to obtain corporate approval for the
repairs done to one of the vehicles and had failed to obtain
corporate approval for the painting of another vehicle, and
that they were going to pay him for 2 weeks although he was
not to work that period.
D. Conclusions as to Discharge of Barrett
That Respondent was opposed to the unionization of
its employees is manifested in remarks of Kinkead , Fitzger-
ald, and Walasek to drivers, and Barrett, in July, August,
and October, 1971; Respondent knew of their desire to have
the Union represent them from their remarks at meetings
with supervisors in July and August. Kinkead also testified
that Barrett told him that he was the one responsible for the
drivers organizing . The issue is whether the reason that
prompted Barrett's discharge was certain derelictions in his
duties or whether these are used as a pretext covering his
union activities as Respondent 's motivation.
The specific items or forms that Barrett allegedly had
not forwarded to the regional office were not produced in
evidence nor were they identified in other than general
terms . Apparently, there are no specific dates that they are
due. There is no showing as to how late the forms were, what
they involved, or their significance . The area manager and
his administrative assistant share in the responsibility for
the area's paper work ; and in fact, it would seem that their
responsibility in this regard would be greater than that of a
maintenance man. Yet , it was not until Grimm's call that
Walasek took action on the delinquent forms . Under the
circumstances , I find that the reason that precipitated
Barrett's discharge-the failure to submit some forms to
Respondent's regional office-is lacking in substance. The
other derelictions in duty by Barrett were included by Re-
spondent as contributing factors.
Following the close of the hearing on March 9, 1972,
the General Counsel moved to reopen the hearing for newly
discovered evidence based on information furnished by
Walasek who had been terminated by Respondent on April
3, 1972 , partly because of the way he had handled the termi-
nation of several employees , including Barrett . A high de-
gree of acrimony accompanied the termination of Walasek
by Respondent , and I find that his desire to retaliate against
Respondent for his discharge is a motivating factor for his
testimony in the reopened hearing.
He testified that Barrett committed the acts com-
plained of and set forth in his testimony earlier in the hear-
ing, but that he had been instructed by three of his superiors,
Regional Director Kinkead, Vice President of Operations
Fitzgerald , and Respondent 's President Richard Irwin, on
different occasions , that Barrett, as the central figure in the
union activities , was to be eliminated. But, Walasek showed
a marked propensity for evasiveness and lack of candor in
his testimony ; due to this and the highly charged circum-
stances of his own discharge and his obvious desire to retal-
iate against Respondent, I cannot credit his testimony
regarding these alleged instructions . On the other hand,
however, and in view of conversations that Fitzgerald, Kin-
kead , and Walasek had with employees showing concern
and opposition regarding the Union, it is certain that super-
vision had similar and unrestrained conversations among
themselves about the union activities . Walasek's testimony
reveals at least that from these conversations he concluded
that Barrett was a persona non grata or "a sour apple" in the
basket in the eyes of his superiors and one that they would
like to see "out of the basket ." Thus , as he testified, he had
a "strong feeling that I was, you know , to terminate Arthur
Barrett ." But Walasek received a discharge rather than ap-
preciation . I find that Walasek discharged Barrett because
of his union activities and that the reasons assigned therefor
were pretexts.
E. The Discharge of Alphonse Loera-Rubalcava
The entire testimony regarding the discharge of Loera-
Rubalcava is contained in the testimony of Area Manager
Walasek when he was called as the General Counsel's wit-
ness in the reopened hearing.
FOTOMAT CORPORATION
In January 1972, Loera-Rubalcava missed 2 weeks of
work due to a shoulder injury. Walasek called Respondent's
regional office to inquire as to the conditions for a medical
leave of absence for him. Walasek testified that he was told
by Regional Supervisor Richard Nye that the only proce-
dures for this situation was voluntary resignation or termi-
nation for cause; that no other condition of employment
existed, that therefore Rubalcava should be discharged for
not giving adequate medical information concerning his
absence and for not showing up for work.
When Rubalcava came in after his absence, Walasek
told him that he was discharged for not giving enough infor-
mation concerning his absence. However, that day informa-
tion concerning this matter reached Respondent's attorney,
who questioned the grounds for the discharge; and Rubal-
cava was reinstated the following day, apparently with no
loss of wages.
The evidence is scant as to just what Loera-
Rubalcava's situation was-the nature of his injury, wheth-
er it incapacitated him from performing his duties, whether
he had medical attention, whether he just did not show up
for 2 weeks. However, the General Counsel's contention
that Loera-Rubalcava's discharge was discriminatorily mo-
tivated rests on the testimony of Walasek regarding motiva-
tion. Walasek testified in the reopened hearing that he was
instructed to get rid of any employee that was involved in
the union activity and was creating problems, but I have
previously found that I cannot credit these "instructions."
If he had such instructions, he did not seek to obtain Loera-
Rubalcava's discharge because of his absence. When Wala-
sek called the regional office on the matter, he did not
recommend or broach the subject of discharge of Loera-
Rubalcava. The decision on the matter was made in the
regional office. I find that the evidence is insufficient to find
that the discharge of Loera-Rubalcava was because of his
union activities.
CONCLUSIONS OF LAW
1. By discharging Arthur J. Barrett on November 22,
1971, because of his support of the Union, Respondent has
engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. Respondent has engaged in no violation of the Act
by its discharge of Alphonse Loera-Rubalcava nor has it
engaged in illegal interrogation, promises, or threats to em-
ployees.
REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which is necessary to effectuate the policies of the Act.
I shall recommend that Respondent offer to Arthur J.
Barrett immediate and full reinstatement , with backpay
computed on a quarterly basis, plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Company, 138
737
NLRB 716, from date of discharge to date reinstatement is
offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 3
Fotomat Corporation, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Warehousemen, Mail Order
and Retail Employee Local Union 853, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Arthur J. Barrett immediate and full rein-
statement to his former job or, if it no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make him
whole for any lost earnings in an amount set forth in the
section of the Trial Examiner's Decision entitled "Reme-
dy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards , person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its place of business in San Leandro, Califor-
nia, copies of the attached notice marked "Appendix ."4
Copies of the notice on forms provided by the Regional
Director for Region 20, after being duly signed by an au-
thorized representative of the Respondent, shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
3 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
4 In the event that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of this Order, what steps the Respondent IT Is ALSO ORDERED that the complaint be dismissed inso-
has taken to comply herewith .5 far as it alleges violations of the Act not specifically found.
5 In the event that this recommended Order is adopted by the Board after the Regional Director for Region 20, in writing, within 20 days from the date
exceptions have been filed , this provision shall be modified to read. "Notify of this Order, what steps the Respondent has taken to comply herewith."