Hapsco, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 5, 1972196 N.L.R.B. 936 (N.L.R.B. 1972) Copy Citation 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heating-Air Conditioning Plumbing Supply Co., d/b/a within 3 days after the revised tally of ballots has been Hapsco, Inc. and Chauffeurs, Teamsters & Helpers furnished, he shall issue the appropriate certification Local 150, International Brotherhood of Teamsters , pursuant to Section 102.69(g) of the Board's Rules Chauffeurs , Warehousemen & Helpers of America . and Regulations, Series 8, as amended. Cases 20-CA-6796 , 20-RM-1386, and 20-RC- 9986 May 5, 1972 DECISION, ORDER, AND DIRECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 9, 1972, Trial Examiner Herman Marx issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed a brief. 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 Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order, and to direct that the chal- lenged ballot of Timothy J. Palmer be opened and counted. 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 Trial Examiner and hereby orders that Heating-Air Conditioning Plumbing Supply Co., d/b/a Hapsco, Inc., Sacramento, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain representatives for the purposes of collective bargaining among certain employees of Heating-Air Conditioning Plumbing Supply Co., d/b/a Hapsco, Inc., Sacramento, California, in the unit found appropriate in Cases 20-RM-1386 and 20-RC-9986, the Regional Director for Region 20 shall, at a time and place to be determined by him, open and count the ballot of Timothy J. Palmer and thereafter prepare and cause to be served on the par- ties a revised tally of ballots, including therein the count of said ballot, upon the basis of which, if no objection to such revised tally is filed by any party 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE HERMAN MARX, Trial Examiner: On May 19, 1971, pur- suant to a stipulation for a "consent election" in Cases 20-RC-9986 and 20-RM-1386 between Heating-Air Con- ditioning Plumbing Supply Co., d/b/a Hapsco, Inc. (herein the Company or Respondent) and a labor organization (herein Local 150 or the Union),' the National Labor Rela- tions Board (herein the Board) conducted a representation election among employees of the Company in an appropri- ate bargaining unit, with the result that of the three ballots cast, one was cast for the Union and one against it, and a ballot cast by an individual named Timothy J. Palmer was challenged by the Company on the asserted basis that he had been terminated prior to the election. On June 4, 1971, the Union initiated Cases 20-CA-6796 by filing an unfair labor practice charge against the Compa- ny, alleging that Palmer had been discriminatorily dis- charged in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 (herein the Act). Following an investigation, the Regional Director for Region 20, on behalf of the Board's General Counsel, issued a complaint alleging that the Company had violated Section 8(a)(l) of the Act by interrogating employees concerning their union activities or sympathies, and by making prom- ises of benefits to employees to induce them to abandon their support of the Union, and had discriminatorily dis- charged Palmer in violation of Section 8(a)(1) and (3) of the Act. On the same date, the Regional Director issued a "Sup- plemental Report" on the challenged ballot, stating, inter alia, that the challenge and the unfair practice allegations of the complaint "involved substantial and material issues of fact which constitute a single, overall controversy, and directing that a hearing be held on the issues raised by the challenge, and that such hearing be consolidated with one to be held before a duly designated Trial Examiner in Case 20-CA-6796.3 The Respondent has filed an answer denying, in sub- stance, that it committed the unfair labor practices imputed to it. 1 As used herein, the designations "Local 150" and "the Union" refer to a labor organization named Chauffeurs, Teamsters and Helpers Local 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. 2 29 U.S.C. 158(a)(1) and (3). 3 The Regional Director's "Supplemental Report" rescinded a previously made "Report on Challenged Ballot," dated June 3, 1971, on the asserted ground that the investigation of the charge revealed facts not previously known to the Regional Director at the time of issuance of the "Report on Challenged Ballot." That report had contained a recommendation that the challenge be sustained. 196 NLRB No. 148 HAPSCO, INC. 937 A hearing in the consolidated proceedings was held be- fore me, as duly designated Trial Examiner, at Sacramento, California, on September 23, 1971. The Board's General Counsel and the Respondent appeared through respective counsel, and all parties were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses, and submit oral argument and brief 5,4 Upon the entire record, from my observation of the de- meanor of the witnesses, and having read and considered the briefs submitted to me since the hearing, I make the following: FINDINGS OF FACT 1. NATURE OF THE COMPANY 'S BUSINESS; JURISDICTION OF THE BOARD The Company is a California corporation ; maintains a place of business , including an office and a warehouse, at Sacramento , California , where it is engaged in the sale of heating and air-conditioning equipment at wholesale; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business operations dur- ing the year immediately preceding the issuance of the com- plaint , the Company purchased goods valued in excess of $50,000 directly from suppliers located outside the State of California. By reason of such purchases, it is, and has been at all material times, engaged in interstate commerce, and in operations affecting such commerce , within the meaning of Section 2(6) and (7) of the Act. Accordingly , the Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local 150 is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company's labor force normally numbers some 9 or 10 individuals, including sales and clerical personnel (not involved in this proceeding), a truckdriver and 2 warehouse employees. The alleged discriminatee named in the com- plaint, Timothy J. Palmer, was the Company's truckdriver between December 1, 1970, the date he was hired, and his discharge on April 15, 1971, under circumstances to be de- scribed later. The two warehousemen during Palmer's em- ployment were Steven McKelvey and an individual variously identified in the record as `Loren Bacardy," "Mc- Carty," and "Macardy" (and referred to below as "Mc- Carty" for convenience of identification). McKelvey entered the Company's employ in or about September 1967, working as a truckdriver until December 1967 when he left to enter military service. Following its completion, he reentered the Company's employ in March 1971. Palmer had by then been its truckdriver for several months, and upon McKelvey's return, the latter was as- signed to warehouse duties. McCarty has been in the Copies of the charge, the complaint, the Regional Director's "Report on Challenged Ballot ," his "Supplemental Report on Challenged Ballot," his order of consolidation, and a notice of hearing in the consolidated proceed- ings have been duly served on the Respondent. Copies of the "Report on Challenged Ballot," "Supplemental Report," consolidation order, and notice of hearing have also been duly served on the Union. Respondent's employ for some 6 or 7 years, and during the period of Palmer s employment, divided his time between the warehouse and duties in the Respondent's office. The Company's operations are under the management and direction of two of its corporate officers, Dave eagle, its secretary and treasurer, and Bob Beamer, its presi- dents On or about April 1, 1971,6 McKelvey and Palmer tele- phoned Local 150 and requested that it send a representa- tive to meet with them with a view of their joining the organization. The details of such a meeting are not spelled out in the record, but, as Palmer testified, he and McKelvey "signed the papers to try to go union," or, in other words, in some written form, signified an interest in having the Union serve as their bargaining representative. As is evident from the record as a whole, this occurred in or about the early part of April. On April 8, the Union sent at telegram to the Company stating, in substance, that the Company's driver and ware- house employees had authorized the Union to serve as their collective-bargaining representative, and requesting a meet- ing with the Company. On April 14, the Company filed a petition (Case 20-RM- 1386) with the Board's Region 20, seeking a representation election among the employees in a bargaining unit defined substantially as the Company's "drivers and warehouse- men." On April 15, the Company discharged Palmer and re- placed him as driver with McKelvey. With that replace- ment, McCarty was assigned full time to the warehouse, where he has since worked on that basis. The Company's petition, and one seeking certification filed by the Union with Region 20 on April 19 (Case 20- RC-9986), led to an agreement between the Union and Company for a "consent election" among employees in the relevant unit. The election was held on May 19, and three ballots were cast, including one by Palmer, notwithstanding his prior discharge. (As is evident, the other two were cast by McKelvey and McCarty.) Of the three ballots, one was cast for the Union, and one against it, and the third, Palmer's, was challenged on the ground that he was no longer an employee of the Company. The validity of the challenge hinges on a determination whether the discharge was unlawful. Findings on that issue will be made at a later point following a resolution of the General Counsel' s claim that the Company unlawfully in- terrogated employees regarding their union activities or sympathies and offered them benefits to induce them to abandon support of the Union. B. The Alleged Interrogation and Promises of Benefits On April 9, the day following receipt of the Union's telegraphic claim of representation, Seagle and Beamer summoned Palmer to their office, told him that they wished to discuss the Union with him, referred to a "hospitaliza- tion" and "profit-sharing" program (not elaborated in the record) that the Company has, and asked him why he and McKelvey wished to join the Union. Palmer, whose salary was $400 a month, replied, in substance, that he and Mc- Kelvey "couldn't live' on what they were being paid, had insufficient time for lunch, and were working excessive time. Seagle then offered Palmer an increase of $100 in his monthly salary, and told him that he would be given "fast 5 As is evident, Seagle and Beamer are , and have been at all material times, supervisors within the meaning of Sec. 2(11) of the Act. Unless otherwise indicated , all dates set forth below occurred in 1971. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advancement," and would not have to work during his lunch period or before 8 a.m. or after 5 p.m . Palmer said "no" to the offer, "because I wanted to see how the teamster thing (union representation) worked out."7 Seagle did not expressly condition the offer upon Palmer's abandonment of the Union, but it is evident from Palmer's reply that he read such a condition into the offer. In any case, I am persuaded , and find , that the underlying purpose of the offer was to induce Palmer to abandon his support of the Union. Seagle and Beamer had a conversation in much the same vein on the same day with McKelvey , seeking him out for that purpose while he was at work in the warehouse .8 Seaggle asked McKelvey whey he "want[ed] to go union ," and 1^Ic- Kelvey replied that they" (the Union) offered him "more benefits ." Seagle then "brought up" the Company 's "hospi- talization" and "profit-sharing" program , and McKelvey, whose monthly salary , until that pay period , had been $460 (as reflected in his payroll record in evidence ), replied, in substance , that he was aware of such benefits , but that his salary was insufficient to cover his family's living costs. Seagle then said that if McKelvey had asked for ` 6 bills" (in other words , an increase in his salary to $600 a month) the Company would have given it to him; and inquired whether there was any way in which the Company could "change". McKelvey's attitude concerning union represent- ation . McKelvey replied in the negative. Seagle 's inquiry, in the context of his prior assurance to 7 Findings regarding the conversation between Seagle and Beamer and Palmer are based on Palmer's testimony. I do not credit denials by Seagle and Beamer that either asked Palmer how he felt about the Union, or made him any offers of benefit. Beamer tells us little of what was said, claiming that he was on the telephone most of the time while Palmer was in the office: In substance, the sum of Beamer's version is that he "explained to Tim (Palmer) the functions of our business, the wages." Why Beamer would point all this out to Palmer did not appear on Beamer 's direct examination until almost its end when, in response to a question by the Trial Examiner , Beamer conceded that he and Seagle told Palmer that "we'd like to talk to you about this union situation." Seagle pictures himself as calling Palmer to the office to outline the Company's benefits, and as describing them to Palmer, but, as in Beamer 's case, Seagle's account of what he said, given in response to his direct examination by the Respondent 's counsel , contains no indication that the discussion involved the subject of unionization; and it was only after the close of his direct examination by the Respondent's counsel that Seagle testified, in response to a question by the Trial Examiner, that he mentioned the Union to Palmer, stating that he told Palmer that the management understood "that the union is trying to organize our company." The sum of the matter is that both Seagle and Beamer appeared to me to be lacking in candor, and I am unable to regard their accounts of their conversation with Palmer, as well as of a somewhat similar one they had with McKelvey on the same day, as a reliable basis for findings as to what was said on either occasion. I am convinced that Seagle's and Beamer's underlying purpose in each conversation was to ascertain why the employee in question desired union representation, and to attempt to turn him against it; and I have made corresponding findings regarding details of both conversations. 8 Seagle and Beamer also had some discussion that day with McCarty on the subject of unionization, but McCarty did not testify, and there is nothing of substance regarding the matter in the record beyond a statement by Seagle that he and Beamer spoke to McCarty, "too"-the context of that testimony conveying an intimation that the conversation was "basically" the same as the discussions that day with McKelvy and Palmer. Although it is evident that the subject of unionization was at the bottom of the conversation with McCarty, the record is insufficient to spell out details or the legality of what Seagle and Beamer said to McCarty, and I make no findings in that regard. 9 Findings as to the discussion are based on McKelvey's testimony. As previously indicated, Seagle and Beamer appeared to me to be lacking in candor in their versions of their conversation with Palmer, and I formed much the same impression of their accounts of their discussion with Mc- .Kelvey. In contrast, McKelvey impressed me as an objective and credible witness. It may be noted, in that regard, that he is no longer in the Company's employ, having left voluntarily to resume his schooling. McKelvey that the Company would, upon his request, have increased his wages to $600 a month, amounted, in my dggment, to an intimated offer of such an increase if Mc- telvey would "change" his attitude toward union repre- sentation or, in other words, if he would abandon support of the Union. I find that the Company interfered with, restrained, and coerced employees in the exercise of rights guaranteed them b Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act, as a result of each of the following: (1) the inquiry of Palmer as to the reason why he and McKelvey wished to join the Union; (2) the offer of a wage increase to Palmer, and the promise made him that he would have "fast advancement', and would not be required to work during his lunch period, or before 8 a.m. or after 5 p.m.; (3) the inquiry of McKelvey as to why he "want[ed] to go union"; and (4) the intimation to McKelvey that he would be given a wage increase if he withheld his support from the Union. C. The Discharge The Respondent makes no claim that Palmer was dis- charged because of any deficiency in his work-in fact, his performance was "good ," as Seagle testified. What it con- tends, through testimony by Seagle and Beamer, is that Palmer was terminated because McKelvey performed his warehouse duties "very badly" and thus, so the claim goes, because of McKelvey 's deficiencies , and since he had been "excellent" as a truckdriver in his prior employment with the Company , and had seniority over Palmer, the manage- ment decided to discharge Palmer and replace him as truck- driver with McKelvey . The decision , according to Seagle and Beamer , was made on April 5 before either had any knowledge of any interest in unionization by any of the employees , and was to become effective , together with a "cost of living" increase of $25 in McKelvey 's monthly salary on April 15, the end of the current semimonthly pay period. That the Respondent should discharge Palmer , who per- formed his work well, because of shortcomings in Mc- Kelvey's work is on its face something of an oddity, and the credibility of the claim is not , in my view, enhanced byy Seagle's generalization that McKelvey had been an "excel- lent' driver in his prior employment , for McKelvey had held the driver's job some 3 years earlier, and had worked in that capacity only for about 3 or 4 months . The implausi- bility of the explanation of Palmer's discharge becomes even more apparent from , the terms in which Seagle de- scribes McKelvey's alleged shortcomings . According to Seagle , because of McKelvey , "[t]he material wasn 't gettingg put away. The warehouse was sloppy looking, garbage aIl around , orders were getting wrong, orders weren 't getting put away. A lot of mistakes . ' As an example of these, Seagle cited an instance when , according to him, McKelvey was so remiss in his duties as to leave "a thousand dollars worth of copper" in such a position (apparently outside the ware- house) over a weekend that any passerby could have taken it. One may doubt, to say the least , that the management would retain such an employee in preference to a good one such as Palmer admittedly was. Moreover, the credibility of both Seagle and Beamer is seriously impaired by their claim that the discharge decision was made on April 5, some 10 days before Palmer was told of his dismissal . The obvious point of that testimony, if accepted and harnessed to the management 's disclaimer of any knowledge of any union activity as of April 5, is that the discharge decision could not have had an antiunion HAPSCO, INC. purpose . But the claim that the decision was made on April 5 is plainly at odds with the course of conduct followed by Seagle and Beamer with Palmer on April 9, the day after they received the Union 's claim of representation . It is evi- dent even from Seagle 's and Beamer 's accounts of what took place in the April 9 discussion with Palmer that the Union's claim was at the bottom of the episode and that their purpose was to dissuade Palmer from supporting the Union . Seagle implied as much with testimony that upon receipt of the Union's telegram , the management decided to "tell the employees what we had to offer and what the company offers them ." Obviously , there would be no point in following such a course with Palmer if the management had already decided to discharge him, and, plainly, that conclusion is strongly reinforced by the credited evidence that during the course of the April 9 discussion, Seagle and Beamer interrogated Palmer as to his reason for desiring union membership and offered him benefits , including a wage increase , upon the implied condition that he abandon support of the Union . In short , I do not believe the Company's explanation of the discharge , nor its claim that the discharge decision was made on April 5; and find that it was made following the April 9 discussion , and with knowledge by the management'that Palmer favored repre- sentation by the Union. ° The motive for the discharge is fairly inferable from a sequence of events which began with the effort by Mc- Kelvey and Palmer , about the beginning of April, to secure union representation . This led to Local 150's telegram of April 8 , notifying the Company of its claim of representa- tion ; and on the very next day Seagle and Beamer , having learned from some source , or at least believing , that Mc- Kelvey and Palmer were adherents of the Union , attempted, through offers or promises of benefit , to turn them away from union representation. Against that background , and bearing in mind that Palm- er performed his work satisfactorily , and that the Company's explanation of his discharge lacks plausibility, I am convinced that there was a material link between the Company's filing, on April 14, of its petition for a Board- conducted election and Palmer 's discharge on the next day. The bargaining unit consisted of only three employees at the time the petition was filed , and, obviously , the unit's reduc- tion to two as a result of the dismissal of a known supporter of the Union would materially reduce its prospect for a majority , for only one vote against it in a two-man unit would be sufficient to bring about its electoral defeat. A conclusion that such a purpose was at the bottom of 10 The inference I draw from the April 9 discussion remains notwithstand- ing testimony by Seagle and the Company's accountant , W. E. Hillman, that the management informed Hillman on April 5 that McKelvey was to be given the wage increase and be assigned to driving as of April 15. Seagle claims that it was he who notified Hillman of the changes , but Hillman sounded a speculative note about the matter , stating that " it would either have been Mr. Seagle or Mr . Beamer ," and, at a later point , that he "believe [s]" that it was' Seagle . It is also noteworthy that a penciled entry in McKelvey 's payroll record purportedly made by Hillman under the date of "45-71" (although he was unable to say when he made the entry) notes that McKelvey was to receive the pay increase as of April 15, but makes no reference to his assign- ment to truckdriving ; and that the only such reference , consisting of' the phrase "now on tk .," appears on the line containing the payroll entries for McKelvey for April 15. Hillman, who says he made that entry, manifested evasiveness when queried about its date . Asked when he made it, he replied unresponsively " I was advised on the 5th [of April]"; then when the matter was pressed , he turned to assumption , stating that " I must have made it on the 5th" (although the entry is on the same line as the salary entries for April 15); and , finally , he stated that he could not remember when he made it. In sum, I do not credit the testimony that the management informed Hillman of McKelvey 's assignment to driving on April 5. 939 Palmer 's discharge is not negated by the fact that McKel- vey, also a known adherent of the Union , was retained, for the spring season , during which the discharge and the filing of the petition occurred , is not the Company 's "busiest period, and Palmer's replacement with McKelvey , who had had some experience as a driver , coupled with McCarty's assignment full time to the warehouse , would be sufficient to meet the Company's need for trucking and warehousing personnel at least until the summer months, as was in fact the case ,' I while, at the same time , Palmer's discharge would materially reduce the Union 's chance of winning the elec- tion in the remaining two-man unit. Upon consideration of the full record , I am convinced, and find, that such a reduction was the underlying reason for Palmer 's dismissal . Thus I find that by discharging Palmer , the Company discriminated against him in viola- tion of Section 8(a)(3) of the Act, and interfered with,* re- strained , and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act , thereby violating Section 8 (a)(1) of the statute. Finally, as the discharge violated the Act, I find that Palmer was eligible to vote in the election as an employee of the Company , and shall thus recommend below that the Board overrule the challenge to his ballot and direct that the ballot be counted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding I make the following: CONCLUSIONS OF LAW 1. The Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Local 150 is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Timothy J. Palmer .as found above , the Company has engaged in, 'and is en aging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with , restraining, and coercing employ- ees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has en gaged in unfair labor practices with the meaning of Section $(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and desist from its unfair labor practices, and take certain affirmative ac- tions designed to effectuate the policies of the Act. In view " Following Palmer's discharge, McKelvey and McCarty were the only employees engaged in driving or warehouse work until the summer months when McCarty's son was employed on a part-time basis in the warehouse, as had been done "for years" previously, according to Seagle. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the nature and extent of the unfair labor practices com- mitted, and in order to make effective the interdependent. guarantees of Section 7 of the Act, I shall recommend an. order below which will in effect require the Respondent to refrain in the future from abridging any of the rights guar- anteed employees by said Section 7.12 Having found that the Company discriminatorily dis- charged Timothy J. Palmer on April 15, 1971, in violation of Section 8(a)(1) and (3) of the Act, I shall recommend below that the Company offer him immediate and full rein- statement to his former job or, if such job no longer exists, to a substantially equivalent one, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his said discharge from the date of such discharge to the date on which he is offered reinstatement, as aforesaid, together with interest thereon as provided below; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W. Wool= worth Company, 90 NLRB 289, and-include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER13 Heating-Air Conditioning Plumbing Supply Co., doing business as Hapsco, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging. membership of its employees in Chauf- feurs, Teamsters & Helpers Local 150, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging or, in any other. manner, discriminating against, any employee with respect to, such employee's hire, tenure of employment or any term or condition of employment. (b) Interrogating any employee concerning his interest or participation in any activity by, in, or with any labor organi- zation. (c) Offering or promising any wage increase or any other benefit to any employee for the purpose of influencing his attitude toward any labor organization or representation by any such organization. (d) In any other manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which, I find, will effectuate the policies of the Act: (a) Offer Timothy J. Palmer immediate and full rein- statement to his former job or, if that no longer exists, to a substantially equivalent one, without prejudice to his senior- ity and other rights and privileges, and make him whole as provided in section VI, above, entitled "The Remedy." (b) Preserve until compliance with any order for back-pay made by the National Labor Relations Board in this pro- ceeding is effectuated and make available to the said Board and its agents, for examination and copying, all payroll records, social security records, time-cards, and any other records relevant to a determination of the amount of back- pay due. (c) In the event Timothy J. Palmer is now serving in the Armed Forces of the United States, immediately notify him of his right to reinstatement upon application after his dis- charge from the Armed Forces in accordance with the Se- lective Service Act and the Universal Military Training and Service Act. (d) Post, in conspicuous places at the Company's place of business in Sacramento, California, including alp places there where. notices to employees are customarily posted, copies of the attached notice marked "Appendix." Copies of the said notice, to be furnished by the Regional Director for Region 20 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced, by any other material. 14 (e) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps Respondent has taken to comply therewith.15 IT IS FURTHER RECOMMENDED that the Board overrule the challenge to the ballot of Timothy J. Palmer and direct that the ballot be counted. 12 " ... a discriminatory discharge of any employee because of his union affiliation goes to the very heart of the Act" N.L.R.B. v. Entwistle Manufac- turing Co., 120 F.2d 532, 536 (C.A. 4). See also May Department Stores v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L.R. B.,.120 F.2d 641 (C.A.D.C.). 13 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and recommended order herein shall, as.pro- vided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board, become its findings , conclusions , and order , and all objections thereto shall be deemed waived for all purposes. 14 In the event that the Board's Order is enforced by a Judgment of the 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." 15 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply therewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National La- bor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activi- ties. WE WILL NOT discharge or otherwise discriminate HAPSCO, INC. against any employee because such employee exercised any of such rights.% , WILL NOT interrogate any employee about his in- terest or participation in any activity by, in or with any union. WE WILL NOT offer or promise any employee any wage increase in order to inf luence his attitude toward any union or representation by any union. The National Labor Relations Board has found that we discriminated against Timothy J. Palmer by dis- charging him, and has ordered us to offer him imme- diate reinstatement to his former job, and to reimburse him for any loss of pay he may have suffered because of our discrimination against him , together with inter- est as provided in the Board's Order. WE WILL comply with the Board's Order. HEATING-AIR CONDITIONING PLUMBING SUPPLY CO., d/b/a HAPSCO, INC. Dated By 941 (Employer) (Representative) (Title) WE WILL immediate notify the said Timothy J. Palmer, if presently serving in the Armed Forces of the United States, of his right to reinstatement, upon application after his dis- charge from the Armed Forces, in accordance with the Se- lective 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 13050 Federal Building, 450 Gold- en Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. Copy with citationCopy as parenthetical citation