Petropak, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 991 (N.L.R.B. 1978)

Petropak, Inc. and Carpenters District Council of
Houston & Vicinity, AFL-CIO. Case 23-CA-6555
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN; AND MEMBFRS JFNKINS
AND MURPIHY
On June 16. 1978. Administrative Law Judge Pla-
tonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order. However, for conve-
nience we add a Conclusions of Law section.
CON('LUSIONS OF LANW
1. The Respondent, Petropak, Inc., Houston,
Texas, is, and at all times material herein has been, an
employer engaged in commerce and in a business af-
fecting commerce as defined in Section 2(6) and (7) of
the Act.
2. Carpenters District Council of Houston & Vi-
cinity, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to discharge employee Michael
Frosch because of his support of Carpenters District
Council of Houston & Vicinity, AFL-CIO., Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed
by Section 7 of the Act, thereby violating Section
8(a)(1).
4. By discharging Michael Frosch for his support
of Carpenters District Council of Houston & Vicinity.
AFL-CIO. Respondent has discriminated against its
employees to discourage membership in a labor or-
ganization, thereby violating Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
Respondent has excepted to certain credihilit? findings made bh the Ad-
ministrative lIaw Judge II is the Board's established policy not to overrule
an Administrative L.aw Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence cons inces us that the
resolutions are incorrect Standard Drn Iall Products. Inc. 91 NL RB 544
(1950}. enfd 1I8 F.2d 362 ((A. 3. 1951) IWe have carefullN examined the
record and find no basis for resersing her fincdings
PETROPAK. INC.
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 Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Petropak, Inc.. Houston.
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
SIAl I MIN1 ()I It-i, CASI-
PiAIONIA P. KIRKIW'OOD), Administrative Law Judge:
This case was heard by me at Houston. Texas, on Septem-
ber 13 and 14. 1977.1 The complaint. which issued on July
8. was based on a charge filed on June 8. It alleges that
Respondent harassed, threatened, and discharged an em-
ployee, Michael Frosch, because of his union activities and
thereby violated Section 8(a)( 1) and (3) of the Act. Respon-
dent's answer admits discharging Frosch but asserts it did
so for valid cause. Respondent also denies engaging in any
of the unlawful verbal conduct described by the complaint.
Upon the entire record in this case. including my obser-
vation of the witnesses and their demeanor and the post-
hearing briefs filed by Respondent and b3 General Counsel.
I make the following:
FINDINGi S 0- FAi I
I. JUt RISDI)I( Ii(N
Respondent is a corporation dulf organized under the
laws of the State of Texas with an office and place of busi-
ness located in Houston. Texas. It is there engaged in the
business of providing crating services for the purpose of
overseas export to various customers. During the past 12
months, Respondent performed crating services valued in
excess of $50,000 for firms located in the State of Texas.
each of which in turn made sales and/or performed services
valued in excess of $50.000 for customers located outside
the State of Texas. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. l'liE IABOR ORGANIZATION INVOI.VI D
Carpenters District Council of Houston & Vicinity,
AFL CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
il. IFHE ALUlEtGEI) I NFAIR I.ABOR PRA( i( iS
A. The Issues
1. Whether Production Manager Dave Davis (an admit-
ted supervisor) harassed and/or threatened to fire Michael
I Unless otherwise stated all dates in this Decision will he lor the year
1977
238 NLRB No. 141
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frosch on June 7, 1977, 2 because Frosch wore a 'I-shirt
embossed with a large union insignia on the job that day,
thereby violating Section 8(a)(1) of the Act.
2. Whether Respondent then fired Frosch on June 7 be-
cause of his demonstration of union support and adherence.
thereby violating Section 8(a)(3) and (I) of the Act.
B. Background Information
The two central figures in this case-Davis 3 and
Frosch-both entered Respondent's employ in May, 1977.
Davis was hired as the production manager on Mav 17, and
he in turn hired Frosch as a packer on May 24. At the time
both men entered Respondent's employ, the Union was in
the midst of an organizational campaign: a Board election
to determine the Union's majority status had been sched-
uled for the afternoon of June 7.
During Davis' initial interview of Frosch. the two men
exchanged information indicating. inter alia, that both had
college training and had a mutual acquaintance with whom
Frosch had gone to school. In addition, Davis informed
Frosch that the Union was trying to organize Respondent.
In the course of that discussion, as well as in subsequent
discussions, Davis expressed to Frosch his dislike of unions
in general and his unfavorable views about the Union. in
particular, and mentioned that the had previous contact
with Union Agent Sharp.4 In responding to Davis' anti-
union expressions. Frosch led Davis to believe that his atti-
tude about unions was "neutral."5
C. Frosch's Participation in the Union Campaign,' Davis'
Discoivero of Frosch ' Prounion ctivit and the A Ileged
Unlnawful Conduct He Thereaiter Comnmitted
Frosch, I note, was not elgible to vote in the forthcoming
election because of his probationary employee status and he
2 All dates hereafter set out are lor the sear 1977
a Respondent also employed and still employs one Sylvester Davis as a
nonsupervisory leadman, who appeared as a witness in this case. I shall refer
to him in this decision as S. Davis. He is not related to Production Manager
Davis.
' The record shows that Davis had previously been a supervisor at another
company which the Union had sought to organize and that an unfair labor
practice proceeding involving that company had been initiated by the
Union. In the course of that proceeding, some witnesses attributed various
unlawful verbal acts to Davis. Davis' testimony in refutation was credited by
the Administrative Law Judge in that case who noted, however, that Davis
had not denied one act of interrogation attributed to him. The Administra-
tive Law Judge therefore found an 8(a)( I) violation on that basis, but dis-
missed the remainder of the complaint. The Administrative Law Judge's
decision in that case was adduced in evidence here as G.C. Exh 3 without
objection by Respondent General Counsel represented that the decision was
affirmed by the Board.
' The description here given on the Frosch-Davis conversations is drawn
from Frosch's testimony on the matter, all of which, with one single excep-
tion. was uncontradicted. That exception relates to Frosch's additional testi-
mony that, in conversing about the Union, Davis had asked him how he felt
about unions and rd;o questioned him about whether he had heard how
other employees were reacting to the Union. Frosch averred that in respond-
ing to those questions he indicated that he himself was "neutral." but that, so
far as he knew. "everybody [else] was for the Union." Davis, on rebuttal,
expressly denied he had eser questioned Frosch about his union activities or
had otherwise called upon him to declare how he felt about unions. I need
not resolve that conflict, since the complaint does not charge Respondent
with having engaged in any unlawful interrogation, and General C'ounsel's
evidence about Davis' pre-June 7 discussions with F rosch was adduced only
hor hackground purposes.
had been so informed. But notwithstanding this knowledge,
he became a union adherent and attended union meetings.
The last such meeting to which he went while in Respon-
dent's employ was that held during the lunchbreak period
on June 7, the day he was discharged. At that meeting, the
UCnion passed out T-shirts embossed with a large Union
insignia to each of the men present,, and each of them,
including Frosch, wore that shirt to work for the several-
hour period preceding the conduct on that afternoon of the
Board election.' By engaging in this open demonstration of
sympathy with the Union's cause, Frosch provided Davis
with the first clue that he was prounion. s
Davis' sudden discovery that, contrary to what Frosch
had led him to believe. Frosch was in fact prounion, forms
the backdrop for the complaint's allegation that, on the
same day, Davis harassed and threatened Frosch and then
initiated Frosch's discharge all because of Frosch's union
activities. The merits of General Counsel's case and its de-
fense turn on the following facts describing two confronta-
tions which took place between Frosch and Davis on the
afternoon of June 7.9
I. The first confrontation
[he first confrontation between the two men. I find. took
place shortly after the lunchbreak at Frosch's work sta-
tion.Y' At that time, Frosch was doing packing work with a
' According to the record, all the daylight-shi't employees v ere present at
that lunchtime meeting.
'The election was held pursuant to a stipulation for certification upon
consent election in a production-maintenance unit composed of about 34
employees Probationary employees were ineligible to ,ote. Under the Re-
spondent's policies, newly hired employees were put on a probationary status
for a specified period of time Frosch was therefore ineligible to vote in that
election. The record does not show if the Union won or lost the election.
"Dasis so admitted at the hearing.
9 My narration of the "facts" describing the confrontations, which I find
took place between Frosch and Davis on the afternoon of June 7, is drawn
from a synthesis of the testimony of both sides' witnesses which I regard as
credibl. As to both of the incidents I here report. there is conflicting testi-
mony affirmations by the General Counsel's witnesses, met either by flat
denials or by inconsistent versions of witnesses on the other side. But, to
avoid unduly burdening this report, I shall not, except where special circum-
stances seem to call for it, set out all the conflicting testimony on disputed
matters or my reasons for resolving those conflicts I have, however, fully
considered and evaluated all the testimony on both sides and have arrived at
ai judgment of what part of that testimony should be credited in light of the
inherent plausibility of' the reported facts in the setting of surrounding events
and my estimate of the reliability of the witnesses, based on my observation
of their demeanor, their spirit of candor and fairness, or the want of it, as
reflected by their overall testimony, and the extent. if any. to which their
testimony was impeached in other respects, and the apparent interests of
certain witnesses in this proceeding's outcome.
10 Frosch testified that earlier that afternoon another confrontation had
occurred between him and Davis during which D)avis assertedly saw him
while he and other members of the crew were packing a box with "dust:"
insulation and had momentarily stopped their packing to rest. According to
Frosch, Davis gave him an "angry" look and directed to him. alone, an order
that he continue doing the packing work or he would put Frosch on "hot
steel" a term referring to steel packing boxes which were literally: hot to the
touch during the summer months. Frosch's report about this incident was
not corroborated by any other witness except as to one detail. S. Davis
testified that the "dusty" insulation work was being done that afternoon, but
I believe he was mistaken in his recollection about this.
Respondent adduced documentary evidence, showing that the "dusty"
work was being done in the morning. Although Davis admitted that he saw
the men standing around that morning (they wanted masks to do the work.
which lie then supplied to them) and directed them to continue their work,
he denied that he addressed any remarks especially to Frosch. I credit Re-
spondent's evidence that the work was done in the morning
992
PETROPAK, INC.
crew headed by leadman S. Davis. All members of that
crew (as well as many other employees on the jobsite) were
wearing the union T-shirts."
In the course of performing his supervisory duties at the
jobsite, Davis walked by the packing crew to which Frosch
was assigned and. on seeing Frosch. observed his union T-
shirt and gave the appearance of irritation. He reversed
directions to come back to Frosch's work station. where-
upon Frosch asked him why he was "mad." Davis re-
sponded with a comment of disapproval about the union T-
shirts. Frosch then asked him what he had against unions.
Davis then told Frosch, in S. Davis' presence and hearing,
that he could either remove his T-shirt or "pick up his
check on Friday.": This statement by I)avis, I find, plainly
establishes the alleged violation of Section 8(a)( I) set forth
in the complaint, inasmuch as it was a remark carrying a
warning or threat of discharge for union activity clearly
protected by Section 7 of the Act- 0i: the wearing of union
insignia by employees at their place of work. 3
2. The subsequent confrontation between Frosch and
Davis
IThe next time Davis saw Frosch on the afternoon of June
7 was about 3 p.m., shortly before the commencement of
the Board-conducted representation election and before the
end of the daylight work shift. At that time, Frosch was
with Michael Perrella. a daylight-shift shipping and receiv-
ing clerk. Both men were in the office area-a location re-
moved from their normal work areas-and both were still
wearing the union 'T-shirts. Unbeknownst to Davis, the two
employees were there because Robert Burnette,'4 Respon-
dent's president, had ordered Perrella to bring a table from
the office of Roger Baur (the company comptroller) to the
polling area for the use of the election observers and to get
another employee to help him.' When Davis saw them, the
two men were about to enter Baur's office ' , and, speaking to
them in a sharp manner, he asked them what they were
I" Tim Clemmons. the son of a supervisor. took his off, however. with the
approval of the Union and did not put it on again until after the election.
12 t'nderlying evidence about that statement and its context, which I have
credited, is to be found in the mutually consistent testimonial accounts of
Frosch and S Davis. The latter was still in Respondent's employ when he
testified.
Testimony in refutation which I do not credit was given by Davis. He
denied that he even saw Frosch between the time the men returned from
lunchbreak and the time (about 3 p.m.) when, as below reported, Davis
encountered Frosch in the office area.
' See, e.g.. Mclndustri 's, Inc. 224 NLRB 1298 (1976).
a1 I have accepted the spelling of Burnette's name as given in Respondent's
brief. the reporter spelled it "Burnett" but was apparently mistaken
" The fact that a table had not been provided was discovered when Bur-
nette and other officials or representatives came to the polling area to inspect
it about 20 minutes before the election polls were to open. Burnette first
asked Davis to arrange for the table to he brought to the area. While Davis
was attending to the matter. Burnette-- still in the polling area awaiting the
table- became anxious after the lapse of a few minutes and hence issued a
further order about the table to Perrella.
16 A large "Keep Out" sign was posted in the office area where, inier alia,
the offices of Burnette. Davis, and Baur were located-- all with different
entries coming off a hallway where a receptionist's desk was placed.
The receptionist was at the desk. it appears, when Frosch and Perrella
entered the office area. Burnette was then still in the polling area with Re-
spondent's counsel. the union agent, and the Board agent Baur was in his
office. clearing off his table.
doing." Perrella told him about Burnette's order. Still using
a harsh or sharp tone of voice. Davis then ordered the two
men to "get out" and return to their work stations, as he
had already taken care of the matter. Frosch voiced an
objection to Davis' manner of speaking to them. He told
Davis they were "just there to get the table," and he didn't
"have to treat them like dogs." Davis replied that they were
to just "get the hell out of there." The two employees then
turned around and headed in the direction of the office area
exit (one leading into the warehouse office portion of the
plant where Perrella was stationed). Davis then walked the
other way toward his own office.'" While the two employees
were walking toward the exit, Frosch began griping about
the "hassling" to which Davis had just subjected them. lie
told Perrella, inter alia, that Davis had further "hassled"
him earlier that day and made a comment expressing the
idea that "if anybody hassled [him] like that after work, he
would get his lights punched out."'9 Suddenly, the two of
them realized that Davis was now coming their way and
was within hearing distance.
Another verbal exchange then took place between Davis
and Frosch. following which Davis arranged with Burnette
a terminal conference for Frosch and had Frosch fired. In
that conference (and at the hearing) Davis maintained that
when Frosch spotted him coming near, Frosch addressed
directly to him a threat to "punch his lights out." Frosch,
on the other hand, claimed that Davis' charge was simply
not true and that, indeed, he had not threatened Davis in
any way'.
I quote now the pertinent excerpts of the testimony of
each about what took place between the time Davis ordered
Frosch and Perrella to "get the hell out" of the office area
and the time when the three of them saw each other again,
but a few minutes later.
Frosch's testimony on the matters was as follows:
I was walking out the door and I was talking to
Mike. And when I was walking out the door I said,
man, he has hassled me three times today. fie threat-
ened me one time, and he threatened to put me out on
the hot steel on another time. And I told him if he kept
on hassling me, if anybody hassled me like that after
work, he would get his lights punched out.
Mr. Davis then--I heard Mr. Davis say. hey, what
did you say? And we turned around and looked at Mr.
Davis. He walked up and put his face-he was about
two inches from my nose, and he is a little bit shorter
than I am, and he was standing on his tiptoes almost.
And he got in my face and said, what did you say?
And I said, if anybody was to hassle me like that
after work, they would get their lights punched out.
Davis' account was:
I started back toward my office. It was getting close
'" Perrella and Frosch testified that Davis "yelled" or "shouted" at them
when he addressed the two of them dunng this incident. Davis descnbed his
manner as "authoritative" and admits his voice may have been "loud" in
tone
t* The facts about this verbal exchange are drawn from a synthesis of the
mutually consistent testimony of Perrella, Frosch, and Davis
m1 The quoted language is from the testimony of Frosch. Perrella also tes-
tified about the content and context of the grinping remarks Frosch made to
him and as to what later took place His testimony corroborates the material
fact s allested to by Fros, h.
993
DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
to election time, and the table had already went out.
And I went back there, and I noticed I didn't have my
cigaretts [sic] with me. So I went to the you know I
went to the shipping and receiving room, where I re-
membered placing my cigaretts [sic]. And I went to get
them and get back in my office prior to the election.
As I opened the door from the general office to walk
into the shop. Mr. Perrella was next to the shipping
and receiving office, outside the door there, and Mr.
Frosch was in that aisleway approximately fifteen feet
from me.
As I opened the door. Mr. Frosch saw me open the
door. He looked right at me, and he made the state-
ment, I'll punch his lights out. And he said it in a very
loud tone. And he said no.
I said, Mike come here.
He said no.
I said, Mike, I'm giving you a direct order. Come
over here.
Hie walked over there, and I said, you mean you're
going to punch my lights out?
He said, that's right.
I said, did you mean that'!?
He said, yes, I did.'"
Reviewing all the testimony given on the above matter, I
am persuaded that the testimony of Frosch corroborated
by Perrella about what he said to Davis and in what con-
text is essentially truthful and credibly represents what
most probably took place. I therefore credit the Frosch-
Perrella version of the verbal exchange between him and
Davis and the circumstances which occasioned it where it
conflicts with Davis' version.
Looking at both sides' evidence, it seems clear to me that
when Davis first heard Frosch utter the "punch his lights
out" phrase, Frosch and Perrella were proceeding with their
backs to Davis and neither of the two employees knew or
had any reason to anticipate that Davis was behind them or
anywhere within hearing distance. Thus, when Davis or-
dered the two employees to "get the hell out" of the office
area, he and they were facing each other: and the two em-
ployees then had to turn their backs on him to leave.2 ' Da-
vis gave no indication at that point that he intended to
follow the two men out of the office area: he averred that he
did not in fact do so. Rather, as the above quoted portion of
Davis' testimony shows, on parting company with the two
employees, Davis simultaneously turned away and walked
in an opposite direction to his own office, where he intended
to remain until the conclusion of the election: and the only
reason he found himself running into the two employees
20 Attorney ttooper. who had meanwhile walked out of the polling area to
check on whether the table was on its was to the polling place, testified that
he came o(n ihe scene just at the point at which Frosch used the "punch out
his lights" phrase when talking to Perrella. ie averred that he heard Davis
say I'1ll punch out his lights . . or something to that etlect" (the quote is
from his testimony on cross examinationt and that he remained on the scene
long enough to also hear Dlavis' order that T rosch approach him. whereupon
he returned to the polling area to tell Burnette that he {Burnettel had a
"problem,"
21 The door through which the men had entered the office area from the
shipping and receiving room was the only door leading it and out of the
office area from any part of the plant See the sketch of the plant submitted
in evidence as Joint [ xh. I
once again was that he remembered, on reaching his office,
that he had left his cigarettes in the shipping area--towards
which the two employees were proceeding--and wanted to
retrieve them. In the few minutes which elapsed in the in-
terim, the two employees had not parted company with
each other: they were still in the process of going to their
work stations; and although they were approaching the
part (of the shipping area in which Perrella normally
worked, they had not quite arrived there.2 I must and do
deduce and find accordingly that when Davis ran into them
again: (a) Frosch and Perrella had their backs to Davis. and
Frosch was concluding the griping remarks he had been
making about Davis to Perrella: (b) Davis caught the two
men by surprise by announcing his presence with a state-
ment indicating to both of them that he had overheard all
or some part of the remarks Frosch had made about him;
(c) Frosch did not declare to Davis, without any prelude, as
Davis would have it believed, that he would "punch his
lights out": but rather he repeated to Davis. because or-
dered to do so. substantially the same comments he had
made to Perrella, before becoming aware that Davis was
now' behind him and within hearing distance: and (d) Davis
could not reasonably have concluded, in the circumstances.
that Frosch meant to have Davis overhear what F rosch had
been saying about him to Perrella.
Frcsch's Termination Conferences with Burnette and
Davis
After Frosch told Davis what he had been saying to Per-
rella, Davis ordered Frosch to follow' him to Burnette's of-
fice. F'rosch asked Perrella to come with him. While the
three of them were there, Frosch asked Perrella if it were
not true that I)avis had "shouted" at them. Perrella af-
firmed this was so. Davis then asked Perrella to leave the
office. At this point. Davis infbrmed Frosch that his "pro-
bation" had not worked out: that he was angered by and
would not tolerate Frosch's "threat": and that he was sum-
moning Burnette to have Frosch fired tfor insubordination.
Burnette came into the office within a few minutes (the
balloting process in the Board election having now begun),
whereu.pon Davis told Burnette his version of the incident
and declared that Frosch had "threatened" him and was
not "working out" in his probationary period. Frosch then
spoke up. According to Frosch's testimony, which I credit.
he expressly denied that he had threatened Davis and be-
gan to give "his side of' what had happened."
But Burnette cut him short. He told Frosch that he didn't
have time to discuss the matter with him that day but
would do so on the following day.
On the next day. Frosch reported to the jobsite at his
regularly scheduled starting time, punched in his timecard,
22 The testimon) of' Frosch and Perrella so indicates Attorney Hooper's
testimory also placed Davis behind the two men walking toward the ship-
ping area office. with Davis proceeding behind them in the office area at the
monment at which HIxper asserts he came on the scene. Although Hooper
also reported that Frosch and Perrella were then following the three men
who were carrying out a table for the election area. w;hereas both F:rosch and
Perrella reported they did not see the table being carried out. the detail is an
insignifi.ant one; and I need not and do not resolve the conflict. I am satis-
fied. in aIny event, that Attorney txooper's testimony. even it credited in toto,
does nol basically impair f rosch's account, corroborated by Perrella, about
the content and context ot his verbal exchange with Dasis
994
PETROPAK, INC.
and proceeded to join S. Davis' packing crew. About 45
minutes later, Davis came out, escorted Frosch to Bur-
nette's office, and left. Frosch credibly reported that the
following then took place:
Mr. Burnett was sitting at his desk, and Mr. Davis
walked out. And Mr. Burnett said he said that he
could see how sonmehody could take it that I was
threatening him. as big as I was, because a person of
my size could be easily taken that wa'. And he said
that he couldn't tolerate anybody threatening the em-
ployees.
I told him that I could understand that.
And he said that he was going to have to terminate
me.
And I told him, well. I did not threaten him. I said.
you ought to make Mr. Davis tell you the truth. That's
exactly the words I said.
And Mr. Burnett then said that he was going to have
my check ready, and for me to wait outside. And I
went back outside, and I was sitting on the-I was
talking to Sylvester outside of the office, and Mr. Bur-
nett came out and had my check. And I took my check
and left.
Frosch's check included pay for a one-hour period of
work on June 8.2
Analysis and Concluding Findings about the Merits of the
Alleged 8(a)(3) Violations
The question posed by the 8(a)(3) allegation of the com-
plaint and its litigation is whether Davis' decision to have
Frosch fired was motivated in whole or in part by antiunion
considerations. The burden of establishing the presence of
the prohibited motive rests, of course, on General Counsel.
But it may be met by circumstantial evidence which reason-
ably gives rise to the inference of a discriminatorily moti-
vated disciplinary action. As has been observed by the
courts:
Actual motive, a state of mind, being the question. it is
seldom that direct evidence will be available that is not
also self:-serving. In such cases, the self-serving declara-
12 Burnette maintained that Davis admitted to him on June 7 that he had
in fact "threatened" to "punch [Davis'] lights out": whereupon Burnette
promptly advised him that Respondent had "no choice" but to fire him: and
he asked Frosch to come back the next morning to pick up his final pay-
check, as the bookkeeper was tied up as the compan>'s election otbserver that
afternoon.
,As indicated in the text. I credit Frosch's account about his conference
with Burnette. as well as with Davis Among other things, some colrrobora-
tion for a portion of the facts reported b, Frosch is provided by the facts
that (a) Frosch found his timecard still in the rack on the morning of June
8; (by) S. Dasis corroborated Frosch's testimony that Frosch came on the
jobsite and began doing packing work as part of S. Dasis' crew that morn-
ing: and (c) Burnette admitted that Davis' final check included an hour's pay
for June 8. Although Burnette sought to explain that extra hour's pay as
"travel time." he admitted that Respondent did not customarily make such
payments to employees
It does not. fi course, make any difference to either side's case, as to
whether Frosch was fired on June 7 or June 8, and I am mystified by Re-
spondent's argument and efforl tow prove to the contrary I am of the impres-
sion that Frosch was, perhaps. aware on June 7 that Burnetle would not
overturn Davis' recommendation that Frosch be fired: but that when he
came back on June 8 and iound his timecard in the rack. he had a glimmer
of hope that he might have been granted a reprieve
tion is not conclusive; the trier of fact may infer motive
from the total circumstances proved. Otherwise no per-
son accused of unlawful motive who took the stand
and testified to a lawful motive could be brought to
book. Nor is the trier of fact here the trial exam-
iner required to be any more naif than is a judge. If
he finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that
the employer desires to conceal-an unlawful mo-
tive-at least where . . . the surrounding facts tend to
reinforce that inference. Shattuck Denn Mfining (orpo-
ration (Iron King Branch) v. .L R. B., 362 F.2d 466.
470 {C.A. 9, 1966).14
Relying on the teaching of the above cited cases. General
Counsel claims, in essence, and I agree, that the presence of
a prohibited reason for Davis' decision is fairly inferable
from a combination of all the following proven circumstan-
tial facts:
I. Davis was hostile to the union cause and during
friendly conversations had so told Frosch on a number of
occasions in the belief, contrary to the fact, that Frosch
shared his antiunion views.
2. Davis admittedly discovered, a few hours before he
took affirmative measures to have Frosch fired, that Davis
was in fact a union supporter when he saw Frosch wearing
a union T-shirt. On realizing that he had been wrong about
believing that Frosch lacked interest in the Union. Davis
made evident to Frosch his intense displeasure with
Frosch's display of union support and went so far as de-
clare to Frosch. in the presence of fellow workers, that he
would have Frosch discharged by the end of the workweek
if he did not remove his union T-shirt.
3. Davis continued to display to Frosch a hostile attitude
when he saw Frosch with Perrella in the office area and
observed that he was still wearing the union T-shirt. I or
Davis used an unduly sharp tone of voice in ordering the
employees to leave the area and get back to work, notwith-
standing the fact that the two employees had truthfully ex-
plained to Davis that they were in the area for legitimate
reasons. Davis offered no legitimate explanation for his hos-
tile behavior at that time.
4. From all accounts. Respondent considered Frosch to
have excellent potential as an employee; and it was well
satisfied with Frosch's work performance. The sole reason
that Respondent advanced for firing Frosch was that Davis
charged Frosch with having uttered to him a threat to
"punch his lights out." The record facts established. how-
2 See also Bettrr Baking (Co. Inc s ..ILR. 380 F.2d 199. 203 (('.A 10.
1967), where the court stated
Rarely. it' ever. does an employer admit that an employee has been
discharged for participation in union activities. Discnmination must.
therefore. usually be proved by circumstantial evidence, and properly
SO
the discharge of qualified workers whho are also actise unionists " Is
a circumstance of suspicion which may rise to a justified inference of
violatise discrimination": in such a case ". the issue must . be
determined by the degree of significance to be given to [the employer's]
explanation of the reason for the discharge " Rioky Ulounlain Gas
(lonapin In, v. V l R B, 326 F 2d 949. 952 ((' A 10 1964)
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, that Frosch used the quoted phrase in an impersonal
sense-to blow off steam-while voicing his gripes about
Davis to Perrella, a fellow employee; that Davis overheard
the remarks, and when he did so he understood that Frosch
had been airing gripes about him (even though Frosch had
not used Davis' name); and that Davis understood also that
Frosch's comments to Perrella were not meant for his ears
and were in fact uttered without any knowledge or reason
on Frosch's part to expect that Davis was anywhere within
hearing distance. Yet Davis chose to advise Frosch that he
had heard his remarks; to compel Frosch to repeat them to
him: and to charge Frosch, then, with having uttered a
threat to do him bodily harm, knowing, I am convinced,
that Frosch had not used the words "punch his lights out"
to convey any idea that he meant to take Davis on in a
punching match then or at any future time. In sum. I find
and conclude that Davis' attribution to Frosch of a deliber-
ate declaration to him that he meant to do him bodily harm
was pretextual in nature.
Inasmuch as the reasons on which Davis assertedly acted
to have Frosch fired were proved to be pretextual in charac-
ter, it is reasonably inferable that Davis' action was moved
by his open resentment of Frosch's union activity. For the
credible evidence as a whole supplies no other explanation.
This being so, I must and do conclude that in implementing
Davis' recommendation that Frosch be fired, Respondent
violated Section 8(a)(3) and (1) of the Act, as alleged.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, my recommended Order shall include
conventional provisions requiring that it cease and desist
from the unfair labor practices found and from in any other
manner infringing upon its employees' Section 7 rights.2
Further, and in order to effectuate the policies of the Act,
my recommended Order also will require that the Respon-
dent offer Michael Frosch reinstatement to his former job
and make him whole fbor any loss of earnings he may have
suffered by reason of the Respondent's discrimination
against him: and that it also post appropriate notices. Loss
of backpay shall be computed and interest thereon shall be
added in the manner prescribed by F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation
231 NLRB 651 (1977). See, generally, Isis Plumbing and
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record herein, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER2 6
The Respondent, Petropak, Inc., Houston, Texas, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
12 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 19411.
26 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, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) relling employees that the) will be terminated if they
do not abandon membership in or support of Carpenters
District Council of Houston & Vicinity, AFL CIO, or any
other labor organization.
(b) Discharging employees because of their union or
other protected concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Michael Frosch immediate and full reinstate-
ment of his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make Michael Frosch whole for any loss of pay he
may have suffered as a result of the discrimination against
him in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request. make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records. timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its facility in Houston, Texas, copies of the
attached notice marked "Appendix."2 Copies of the notice
on forms provided by the Regional Director for Region 23,
after 'being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon re-
ceipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 23 in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply therewith.
27 In the event that this Order is enforced by a judgment of'a United States
Court :f Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF TIlE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform our employees that they will
be terminated if they do not abandon their member-
'hip in or support of Carpenters District Council of
Houston & Vicinity, AFL CIO, or any other labor or-
ganization.
WE WIll. NOW discharge employees because of their
union or concerted activities.
WE WlI.L NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
996
PETROPAK. INC.
their rights under Section 7 of the National Labor Re-
lations Act.
WE WILl offer Michael Frosch immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position. without
prejudice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of pay he
may have suffered as a result of our discrimination
against him.
PETROPAK, INC.
997