Hendrie and Bolthoff Co.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1196 (N.L.R.B. 1962)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hendrie and Bolthoff Company and Robert C. Quist . Case No.
07-CA -1164. September 28, 1962
DECISION AND ORDER
On June 29, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report herein, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
exceptions to the Intermediate Report and a supporting brief were
filed by the Respondent.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner except as modified herein.
THE REMEDY
We find, in agreement with the Trial Examiner, that the backpay
obligations of the Respondent with respect to the discriminatee shall
include the payment of interest at the rate of 6 percent. Such interest
shall be computed in the manner set forth in Isis Plumbing cC Pleating
Co.,138 NLRB 716.1
ORDER
The Board hereby adopts the Recommended Order of the Trial
Examiner as its Order, with the following modifications :
1. In paragraph 2(a), after the words, "Intermediate Report," add
the words, "as modified by this Decision and Order, for any loss of
pay he may have suffered by reason of the Respondent's discrimina-
tion against him."
2. In the notice, immediately below the signature, insert the follow-
ing sentence:
NoTE.-«'e will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with the
Selective Service Act after discharge from the Armed Forces.
'For the reasons set forth in his dissent in This Plumbing & Heating Co , supra,
Member Rodgers would not grant interest on backpay, and does not approve such an
award here.
138 NLRB No. 111.
HENDRIE AND BOLTHOFF COMPANY 1197
3. Also in the notice, insert the words "This notice must remain
posted for 60 consecutive days from the date of posting, . ..." for
the words "60 days from the date hereof, ...."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed and served February 5, 1962, the General Counsel of
the National Labor Relations Board caused a complaint and notice of hearing to
be issued and served upon Hendrie and Bolthoff Company, designated as Respond-
ent in this report. The complaint was issued March 19, 1962; therein Respondent
was charged with unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 61 Stat
136, 73 Stat. 519 Thereafter, through an answer duly filed, Respondent conceded
the complaint's jurisdictional allegations and certain factual allegations; commis-
sion of any unfair labor practice was, however, denied.
Pursuant to notice, a hearing with respect to the issues was held at Denver, Colo-
rado, on April 10, 1962, before Trial Examiner Maurice M. Miller. The General
Counsel and Respondent were represented by counsel. Each party was afforded
a full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues Before their testimonial presentation
began, representatives of the General Counsel moved to amend their complaint in
certain minor respects; without objection, the motion was granted. When the testi-
monial presentation was complete, counsel suggested their desire to file briefs.
These have been received; though submitted belatedly, they have been fully
considered.
Upon the entire testimonial record, documentary evidence received, and my ob-
servation of the witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Colorado corporation, which maintains its principal office and
places of business in Denver, Colorado; there it is engaged in the wholesale distri-
bution of automotive, industrial, and electrical supplies. In the course and conduct
of its business operations, Respondent purchases more than $50,000 worth of mer-
chandise annually, directly from points and places outside the State of Colorado,
for shipment to its places of business within the State.
Upon the complaint's jurisdictional allegations, which are conceded to be accurate,
I find that Respondent is now, and at all times material has been, an employer within
the meaning of Section 2(2) of the Act, engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6) and (7) of the Act, as
amended. With due regard for the jurisdictional standards which the Board
presently applies-see Siemons Mailing Service, 122 NLRB 81, and related cases-
I find assertion of the Board's jurisdiction in this case warranted and necessary to
effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America , Local Union No. 775, designated as the Union in this report , is a labor
organization within the meaning of Section 2(5) of the Act, as amended, which
admits Respondent 's employees to membership.
III. UNFAIR LABOR PRACTICES
A. Issues
The questions presented for determination in this case may be stated simply.
They are: (1) Did Respondent discharge one of its truckdrivers, Robert C. Quist,
on February 2, 1962, and refuse him reinstatement thereafter because he had joined
or assisted the Union, or engaged in other union activity for the purpose of collective
bargaining or other mutual aid or protection; (2) did Respondent's supervisory
personnel, beginning on February 1, and continuing on various dates thereafter,
unlawfully interrogate certain employees relative to their union activity, or threaten
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such employees with loss of employment or some other economic reprisal should
they become or remain union members or give support and assistance to that or-
ganization ? With respect to both questions , Respondent maintains the negative.
Determination of the issues posed , thereby, will require credibility resolutions,
primarily.
B. Facts
1. Background
a. Setting
Respondent 's principal office and place of business-designated the firm 's "main
store" for the record-is located at 1635 17th Street , Denver, Colorado; further, the
firm maintains a warehouse and garage , located on premises approximately three
or four blocks distant . Respondent operates several other Denver stores, none of
which, however, are closely involved with the present question . Throughout the
period with which this case is concerned , James Gunkle functioned as Respondent's
warehouse superintendent ; he was the responsible supervisor of the firm 's ware-
housemen , truckdrivers , pipe shop , machine shop , and garage workers. Norm Allen
served as the firm 's automotive division manager, with main store headquarters.
William Hale was the supervisor of Respondent 's automotive division . Counsel
for the firm concedes that each person designated-throughout the period with
which this case is concerned-functioned as Respondent 's agent , by virtue of his
status as a supervisor within the meaning of Section 2(11) of the Act , as amended.
Other company personnel , more or less involved in the various developments
which preceded Quist 's discharge , include Arthur Blinde , Respondent 's cashier;
Richard Acosta , the firm 's assistant cashier ; and Emmett Seaton, shipping clerk.
All of the men named were headquartered at Respondent 's main store.
b. Union organizational activity
On or about January 25, 1962, the Union began an organizational campaign
among Respondent 's employees , primarily through Quist and another worker. These
men undertook to circulate union authorization cards among the warehouse and
garage workers. Quist also solicited signatures at three of Respondent 's stores.
Shortly thereafter , a meeting of Respondent 's employees , scheduled to be held
under union auspices , was announced for 7 : 30 p.m . on February 1; printed cards
bearing such an announcement appear to have been distributed within the vicinity
of Respondent 's warehouse . (Testimony proffered by Foreman Gunkle, which I
credit in this connection , establishes that he found such a card in Respondent's
warehouse parking lot on February 1, during the afternoon .) Approximately 20
to 22 employees attended the meeting , which organizers for the local Joint Council
of Teamsters conducted . During the meeting, I find , Quist submitted 12 signed
union authorization cards.
2. The discharge of Quist
On February 1, shortly after his discovery of the Union 's meeting announcement,
Superintendent Gunkle accosted two of Respondent 's truckdrivers , Buscietta and
Rodriguez , with a query as to whether they planned to attend the meeting that
night. (While a witness , Gunkle conceded that he had asked Buscietta such a
question. He characterized his inquiry as casual , however, made in a friendly
"kidding" manner. ) While Buscietta could not recall whether Gunkle had par-
ticularized his reference to the union meeting, he testified credibly that the super-
intendent 's query was so understood . "We don't know," was the truckdriver 's reply.
On February 2, during the mid-afternoon , President Andrews of Respondent tele-
phoned Gunkle at the warehouse office . After a short exchange , which employees
present in the office did not overhear , the Superintendent left. Approximately 15
to 20 minutes later he returned , put some papers on his desk, and commented that
the men were trying to get union representation . Proceeding to his desk forthwith,
Gunkle took out a company "discontinuance" slip, typed certain entries, removed
the slip from his typewriter , and left One of Respondent 's employees testified,
credibly, that Quist 's name was seen on the slip.
Subsequently , Gunkle conversed with several drivers . Testimony proffered by
three drivers with respect to the substance of these conversations was partially denied.
For reasons noted subsequently in this report , however , their testimony is credited.
During a conversation with Buscietta shortly after 4 o'clock , conducted with truck-
driver Sidney Pederson present , Gunkle queried both as to whether they had attended
HENDRIE AND BOLTHOFF COMPANY 1199
the union meeting. Upon receiving an affirmative answer from Buscietta, Respond-
ent's superintendent professed his disquiet over the union activity; he reported that
"they" were quite disturbed about the situation up at Respondent's main store.
Further, Gunkle declared that "because of the union activities" he would have to
terminate someone that night. Buscietta observed a payroll check in the superintend-
ent's pocket. Thereafter-while Gunkle, Buscietta, and Pederson were leaving Re-
spondent's washroom-the superintendent observed further that if the Union were
brought in, working conditions would probably become more difficult; reference
was made by him to the likely possibility of a layoff, comparable to layoffs which had
occurred at "Mine and Smelter," Respondent's competitive supply house, subsequent
to its unionization. Gunkle observed that "Mine and Smelter" had had 15 truck-
drivers when union organization began, but now had only 5, because customers
were requested to pick up their own purchases.
Shortly after 4:15, Gunkle asked truckdriver Clarence Coverley whether he had
heard about "this union" business. Receiving an affirmative reply, Respondent's
superintendent observed that he had been up talking to President Andrews, who was
"pretty hot under the collar" about the situation. Gunkle then declared that he had
a check in his pocket for "Bob" Quist.
Later that afternoon, at 4:30 p.m. approximately, Gunkle advised Quist-who
had just brought his truck back-that he had some bad news. Queried, he declared,
I find, that he would have to let Quist go. When asked what the trouble was, Re-
spondent's superintendent declared, I find, that there had been some union talk,
and that he would have to lay off the truckdriver in a reduction of force. Quist
protested, pointing out that two other drivers had less seniority. Gunkle then
declared that Quist was being terminated because of a reduction in force and because
of "personal reasons" which had originated at Respondent's main store, no explana-
tion of his reference to "personal reasons" was proffered. Quist was then given his
check. He asked if his work had been satisfactory; Gunkle, I find, replied affirma-
tively. Quist then requested a recommendation, and was promised a "good" one.
(Gunkle testified that he had promised to give Quist a "dandy" recommendation; his
tone while giving this testimony was clearly calculated to suggest that sarcasm had
been manifested. For reasons noted elsewhere in this report, however, I find it
unnecessary to determine whether Gunkle's promise was really meant to be taken
at face value.) Quist accepted his check and departed. On February 5 he returned
to get his recommendation. Gunkle declared that Respondent gave no letters of
recommendation but would retain such a recommendation in Quist's record. He
promised that if anyone called, he would give Quist a good recommendation.
(During their conversation, Gunkle told Quist-for the first time, I find-that
he had been discharged because of a "mistake" he had made in handling a check
received from a company customer for a small c.o.d. delivery. Respondent presently
contends, however, that the dischargee's misbehavior with respect to the check in
question triggered his discharge. Because of this contention, proffered in Respond-
ent's behalf, Quist's conduct relative to the check matter-together with my deter-
mination regarding its claimed connection with his termination-will be detailed
elsewhere in this report.)
So far as appears, Quist had no further contact with representatives of the Re-
spondent prior to the present hearing.
3. Subsequent developments
Sometime during the period now under consideration, the Union filed a representa-
tion petition with the Board's Regional Office. A consent-election agreement was
executed; the scheduled election was set for March 16. (The result of the election
was not reported for the record in this case. I make no findings with respect to the
matter.) Before the election, discussion of the Union's campaign appears to have
involved Respondent's supervisory personnel on several occasions.
Somewhere around February 5 or 6, Superintendent Gunkle, I find, observed that
union representation might be good for Respondent's employees. Seven or eight
days before the scheduled election, however, Respondent's superintendent told
Pederson, substantially, that he hated to consider the possibility of unionization for
the sake of the men, since there might be layoffs. Queried as to how Respondent
might lay men off without hurting its own business, Gunkle declared that the firm
could possibly cut down delivery service. Early on the morning of March 16,
Gunkle advised three company workers, prior to their vote, that Respondent might
install time clocks if the Union won representative status.
On February 5, William Hale, a supervisor within Respondent's automotive
division, questioned Michael Babb, order filler and shelf stocker at Respondent's
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
main store, as to whether he had attended evening union meetings; he received
a negative reply. During a February 14 conversation with Charles Von Stein,
another order picker, Hale was asked to explain the reason for the "big rush" with
respect to some job. He replied, "You union men are going out on strike," coupling
this declaration with a comment that he could tell a union man 20 miles off. Record
evidence establishes that Hale, approximately 1 week later, announced loudly betore
several employees-during a smoke or coffee break-that if the Union got in,
Respondent would install timeclocks and require workers to punch in and out
(While a witness, Hale conceded that he "might" have been responsible for the
various questions and statements attributed to him; he contended, however, that his
questions and statements were made casually or facetiously, and that they were
not intended seriously.)
Shortly before the scheduled hearing in this case, on April 6, Hale-knowing that
Von Stein would be called to testify on Tuesday, the 10th of the month-observed,
"Charley, you and me will be walking the streets side by side after Tuesday."
While this remark does not appear to have been explained, Von Stein's testimony
suggests that he may have taken it seriously.
On or about March 13, employee Babb conferred with Norm Allen, then
Respondent's automotive division manager, relative to certain prior disagreements
between himself and Supervisor Hale; Allen, I find, had summoned Babb to the
conference During their conversation, however, Allen digressed to comment about
the Union's campaign. (Allen categorically denied any conversation with Babb
regarding the Union or union activity. Upon the entire record, and from my
observation of the demeanor of the witnesses, Allen's denials did not impress me
as credible. Babb's version of their talk, in this regard, has been credited.) Declar-
ing that "we" didn't need the Union as a worker's representative, Allen observed
that Respondent had always given employees, with a year's service, one or two,
extra vacation days whenever a request for such allowance was made He declared
that Respondent would be unable to continue this practice under a union contract;
should such a contract call for 1 week's vacation, that would be all the men would
receive. The record is silent with respect to Babb's reply.
C. Conclusion
1. The discharge
With matters in this posture, Board determination would clearly be warranted
that Quist was terminated to discourage the Union's organizational campaign.
Credible testimony with respect to his prominent role as a union proselytizer
during that campaign has not been challenged. And, despite the paucity of direct
testimony reasonably calculated to sustain a determination that Respondent's man-
agement was cognizant of Quist's conduct, circumstantial evidence worthy of credit
has been provided which plainly calls for the necessary conclusion. Specifically,
reference is made to the testimony regarding: (1) Gunkle's conceded knowledge with
respect to the Union's February 1 'meeting, (2) his comment about the Union's
organizational campaign, just prior to his preparation of the dischargee's "discon-
tinuance" slip; (3) his subsequent declaration, during a conversation with two truck-
drivers, that various persons at Respondent's main store were quite disturbed about
the union situation and that "because of the union activities" someone would be
terminated, (4) his reference to the fact that he had Quist's termination check in his
pocket, coupled with his declaration that Respondent's president was "pretty hot
under the collar" about the union situation; and (5) the superintendent's reference to
"union talk" during his February 2 conversation with the dischargee, which he-
coupled with the cryptic comment that "personal reasons" made manifest at the
firm's main store had contributed to Quist's termination Considered as a whole,
testimony of such tenor would certainly call for a determination that Quist's dis-
charge derived from Respondent's desire to discourage union membership, regard-
less of the General Counsel's failure to provide direct proof that the firm's manage-
ment knew about Quist's personal role in that organization's campaign.
(Gunkle-though he conceded friendly, casual interrogation of Buscietta with re-
spect to his presence at the February 1 union meeting-denied making various con-
versational references to Quist's prospective termination within a context of discussion
dealing with management's reaction to the prospect of union organization. These
denials-despite their reiteration with patent conviction-lack persuasive power.
Buscietta, Pederson, Howe, and Coverley testified in a straightforward manner which,
carried conviction. The suggestion has been advanced that their testimony-
regardless of its sincerity-derived from some sort of mistaken recollection, condi-
tioned by the comments of Quist subsequent to his discharge and retrospectively
HENDRIE AND BOLTHOFF COMPANY 1201
buttressed by their recollection of the February 1 union meeting and Gunkle's
brief references to the union campaign thereafter. Such a suggestion-presented for
consideration by learned counsel-cannot be dismissed cavalierly. With due regard
for the record as a whole, however, the suggestion must be rejected. The General
Counsel's witnesses testified without equivocation; cross-examination failed to per-
suade them to retract or modify their testimony. The fact that Buscietta, Pederson,
Howe, and Coverley testified while still in Respondent's employ, further, lends special
credence to their testimonial recitals. And commonsense, likewise, suggests the
remoteness of any possibility that each of these four witnesses could have been
separately led into parallel error with respect to the verbal context within which
certain comments were made by their supervisor, during three distinct conversa-
tions. Gunkle's denials-on the other hand-were primarily couched in terms of
his failure to recall the statements attributed to him. Further, testimony proffered
by Respondent's garage mechanic-purportedly to corroborate Gunkle's denials of
some reference to "union talk" during his February 2 discussion with Quist-reveals
that he did not hear their complete conversation. My review of the entire record,
thereafter, together with my observation of the witnesses, has convinced me that
honest failure of recollection may more reasonably be attributed to Gunkle than
to his subordinates.)
Prima facie, therefore, justification can be found for a Board determination that
the General Counsel's contention, with respect to the Respondent's motivation for
the challenged dismissal, has been sustained. Such is my conclusion. Compare
Gardner Construction Company, 130 NLRB 1481, enfd. 296 F. 2d 146 (C.A. 10),
in this connection.
Respondent's, presentation, calculated to justify Board, rejection of the General
Counsel's theory, and to prove that Quist's discharge was effectuated for other rea-
sons, fails to persuade.
Respondent contends that Quist was actually dismissed because he mishandled
a check received by him for delivery to the company cashier; Gunkle's testimony
was that the truckdriver's treatment of the check triggered his discharge, since it
capped a course of conduct which had previously led the superintendent to consider
his termination.
Record testimony reveals that Quist made a late afternoon c.o.d. delivery on
February 1, for which he was given an $11.51 check, made out to the Respondent
firm. However, he reached Respondent's garage too late to permit his delivery
of the check to the firm's cashier that afternoon. Therefore, I find, he retained
possession of the check, intending its delivery to the cashier at Respondent's main
store next morning. (No question has been raised with respect to the propriety
of Quist's decision to retain custody of the check under such circumstances; his
testimony, proffered without contradiction, would warrant a determination that
company drivers frequently returned from delivery assignments after the closing
of their cashier's office, and that they routinely retained custody of any checks then
in their possession for submission the following morning.) Early during the evening
of February 1, however, Quist-while on his way to the union meeting previously
noted-stopped off at a restaurant-tavern, designated as the Log Cabin Inn, to
have a few drinks. The truckdriver's testimony, which I credit in this connection,
reveals that he asked the bartender whether he would cash a "short" check, which
Quist had previously received from his father for services rendered. This was a
check for $6, drawn on the North Denver Bank. When he received an affirmative
reply, Quist reached into his billfold, took out a check which he endorsed, and gave
it to the bartender.
When the latter then requested Quist to write "Hendrie and Bolthoff" on the back
of the check, as part of his endorsement, the truckdriver did so without reflection
Almost immediately, however, he began to wonder about the reason for the bar-
tender's request; he then realized that he had mistakenly submitted the Company's
c o.d. check Calling for the return of Respondent's check, Quist scratched out his
endorsement and Respondent's name; he then submitted the check from his father
which he had really wished to cash, properly endorsed. This check was cashed,
pursuant to his request.
Early the next day, Quist turned Respondent's c o.d. check over to Richard Acosta,
the firm's assistant cashier. When doing so, I find he called the assistant cashier's
attention to the stricken endorsement, explaining the marks on the back of the check
as the result of a mistake. (Conflicting testimony has been presented with respect
to Acosta's reaction. Quist testified that the assistant cashier told him not to worry
about the matter. Acosta-though he conceded that Quist had called his attention
to the stricken matter-denied any comment calculated to reassure the driver Upon
about the matter Acosta-though he conceded that Quist had called his attention
of the matter has been made.) Later that morning, Acosta showed the check in
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question to his superior, Cashier Blinde, who promised to remember the matter.
The record is clear, however, that Quist was never told, prior to his termination, that
Respondent 's cashier , assistant cashier, or any other management representative
considered his treatment of the check a serious dereliction.
Considered as a whole, Respondent's presentation with respect to, (1) Quist's
submission of the check with his stricken signature, and (2) management's reac-
tion to the situation, fails to generate any genuine conviction that the testimony
of the General Counsel's witnesses-herein found credible-should be rejected as
mistaken. While Respondent, clearly, would have been privileged to consider any
worker's deliberate attempt to convert a company check-even one which the worker
failed to consummate because of presumptive second thoughts-as sufficient justi-
fication for a discharge, testimony presumably offered to show that the firm's decision
to discharge Quist was motivated by such considerations calls for rejection because
of its lack of certainty.
For example, Superintendent Gunkle testified-during direct examination-that
the decision to terminate Quist was his own decision, and that the decision had been
reached when he saw the company's check with the truckdriver's endorsement
stricken. According to Gunkle, Respondent's cashier had summoned him to the
Company's main office at 3:15 or 3:30 that afternoon to show him the check, and
he had determined to discharge Quist, after taking "one look" at the check, because:
I thought in my mind I was sure he had tried to cash one of the company
checks, and I had told him before that if anything else happened whatsoever
he was going to be discharged.
When cross-examined, however, the superintendent conceded that he could not
remember whether the cashier had shown him the check; responding directly to a
question as to whether the check had been shown him, Gunkle merely said, very
quietly, that he "believed" it had been shown. Blinde-when queried by the General
Counsel's representative as a rebuttal witness-conceded that he, likewise, could
not recall whether he had shown the check to the superintendent ; during his cross-
examination, Blinde revealed himself as willing to speculate that Assistant Cashier
Acosta might have been the one who showed Gunkle the check. (The testimony
proffered by Acosta, however, would clearly warrant an inference that his exhibition
of the check to Blinde, coupled with his report regarding Quist's comment about
its appearance, concluded his participation in the matter.)
Further, despite Blinde's testimony-during direct examination-that he had tele-
phoned Gunkle with a request that he visit Respondent's main store, to look at a
check which one of the firm's drivers had submitted, the cashier's prior affidavit-
proffered and received for the record without objection-contains no reference to
such conduct by him. While a witness, Blinde conceded that these developments
had taken place on payday, that he had had much to do that day, and that he could
not remember the events of the day in question too well. Queried in cross-examina-
tion as to whether he had, really, summoned Gunkle to tell him about the check,
Blinde merely said, "It runs in my mind that way now." Gunkle, himself, could not
recall the circumstances clearly; though he testified that Blinde telephoned him, his
testimony reveals that he was in Respondent's garage, and suggests that he "might"
have gotten Blinde's message secondhand, when he called the firm's warehouse.
Further, Respondent's claim-that Quist's treatment of the check led to his dis-
charge-fails to persuade, (1) because Gunkle's testimony, taken at face value, re-
veals his failure to give Quist a forthright explanation of the considerations which
purportedly motivated his dismissal, and (2) because the superintendent, thereby,
conceded his failure to give the truckdriver any chance to explain his conduct. Ac-
cording to Gunkle's direct testimony, Quist was merely handed his check with a
statement that, "this came from up above in the cage" meaning the cashier's office,
or, "this comes direct from the cage, and you should know what it is"; the superin-
tendent conceded that he made no effort to amplify his cryptic comment until the
following Monday, when the truckdriver's treatment of the check was first cited as
the reason for his termination. (During cross-examination, when confronted with
his prior affidavit made before a Board field examiner, Gunkle further conceded that
"maybe" he had not even mentioned the cashier's cage when Quist was given his
check.) Gunkle's declared reluctance to embarrass dischargees by comments about
the reason for their discharge within the hearing of their fellow workers, though
commendable, fails to explain his lack of candor with Quist during their February 2
conversation; while Respondent's garage mechanic, Foster, may have been within
hearing distance during part of that conversation, Gunkle could conceivably have
sought privacy for their talk-pursuant to his professed practice-during which
a candid statement of the purported reason for the truckdriver's discharge could
have been given. He made no effort to "take [Quist] alone," however. (Paren-
HENDRIE AND BOLTHOFF COMPANY 1203
thetically, note may be taken that Gunkle 's professed reluctance to make any public
declaration of the reason for a worker's discharge did not-according to his own
testimony-prevent him from voluntarily telling t1uscietta and Coverley, separately,
that Quist was being given his check because of "sothething" having to do with the
cashier's cage. ) Further, the superintendent 's testimony suggests that Quist's ex-
planation of the check 's treatment had been communicated to him-assuming it
was communicated at all-through Blinde, who had received it, in turn , from the
firm's assistant cashier. Though he was presumably aware, therefore, that no other
management representative had sought confirmation of the truckdriver 's reported
explanation directly, Gunkle's testimony would warrant a determination that he
had refrained from asking questions. Substantially, the superintendent's recital
reflects his readiness to base a discharge decision upon presumptions with respect
to Quist's purpose in endorsing the firm's c.o.d. check. Such conduct by a responsible
supervisor, concerned with the effectuation of a discharge, normally suggests that
justifications therefor subsequently provided reflect some pretext rather than the
real reason for a challenged dismissal.
Respondent also contends-through Gunkle specifically-that Quist's treatment
of the check capped a series of misdeeds; the suggestion has been made that Quist's
conduct with respect to the check, though perhaps not sufficient to justify discharge
standing alone, represented the straw which broke the camel's back. Such a con-
tention, however-even when considered without regard for credible evidence suffi-
cient to warrant its rejection-lacks persuasive power upon the present record. True,
that record does disclose Quist's concession that Gunkle had cautioned him-during
the previous June or July-against driving too fast across certain nearby railroad
tracks. During the previous October, likewise, Quist's truck had concededly been
damaged extensively when the truck's drive shaft broke while he was driving it
down a cobblestoned street near the railroad tracks; record testimony establishes
that Gunkle had considered Quist's negligence responsible for the damage, that he
had been taxed severely as a result, and that he had been warned about his vul-
nerability to discharge for any serious dereliction thereafter. Nevertheless, Quist
was permitted to remain a driver. (There is testimony in the present record, fur-
ther, that Gunkle once saw Quist jerk the wires off the spark plugs of another
driver's truck, presumably during horseplay. Quist conceded the predilection of
various drivers toward such horseplay, and further conceded his own victimization,
but denied responsibility for any conduct of the type cited. Gunkle did not fix
any time when the incident was supposed to have occurred; since his own testimony,
further, was that Quist had merely been warned to desist, I have not resolved their
testimonial conflict. The incident-should Gunkle's recital be credited-would add
little to Respondent's catalogue of Quist's predischarge driving derelictions, with
respect to which no substantial challenge has been noted.) During December 1961,
Superintendent Gunkle criticized Quist when he was ticketed for going straight
through in a local "turn-only" lane, while driving a company truck. Quist pleaded
guilty and paid a fine for this moving violation; Respondent, nevertheless, did not
suspend or discharge him, despite Gunkle's prior declaration, "The next time, that'll
be it," after his October accident. He was allowed to continue driving.
Within the General Counsel's brief, these three incidents are dismissed as
"nothing more nor less than what might befall any person" whose duties entailed
daily truckdriving. Such a characterization might well be considered to reflect too
casual a view. Upon the entire record, nevertheless, I am satisfied that Quist's
conduct as a truckdriver did not suggest any compelling ground for his discharge
because of supposedly accumulated misdeeds-despite Respondent's contention to
the contrary-until the Union's entry upon the scene. (Though Gunkle did testify-
with Shipping Clerk Seaton's corroboration-that he had been dissuaded from dis-
charging Quist, after the October accident, only by Seaton's plea for the driver's
retention to service Respondent's "busy season" delivery requirements, the super-
intendent's further testimony shows that Quist's next difficulty, the December
traffic law violation, did not lead to his termination.) During January 1962, Quist's
purported participatipn in a traffic violation, while engaged in the operation of a
private automobile outside of working hours, led to a formal proceeding which
conceivably could have resulted in the total revocation of his driver's license Re-
spondent's shipping clerk, Seaton, recalled a contemporaneous discussion with
Gunkle regarding Quist's situation; he characterized the substance of their discussion
as follows: "We was just kind of talking about it and of course hoped it didn't
happen " Ultimately, the formal proceeding noted resulted in Quist receiving a quali-
fied "red" probationary license. Still, he was not discharged. Upon such a record,
Respondent can hardly contend that Quist's prior derelictions, retrospectively viewed
662353-63-vol. 13 8-7 7
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during January of the current year, were really considered serious, even when
supplemented with a further , personal , record of traffic law difficulty.
Considered as a whole, therefore , Respondent 's testimonial presentation , calculated
to support its contention with respect to the reason for Quist's discharge , warrants
characterization as weak.
Elsewhere in this report the General Counsel 's presentation has been found forth-
right and credible ; Respondent 's presentation has failed to persuade me that the
General Counsel's witnesses may have been misled or sincerely mistaken . Rather, I
find that Respondent 's defense reflects present reliance upon a pretext for discharge,
derived from a fortuitous circumstance and designed to obscure the firm's real
motive for the challenged dismissal . And, since the General Counsel's presentation
has not been vitiated by credible testimony sufficient to warrant its rejection, I find-
consistently therewith-that Quist was terminated on February 2, 1962, to discourage
union membership by Respondent 's employees.
2. Interference , restraint , and coercion
Within a context of proclaimed company perturbation with respect to the Union's
campaign , and Quist 's contemporaneous discharge , Gunkle's interrogation of Bus-
cietta, Pederson , and Coverley regarding their knowledge and interest in the campaign
clearly warrants characterization as proscribed interference , restraint , and coercion.
Respondent 's superintendent , whose sincerity in this respect cannot be doubted,
characterized the several conversations during which such interrogation took place
as casual and friendly . Nevertheless-despite my willingness to concede that
Gunkle's interrogation of his subordinates , which he coupled with pessimistic ob-
servations regarding employment prospects should the Union win representative
status, may have been motivated by well -meant paternalism-the reasonable tendency
of such questions and comments to interfere with, restrain , and coerce employees
in the exercise of statutory rights cannot be denied.
Similar conclusions would seem to be justified , also, with respect to Gunkle's
various comments prior to the scheduled consent election within Respondent's
operation , since the firm 's employees were told ( 1) that unionization might result
in some layoffs because delivery service could be curtailed , and (2) that Respondent
might install time clocks for its workers if the Union won representative status.
Standing alone, the comment by Respondent 's superintendent about timeclocks
might well warrant dismissal as trivial , since any company decision to take such
action would not deprive employees of privileges or benefits legitimately enjoyed,
and would clearly be within the scope of management 's prerogative . However,
record testimony which has not been contradicted reveals that Gunkle mentioned
the possibility of such company action only in terms of possible reprisal should
the employees choose union representation ; under such circumstances , his comment
must be considered a threat , reasonably calculated to interfere with freedom of
choice by his subordinates during the scheduled vote.
With respect to Hale's conduct , however , two divergent conclusions seem war-
ranted . His February 5 interrogation of Michael Babb, regarding the latter 's attend-
ance at- evening union meetings , clearly calls for characterization as a sample of
conduct subject to statutory proscription . His February 14 comment to Von Stein,
however-to the effect that some job then underway would have to be handled as a
rush job because "you union men" were going to strike-persuasively conveys a sug-
gestion of friendly raillery; Hale's sheepish confession that he "might " have been
responsible for such a statement would seem to support my conclusion that the
comment was not seriously meant to disparage unionization or restrain a presump-
tive union supporter . Considered with due regard for its nonverbal context, I find
Hale's comment should not be treated as a statement reasonably calculated to restrain
or coerce his listener.
Hale's subsequent statement relative to the likelihood of timeclock installations
should the Union win representative status-like Gunkle's statement previously
noted-merits characterization as violative of the statute . Though presumably
voiced with good humor, the supervisor's declaration clearly reflected a suggestion
that Respondent might take such action by way of reprisal for any show of union
support; since the Company 's workers would normally consider their automotive divi-
sion supervisor a knowledgeable source of information with respect to company
policy, his comment , however casual , would be reasonably calculated to restrain
and coerce their judgment.
Similar conclusions do not appear to be warranted , however, with respect to Hale's
final comment to Von Stein , shortly before the scheduled hearing in this case, that
both of them would be "walking the streets side by side " after the hearing began;
HENDRIE AND BOLTHOFF COMPANY 1205
despite Von Stein 's testimony that Hale's remark seemed seriously made, the state-
ment's patently hyperbolic character warrants an inference that it was really face-
tious. No determination that it violated the statute would seem to be justified.
While Norm Allen, formerly manager of Respondent's automotive division,
and presently Respondent's secretary-treasurer, has been found responsible for a
comment to Michael Babb that Respondent would adhere strictly to any vacation
policy fixed by union contract, no determination that his remarks violated the statute
would, in my opinion, be warranted. Despite Allen's declaration that Respondent
routinely gave employees, with 1 year's service, one or two extra vacation days
upon request, no direct testimony with respect to the maintenance of such a company
policy can be found in the record. Though clearly calculated to influence Babb,
Allen's comment , I find , merely suggested that Respondent might be less generous
in permitting exceptions to a fixed vacation policy should that policy be embodied
in some union contract ; such a prophecy regarding a possible shift of managerial
discretion seems too vague and generalized to warrant agency prohibition as a threat
of reprisal for the exercise of rights statutorily guaranteed.
Upon the entire record, therefore, my conclusion that Respondent did interfere
with, restrain, and coerce employees in the exercise of Section 7 rights rests upon:
(1) Gunkle's conceded interrogation of several truckdrivers with respect to their
attendance at union meetings , and their knowledge of the Union 's campaign ; (2) his
February 2 declaration, previously noted, that "because of the union activities" he
would have to terminate someone; ( 3) his observation that union representation
would probably result in making working conditions more difficult, and might lead to
layoffs; (4) Supervisor Hale's interrogation of Michael Babb as to whether he had
attended evening union meetings ; and (5' ) comments by Gunkle and Hale that
Respondent might install timeclocks if the Union won representative status. With
respect to the General Counsel's further contentions, regarding other comments by
Supervisor Hale and Manager Allen, determinations adverse to Respondent cannot
be considered warranted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , since they occurred in
connection with the business operations described in section I, above , have a close,
intimate , and substantial relation to trade, traffic , and commerce among the States,
and, absent correction , would tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in
certain unfair labor practices , it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action,
including the posting of appropriate notices, designed to effectuate the policies of
the Act, as amended.
Specifically, it has been found that the firm-through its warehouse foreman-
discriminated with respect to the hire, job tenure , and terms of employment of
Robert C. Quist, by the effectuation of his discharge without legal justification , because
he assisted a labor organization and engaged in concerted activity for the purpose
of collective bargaining or other mutual aid and protection . Thereby, employees of
the Respondent enterprise, generally, were interfered with, restrained , and coerced
in the exercise of rights statutorily guaranteed. To effectuate the statutory objec-
tives, therefore , my recommendation will be that the Board order Respondent to
offer Quist immediate and full reinstatement to his former or substantially equiv-
alent position, without prejudice to his seniority or other rights and privileges. See
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, for a definition of the phrase "former or substantially equivalent posi-
tion" used in this report . Further, a recommendation will be made that Respondent
be ordered to make the dischargee whole for any loss of pay or other incidents of the
employment relationship which he may have suffered by reason of the discrimination
practiced against him.
The General Counsel requests that any Board order, with respect to the payment
of wages lost by Quist because of his termination, include a requirement that Re-
spondent pay interest at the rate of 6 percent per year on the quarterly amounts
found due, pursuant to the backpay formula which the Board presently employs.
Such a requirement would seem to be within the Board's power; this Agency possesses
power under Section 10(c) of the Act to require any person, found to have engaged
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in unfair labor practices , to take "such affirmative action including reinstatement of
employees with or without backpay" as will effectuate statutory policies.
The Board has already been requested , in several cases, to make such an inter-
est requirement part of its backpay order . See Isis Plumbing d Heating Co., Case
No. 21-CA-4579 [138 NLRB 716] (Interniediate Report, April 11, 1962), in
which my concurrence with such a request has been noted. An interest requirement,
in my judgment, would not be punitive; to the contrary, it would provide remedial
reparation for the damage suffered by the dischargee. Discrimination deprived
him of employment. Thereby he was deprived of sums which he would have
received as wages; Respondent, correlatively, gained the opportunity to use such
money for its own purposes. Payment of interest at the moderate rate proposed-
which appears to be a conventional rate under the circumstances-would merely
constitute Quist's equitable reimbursement for Respondent's use of money denied
him through discrimination. Determination of his right to such reimbursement
would comport with conventional conceptions, reflected in the statute law of many
jurisdictions, that he who owes money to another should be required to pay interest
thereon at a given rate-customarily provided by statute-where the parties have
no other interest arrangement. The presently unliquidated character of the Re-
spondent's backpay obligation should not be considered sufficient to vitiate the
propriety of the interest requirement; Respondent will be required to pay Quist
back wages computed pursuant to the Woolworth formula, and any interest payable
can be determined readily in the computation process.
There can be no doubt that backpay, under the statute, replaces wages payable
to employees; that the Board collects such wages for the benefit of injured workers;
and that the Board's backpay awards constitute claims founded upon an "implied"
contract, within the meaning of bankruptcy statutes. Social Security Board v.
Nierotko, 327 U.S. 358; MacKenzie Coach Lines v. N.L.R.B., 344 U.S. 25. The
Board must adapt its remedies so that "victims of discrimination may be treated
fairly" and may be made whole for losses suffered. Phelps Dodge Corp. v. N.L.R.B.,
313 U.S. 717, 194. In fashioning remedies to undo the effects of statutory viola-
tions, the Board must draw upon enlightenment gained from experience. N.L.R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, 346. Where the pay-
ment of wages has been delayed, employees are not made whole for losses suffered
by receiving simply the amount of those wages, with no recompense for delay.
The General Counsel has briefed, fully and ably, statute and case law relevant
to the propriety of interest awards in cases involving: (1) breach of contract; (2)
monetary claims based upon statutes; (3) proceedings under the Universal Military
Training and Service Act, 50 U.S.C.A. App. 451, 459; (4) proceedings under the
Walsh Healey Act, 31 U.S.C.A. 36 for the recovery of sums deducted, rebated, or
refunded from wages, or withheld through underpayment. No useful purpose would
be served by detailed review of these analogous situations ; the analogies noted
appear to be cogent, and I find the General Counsel's contentions persuasive.
It will be recommended, therefore, that the Board order Quist made whole by the
payment to him of a sum of money equal to the amount which he normally would
have earned as wages in Respondent's employ between the date of his discharge and
the date of any proper reinstatement offer which Respondent may make hereafter,
pursuant to recommendations made in this report , less his net earnings during the
period indicated, together with interest upon the net amounts due computed as
noted below. Crossett Lumber Company, 8 NLRB 440, 497-498; Republic Steel
Corporation v. N.L.R.B., 311 U.S. 7. Pay losses suffered by Quist should be com-
puted on a quarterly basis, pursuant to the formula which the Board now utilizes.
F. W. Woolworth Company, 90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bot-
tling Company of Miami, Florida, Inc., 344 U.S. 344. The interest payable thereon
should be computed at the rate of 6 percent per year on the amount found due for
each calendar quarter under the Woolworth formula, beginning with the end of each
calendar quarter and continuing until payment of such amount is properly made.
Respondent should preserve and, upon request, make available to the National
Labor Relations 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 permit an anlysis of the backpay amount due
the dischargee, together with his reinstatement rights, pursuant to these
recommendations.
Respondent's course of conduct, which I have found violative of the statute, goes
to the very heart of the Act, as amended, and necessarily suggests to employees the
firm's purpose, generally, to limit their lawful rights. The unfair labor practices
found are closely related to similar unfair labor practices, the future commission
of which can reasonably be anticipated because of the course of conduct found
HENDRIE AND BOLTHOFF COMPANY 1207
attributable to Respondent in this report . The preventive purposes of the statute
will be frustrated, therefore , unless remedial action recommended in this case, and
any order which may prove to be necessary , can be made co-extensive with the
threat. To make the interdependent guarantees of Section 7 effective , prevent any
recurrence of the unfair labor practices found , minimize industrial strife which
burdens and obstructs commerce , and thus effectuate the policies of the statute, it
will be recommended that Respondent cease and desist from infringement, in any
other manner , upon the rights guaranteed by the aforesaid statutory provision.
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Hendrie and Bolthoff Company is an employer within the meaning of Section
2(2) of the Act, engaged in commerce and business activities which affect com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 775, is a labor organization within the mean-
ing of Section 2(5) of the Act, as amended, which admits employees of Hendrie
and Balthoff Company to membership.
3. By its discriminatory discharge of Robert C. Quist, its subsequent failure or
refusal to offer him effective and complete reinstatement, interrogation of its em-
ployees with respect to their participation in union activity, and threats of economic
reprisal against such employees consequent upon their continued support for that
organization, Respondent engaged in and continues to engage in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case, it is recommended that the Board, pursuant to Section 10(c) of the
National Labor Relations Act, as amended, order that Respondent, Hendrie and
Bolthoff Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouragement of membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local Union No. 775, or any
other labor organization, by the discharge of employees, or by discrimination in any
other manner with respect to their hire and tenure of employment, or any term or
condition of their employment, except as authorized under Section 8(a)(3) of the
Act, as amended.
(b) Interference with, restraint, or coercion of employees, in any other manner,
in the exercise of their right to self-organization, to form labor organizations, to
join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 775, or any other labor organization, to
bargain collectively through representatives of their own free choice, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act, as amended:
(a) Offer Robert C. Quist immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges, and make him whole in the manner set forth in "The Remedy"
section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to permit an analysis of the backpay amount due the employee designated, together
with his reinstatement rights, as set forth in "The Remedy" section of the Inter-
mediate Report.
(c) Post at its principal office and warehouse in Denver, Colorado, where the
unfair labor practices were committed, copies of the attached notice marked
"Appendix." I Copies of the notice, to be furnished by the Regional Director of
'In the event of Board adoption of this Recommended Order, the words "A Decision
and Order" shall be substituted for the words "The Recommendations of a Trial Ex-
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Twenty-seventh Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that these notices are not altered, defaced,
or covered by any other material.
(d) File with the Regional Director of the Twenty-seventh Region, within 20
days of the date of service of this Intermediate Report and Recommended Order,
a written statement setting forth the manner and form in which it has complied
with these recommendations.2
aminer" in the notice. In the further event of enforcement of the Board's Order by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
2In the event of Board adoption of this Recommended Order, this provision will be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union
No. 075, or any other labor organization, by the discharge of employees, or by
discrimination against them in any other manner in regard to their hire and
tenure of employment, or any term or condition of their employment, except
as authorized in Section 8(a)(3) of the Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees, in any other
manner , in the exercise of their right to self-organization, to form, join, or
assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 775, or any other labor organization, to
bargain collectively through representatives of their own free choice, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as amended.
WE WILL offer Robert C. Quist immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay, or
other incidents of the employment relationship, which he may have suffered
by reason of the discrimination practiced against him.
All of our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, authorized in Section 8(a)(3) of the Act, as amended. We will
not discriminate in regard to hire or tenure of employment, or any term or condition
of employment, against any employee because of membership in or activity on
behalf of any labor organization.
HENDRIE AND BOLTHOFF COMPANY,
Employer.
Dated------------------- By-------------------- -----------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 609,
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone
Number, Keystone 4-4151, Extension 513, if they have any question concerning
this notice or compliance with its provisions.