Pierre's Vending Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1219 (N.L.R.B. 1985)

PIERRE 'S VENDING CO
Pierre's Vending Company , Inc. and Local 337,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
and Paul Eigenbrod . Cases 7-CA-20312 and 7-
CA-20851
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 February 1984 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 only to the extent consistent with this
Decision and Order.
The judge found, inter alia, that the Respondent
violated Section 8(a)(3) and (1) when, in April
1982, it informed Eigenbrod that he was no longer
needed to perform Saturday truck repair work; in
May 1982 , it issued him a warning letter ; and sub-
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products , 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent also has excepted to the judge 's refusal to permit the
Respondent to introduce evidence of discnmmatee George Jones' alleged
postdischarge misconduct In so doing , the judge found such evidence
was beyond the scope of the complaint and a matter for consideration
during compliance proceedings We find no reason to disturb this ruling
Also, in the penultimate paragraph of the portion of the judge's decision
entitled "Discharge of George Jones" (sec III, A , 1), the judge 's inadvert-
ent reference to "Smith" should read "Jones "
2 We agree with the judge 's conclusion for the following reasons that
the Respondent violated Sec 8(a)(3) when it discharged employee
George Jones We find that the record shows that the Respondent had
knowledge , as evidenced by a telephone call to employee Eigenbrod in
July 1981 and by Jones' open solicitation of the Respondent's employees,
including a supervisor , in December 1981, of Jones' participation in union
organizing activities We note that Jones , an employee of 10 years ' stand-
ing, up until the time of his discharge had no prior record of disciplinary
action , that he received a raise approximately 2 months before his dis-
charge which was not rescinded , and that the incidents for which Jones
allegedly was fired were not brought to his attention at the time they oc-
curred We also note that, while the Respondent 's general manager, Stan-
ley Glassco , testified that he decided to fire Jones in late November 1981,
he did not do so until 5 January 1982, approximately a week after Jones
again became openly involved in union organizing activities While the
Respondent claims the delay in firing Jones was due to its owner's ab-
sence and the Christmas holidays , the record shows its owner was away
for only a brief period of time during these holidays The Respondent
clearly has not shown why the implementation of this alleged decision to
fire Jones was thus delayed Thus, we find that the Respondent's knowl-
edge, Jones ' prior record , the Respondent 's failure to bring its complaints
about Jones' work or attitude to his attention, the delay between the al-
leged decision to fire Jones and his actual firing, and the precipitous
nature of his discharge closely following his renewed participation in
union organizing activities belie the Respondent 's claim that it discharged
Jones for reasons of "incompetence and incompatibility "
1219
sequently, in June 1982, it discharged him. The Re-
spondent has excepted to these findings, contending
that, with respect to the Saturday truck repair
work, Eigenbrod was an independent contractor
and was not entitled to the protection of the Act.
It further contends that Eigenbrod's "poor work
habits" and "generally unacceptable behavior" con-
stituted a legitimate basis for his discharge. We find
merit to the Respondent's exception that it violated
the Act when it issued Eigenbrod a warning letter
and subsequently discharged him. We also find,
contrary to the judge, that Eigenbrod was an inde-
pendent contractor with respect to his Saturday
work. Nevertheless, we find, for the reasons set
forth below, that the Respondent violated Section
8(a)(3) when it discontinued that work for union-
related reasons.
1. The facts are fully set forth in the judge's de-
cision. In summary, the record shows that Eigen-
brod was hired by the Respondent on 7 April 1980
and thereafter worked as a relief driver and truck
repairman . In the summer of 1980, Eigenbrod
began to do truck repair work on Saturday in addi-
tion to his regular weekday delivery and repair
duties.3 With respect to the Saturday repair work,
Eigenbrod, an experienced mechanic, determined
what repairs needed to be made. He worked with-
out supervision, using his own tools and with parts
and materials which he purchased, as needed, with
money supplied by the Respondent. For these serv-
ices, he was paid at a rate he himself deemed ap-
propriate, based on the difficulty of the repairs and
the time spent in completing the work. This
amount was generally between $60 and $90 per
Saturday.4 Payment for these services was by a
check drawn on a general ledger account which
was separate from the normal payroll account, No
withholdings for state or Federal taxes were de-
ducted from the checks and the amounts were not
considered income by the Respondent for tax with-
holding purposes or as a basis for fringe benefits.
The Respondent 's general manager Stanley Glassco
was present at the Employer's premises on Satur-
days and Eigenbrod regularly first checked with
Glassco before coming in on Saturdays to do,the
repair work.
3 The nature of the Saturday repair work was similar to that per-
formed by Eigenbrod during the week
4 The judge found that Eigenbrod was normally compensated at a flat
rate regardless of the hours worked On direct examination , Eigenbrod
testified that he was paid at a flat rate of $90 for his Saturday work He
subsequently testified on cross-examination, and in response to the judge's
questions, that he was paid at a rate he deemed appropriate ; , depen1mg
on the job Payroll records introduced as evidence during the hearing in-
dicate that between October 1980 and April 1982 Eigenbrod received
checks for his Saturday work in amounts which varied from $60 to $90
274 NLRB No. 184
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eigenbrod became involved in union organizing
activities in July and December 1981 and in Janu-
ary 1982.5 Beginning in January 1982, he was as-
signed a regular delivery route during the week but
continued to perform truck repair work on Satur-
days, as he had done in the past. On 26 March
1982, an election was held at which Eigenbrod
served as the Union's observer. Immediately there-
after, on routine inquiry by Eigenbrod as to Satur-
day work, Glassco told Eigenbrod not to come in
that weekend. Approximately a week later, Glassco
told Eigenbrod that he would no longer be needed
for ^ Saturday truck repair work. Undisputed testi-
mony shows that some of the Saturday repair work
which had been performed by Eigenbrod was sub-
sequently performed by other employees.
Based on the above, and particularly in light of
the fact that the judge found that Glassco super-
vised Eigenbrod's work to the extent he cleared
Eigenbrod to work and determined that the work
was completed and that truck repair work was per-
formed during the week as well as on Saturdays,
the judge concluded that Eigenbrod was a statuto-
ry employee with respect to the Saturday repair
work and entitled to the protection of the Act. Ac-
cordingly, the judge found that the elimination of
Eigenbrod's Saturday repair work, following his
participation in union organizing activities, includ-
ing the union election , was discriminatory and thus
violated Section 8(a)(3) of the Act.
The Board applies the common law right-of-con-
trol test in determining whether individuals are em-
ployees or independent contractors. In Twin City
Freight, 221 NLRB 1219, 1220 (1975), the Board
held:
. . an employer-employee relationship exists
when the employer reserves not only the right
to, control the result to be achieved, but also
the means to be used in attaining the result. On
the other hand, where the employer has re-
served only the right to control the ends to be
achieved, an independent contractor relation-
ship exists. . . . In order to determine the
nature of the relationship, the Board analyzes
the facts presented in the particular case, bal-
ances them, and arrives at a result.
In the instant case, we find, contrary to the
judge, that Eigenbrod was an independent contrac-
tor with respect to the Saturday repair work. In
reaching this finding, we note that Eigenbrod, an
experienced mechanic, determined what work was
5 The record shows that a majority of employees signed authorization
cards during the July and December 1981 organizing attempts but that no
petitions were filed In January 1982, Eigenbrod obtained cards from a
majority of employees and a petition for election was filed on 16 Febru-
ary 1982
to be done and performed the work without super-
vision,6 at a rate he deemed appropriate based on
the difficulty and length of the job. We also note
that Eigenbrod was paid for this work by check
drawn from a general ledger account separate from
the Respondent's payroll account and that the Re-
spondent did not deduct state or Federal taxes
from these checks.? Thus, we find that the record
establishes that with respect to the Saturday repair
work Eigenbrod was an independent contractor
rather than a statutory employee. Although we
have concluded that Eigenbrod was an independ-
ent contractor with respect to his performance of
Saturday repair work, we nonetheless find that the
Respondent violated the Act when it discontinued
this work following Eigenbrod's participation in
union activities. In so doing, we find that Eigen-
brod's employment as an independent contractor
was related to his status as a full-time employee.
Thus, we find that the cessation of this work for
the union-related reasons found by the judge vio-
lated Section 8(a)(3).8
2. With respect to Eigenbrod's warning notice
and later discharge, the facts are summarized as
follows: On 25 May 1982, Eigenbrod received a
written memo from his supervisor Haskell. The
memo was assertedly based on a customer com-
plaint about the condition of vending machines lo-
cated at Friendship Manor, one of the accounts
serviced by Eigenbrod. The memo, which was pre-
pared following Kelso's (Respondent's owner) in-
spection of the site, referred, inter alia, to Eigen-
brod's "sloppy work habits" and stated that it was
a final warning and that future incidents would
8 As noted above, the judge found that the work was supervised by
Glassco to the extent that he cleared Eigenbrod to work and checked to
see that the work was completed While the record shows that Glassco
regularly was present at the Respondent's premises on Saturdays, there is
no showing that he directed Eigenbrod's work or otherwise instructed
him as to how it should be performed With respect to his "clearing" Ei-
genbrod to work, the record shows that Eigenbrod simply would inform
Glassco that certain work needed to be done and that he planned to
come in on Saturday to do it Finally, although the record indicates that
Eigenbrod prepared a checklist of completed repairs for the Respondent,
there is no showing that Glassco, who testified that he had no training in
auto maintenance, inspected Eigenbrod's work Contrary to the judge,
we find these factors evidence of a concern with the results to be
achieved rather than evidence of an exercise of a right to control the
means of achieving them
7 The fact that the Respondent did not withhold state or Federal taxes,
although not determinative, is nonetheless relevant to a determination of
independent contractor status
8 Member Dennis finds that the Respondent's discontinuing Eigen-
brod's Saturday work violated Sec 8(a)(3) even if Etgenbrod was an in-
dependent contractor respecting Saturday work, because the Respondent
discontinued the work in retaliation for Eigenbrod's employee union ac-
tivity
For the reasons set forth in his dissenting opinion in Senfiner Volks-
wagen , 273 NLRB 166 (1984) Chairman Dotson would not find that the
Respondent 's termination of Eigenbrod 's independent contractor services
violated the Act
PIERRE'S VENDING CO
result in his discharge 9 On 15 June, having re-
ceived a customer complaint about Eigenbrod's at-
titude, Glassco terminated him. In so doing,
Glassco gave Eigenbrod a letter which referred to
his "poor work habits" and "generally unaccept-
able behavior." At the hearing, Glassco testified
that, between 25 May and 15 June, he conducted
several onsite inspections of machines serviced by
Eigenbrod at two locations, finding them improper-
ly "merchandised." 10 Employee Tom Angebrandt
testified without contradiction that in May, pursu-
ant to Glassco's orders, he made inspections of sev-
eral other machines serviced by Eigenbrod, includ-
ing the one at Friendship Manor, finding them
almost empty or in need of cleaning
The judge found that the Respondent had
knowledge of Eigenbrod's union activities based,
inter alia, on his participation as a union observer
in the 26 March election. He further found that the
record presented no probative evidence of the
sloppy work habits or misconduct on which Eigen-
brod's discharge was allegedly based, noting that
the evidence regarding the two incidents which
precipitated the 25 May letter and 15 June dis-
charge was based on hearsay testimony. l i He also
found no probative evidence that Eigenbrod previ-
ously had been warned or disciplined about sloppy
work habits. i 2 While noting that Glassco and An-
gebrandt had testified as to the unsatisfactory con-
ditions of machines serviced by Eigenbrod at vari-
ous locations, he found that this testimony offered
no evidence that Eigenbrod's work was better or
worse than that of other employees. He also found
that the record as a whole failed to show if the
condition of the machines was attributable to Ei-
genbrod rather than customer usage. Finally, the
judge, terming both incidents "essentially inconse-
quential," found that the Respondent did not
present a credible basis for issuing Eigenbrod the
25 May memo or discharging him on 15 June. Ac-
cordingly, he found that the Respondent's actions
9 With respect to his receipt of the 25 May letter, Eigenbrod testified
as follows
I had stated to him previously they'd been having problems over
there with this coffee machines it makes a bit of a mess if some-
one spills a little bit on the front or dumps a cup in the cup station, It
runs all over everywhere in there it was an old machine and it
was just a messy machine
10 The record shows that the term "merchandised" refers to keeping
the machines properly supplied, i e , with a variety of products or with
appropriate condiments
l i The record shows that the General Counsel made no objection at
the time this testimony was presented
iz The record shows that Glassco testified without contradiction that,
approximately a month before the 25 May letter, he told Eigenbrod to
clean up his delivery truck several times Eigenbrod denied having
sloppy work habits but did not testify to any conversations regarding his
truck However, he did state that on one occasion prior to the 25 May
letter he had been told by a former supervisor that the vending machines
located at Friendship Manor needed "extra cleaning" and that it was El-
genbrod's responsibility to clean them
1221
were in retaliation for Eigenbrod's union activities
and in violation of Section 8(a)(3) and (1) of the
Act. We reverse the judge's above findings. As-
suming that the General Counsel presented a prima
facie showing that the warning letter and the dis-
charge violated the Act, and considering the Re-
spondent's cessation of Eigenbrod's Saturday work
violated the Act, we nonetheless find that the Re-
spondent showed these later actions would have
been taken even in the absence of Eigenbrod's
union activity.
The record shows that Eigenbrod engaged in
union organizing activities in July and December
1981 and in January 1982, and subsequently served
as an election observer for the Union on 26 March
1982. The record, however, contains no evidence
that in the next 2-1/2 months immediately preced-
ing Eigenbrod's discharge Eigenbrod engaged in
any type of union activity or even that the Union
was the subject of discussion among employees.
The record further shows that, on 25 May, Eigen-
brod received a letter regarding an unsatisfactory , '
job performance in terms of his failure to clean the
coffee machine and to service properly the snack
machine located at Friendship Manor. As noted at,
footnote 8, at the time Eigenbrod's supervisor Has-
kell presented the 25 May memo to him, Eigenbrod
knew that the coffee machine in question did not
operate properly and was often messy. The record
also shows that Eigenbrod had not merchandised
the machine in accordance with company policy. i 3
Further, Eigenbrod's own testimony, as noted at
footnote 11, shows that the messy condition of the
coffee machine at Friendship Manor had previous-
ly been the subject of a discussion with a prior su-
pervisor during which Eigenbrod was told that it
was his responsibility to see to the proper cleaning
of the machine. Finally, both Glassco and Ange-
brandt testified, without contradiction, that inde-
pendent inspections at several locations serviced by
Eigenbrod, including Friendship Manor, revealed
that the machines were not being properly cleaned
or serviced. Thus, aside from hearsay evidence
cited by the judge, the record clearly reveals that
Eigenbrod's work, at least at times, was not satis-
factory. Unlike the judge, we do not view such in-
cidents as "essentially inconsequential ." Proper
maintenance and servicing of the various machines
were part of a routeman's job.14 Thus, we find that
13 Eigenbrod testified that he had been asked by several customers to
increase the machines' supply of soft candy bars, resulting in multiple
slots containing the same type of candy The record shows that company
policy favored a greater variety of snacks and candies
14 George Jones testified that a routeman was primarily responsible for
taking care of the vending machines at a customer 's place of business and
that it was his responsibility to fill and clean the machines
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was the Respondent's right to demand that the
machines were serviced in a manner it found satis-
factory. In light of the above, we find that the Re-
spondent had a legitimate basis for issuing Eigen-
brod a warning letter and subsequently discharging
him.15 We also find that the absence of any union
activity, for some time prior to Eigenbrod's dis-
charge, further suggests that the Respondent acted
for legitimate business reasons rather than in an at-
tempt to discriminate against Eigenbrod. Thus, we
find that the Respondent would have discharged
Eigenbrod even in the absence of his union activi-
ties. i s Accordingly, we find that the Respondent's
actions did not violate Section 8(a)(3) and (1) and
will dismiss this portion of the complaint. 17
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act, we shall order that
it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that George Jones was unlawfully
terminated on 5 January 1982, and that Paul Eigen-
brod's Saturday work was unlawfully ceased in
March-April 1982, we shall order the Respondent
to offer Jones full reinstatement to his former posi-
tion or, if that position no longer exists, to a sub-
stantially equivalent position without prejudice to
his seniority or other rights and privileges, and to
15 With respect to the incident at the Middlebelt Nursing Home which
allegedly precipitated issuance of Eigenbrod 's 15 June discharge letter,
the record shows that Glassco testified that he received a complaint from
a supervisor at the home regarding Eigenbrod 's attitude The judge found
this testimony hearsay and further found it not to be probative evidence
of Eigenbrod ' s unsatisfactory work performance However , we note that
the 15 June letter set forth two reasons for Eigenbrod 's discharge, i e , a
complaint about his attitude and recent observations of his poor work
habits As noted above , independent evidence supports the Respondent's
contention that Eigenbrod's work was unsatisfactory and, thus , irrespec-
tive of the hearsay nature of the testimony pertaining to the nursing
home incident , evidences a legitimate basis for issuance of the discharge
letter
16 Wright Line, 251 NLRB 1083 (1980)
" Member Dennis would find that the Respondent ' s warning and sub-
sequent discharge of Eigenbrod violated Sec 8(a)(3) Eigenbrod partici-
pated in union activity of which the Respondent was aware, and the Re-
spondent retaliated by discriminatorily denying him previously available
work Thus, the General Counsel established a strong prima facie case A
relatively short time later (less than 2 months ), the Respondent issued a
warning letter , and almost immediately thereafter the Respondent dis-
charged Eigenbrod In NLRB v Transportation Management Corp, 462
U S 393 (1983), the Supreme Court, endorsing Wright Line, 251 NLRB
1083 (1980), held as follows regarding the employer 's burden of proof
"It is fair that [the employer ] bear the risk that the influence of legal and
illegal motives cannot be separated , because he knowingly created the
risk and because the risk was created not by innocent activity but by his
own wrongdoing " Thus, the Respondent must do more than articulate a
legitimate reason for warning and discharging Eigenbrod Although the
Respondent advanced reasons that might normally be grounds for disci-
pline, the Respondent failed to "demonstrate that the same action would
have taken place even in the absence of the protected conduct ," Wright
Line, 251 NLRB at 1089, by, for example, introducing evidence or similar
treatment of other employees before the instant events Accordingly, the
Respondent failed to meet its burden
make both Jones and Eigenbrod (until the date of
discharge as an employee) whole for any loss of
earnings they suffered as a result of the Respond-
ent's unlawful actions. Loss of Jones' earnings shall
be computed in the manner prescribed in F W.
Woolworth Co, 90 NLRB 289 (1950), plus interest
for both computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).18
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
4 and 5, respectively, and delete Conclusion of
Law 6.
"4. By unlawfully discharging George Jones, the
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
"5. By unlawfully denying Saturday employment
to Paul Eigenbrod, the Respondent engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Pierre's Vending Company, Inc.,
Livonia, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating
against any employees for engaging in union or
protected concerted activity.
(b) Terminating an employee's work as an inde-
pendent contractor in order to penalize employees
for their participation in union or concerted activi-
ties protected by Section 7 of the Act.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
we find necessary to effectuate the policies of the
Act.
(a) Offer to George Jones immediate and full re-
instatement to his former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision.
(b) Make Paul Eigenbrod whole for any losses
he may have incurred as a result of the cessation of
his Saturday repair work up until the date of his
i a Isis Plumbing Co, 138 NLRB 716 (1962)
PIERRE'S VENDING CO
lawful discharge as an employee, in accordance
with the section of the decision entitled "The
Remedy."
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Livonia, Michigan facility copies
of the attached notice marked "Appendix."19
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
19 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for engaging in union or
protected concerted activity.
WE WILL NOT terminate an employee's work as
an independent contractor in order to penalize em-
ployees for their participation in union or concert-
ed activities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer George Jones immediate and full
reinstatement to his former job or, if Jones' posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to Jones' seniority or
1223
any other rights and privileges previously enjoyed
by him and WE WILL make both George Jones and
Paul Eigenbrod (until the date of his discharge)
whole for any loss of earnings they may have suf-
fered as the result of our discrimination against
them plus interest.
PIERRE'S VENDING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge The
charge in Case 7-CA-20312 was filed on February 16,
1982, by Local 337, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union or the Charging Party). A complaint
thereon was issued on March 29, 1982, alleging that
George Jones was discharged because of his union activi-
ties. The charge in Case 7-CA-20851 was filed on June
23, 1982, by Paul Eigenbrod, an individual. On July 27,
1982, an order consolidating cases and complaint and
notice of hearing was issued for both cases alleging that
Pierre's Vending Company, Inc. (Respondent, the Em-
ployer, or the Company) violated Section 8(a)(1) and (3)
of the Act by discharging Jones and Eigenbrod; by
eliminating Saturday work previously done by Eigen-
brod; and by issuing a written reprimand to Eigenbrod
concerning his work. Answers were timely filed to the
above complaints. Pursuant to notice a hearing was held
before the administrative law judge on March 7, 8, and
9, 1983 A brief was filed by Respondent which has been
duly considered.
FINDINGS OF FACT
1. EMPLOYER'S BUSINESS
The Employer is a Michigan corporation engaged in
the retail sale of food products via vending machines
throughout the Detroit, Michigan area. During the year
ending December 31, 1981, Respondent in the course and
conduct of its business operations, had gross revenues in
excess of $500,000 and purchased and caused to be trans-
ported and delivered to its Livonia, Michigan place of
business goods and materials valued in excess of $50,000,
which goods and materials were transported and deliv-
ered to its place of business in Livonia, Michigan direct-
ly from points outside the State of Michigan. The com-
plaint alleges, the answer admits, and I find that Employ-
er is an employer within the meaning of Section 2(6) and
(7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III ALLEGED UNFAIR LABOR PRACTICES
A. Facts'
1. Discharge of George Jones
Respondent employs about 17 people in the installa-
tion, supply, and servicing of food and beverage vending
machines in the Detroit area. Jones' employment began
in September 1970 as a route driver For the 10 years
prior to his discharge on January 5, 1982, Jones was em-
ployed as a vending machine mechanic He was the Re-
spondent's most senior employee
In late July 1981,2 Jones, along with route drivers Ei-
genbrod and Jeffrey Bowersox, determined to organize
Respondent's employees, and obtained authorization
cards from Local 299, International Brotherhood of
Teamsters. Shortly thereafter a meeting arranged by
Jones was held and attended by about 11 employees,
drivers and mechanics. All of the employees in attend-
ance signed authorization cards, including Jones and Ei-
genbrod. These authorization cards were to be returned
to Local 299. However, Bowersox lost some of the cards
and this was not accomplished
Within a couple of days after the signing of the Local
299 authorization cards, Eigenbrod received a telephone
call in the evening from Tom Kelso, president of Re-
spondent, who asked what was going on with the Union.
Eigenbrod told him that 90 percent of the employees did
not favor the Union and that personally he was not "to-
tally" in favor of it, that it was not the "total" answer to
the employees' problems Kelso also asked when all this
began and Eigenbrod told him that he had received his
card and information from Jones whereupon Kelso said,
"That's dust George [Jones] He has tried it before and
failed "
Subsequently Jones and Eigenbrod discussed the
matter of organization, and Eigenbrod obtained from a
friend authorization cards for Local 247, International
Brotherhood of Teamsters Eigenbrod brought the au-
thorization cards to work on December 30 He gave
about 10 or 12 cards to Jones and both Eigenbrod and
Jones distributed them to various employees, including
Greg Daley, route supervisor, who declined to sign a
card on the grounds that a union would not help him
since he was "management "3 Jones made no effort to
' There is conflicting testimony regarding some allegations of the com-
plaint In resolving these conflicts , I have taken into consideration the ap-
parent interests of the witnesses In addition , I have considered the inher-
ent probabilities , the probabilities in light of other events, corroboration
or lack of it and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit-
nesses with similar apparent interests In evaluating the testimony of the
witnesses I rely specifically on their demeanor and have made my find-
ings accordingly While, apart from considerations of demeanor, I have
taken into account the above noted credibility considerations , my failure
to detail each of these is not to be deemed a failure on my part to have
fully considered it Bishop & Malco Inc, 159 NLRB 1161
2 All dates refer to 1981 or 1982 unless otherwise indicated
3 Daley had been promoted from mechanic to route supervisor in No-
vember 1981 Daley reported to Stanley Glassco , general manager of Re-
spondent It was Daley's responsibility to see that the trucks were prop-
erly loaded before delivery Jones testified that in supervising the work
of the 8 or 10 route drivers, Daley had the authority to reduce the
amount of merchandise carried on the various routes or to vary the mix
of merchandise carried by them Daley also had the responsibility of
hide the distribution of cards from Daley, and Daley was
present when Jones distributed cards to several employ-
ees Jones returned the signed cards to Eigenbrod later
in the day on December 30.
On Thursday, January 5, 1982, about 5 15 p m , Jones,
who was on the road making service repair calls, made a
telephone call to Respondent and spoke to Glassco
Glassco asked him to come back to the office Jones sug-
gested that it was late and preferred to go home, but
Glassco persisted saying that he wanted to talk to him
Jones returned to the office some time after 5 30 p.m
and went into Glassco's office. Glassco told him that he
was being terminated and that Marie Kelso, the owner's
wife, was typing a discharge letter containing the reason
for his termination Kelso came into the office Glassco
went out and returned with the discharge letter which
read, "We have decide [sic] to have you dissmised [sic]
effective today 1-5-82, for reasons of incompetence and
incompatibility " This dismissal letter, dated January 5,
1982, was signed by Glassco. Jones asked what the
words "incompetence " and "incompatibility " meant.
Glassco defined incompatibility as meaning that he
"didn ' t get along with people ." Jones denied this and
Glassco recited an incident which had occurred some 5
or 6 weeks earlier , wherein Jones was attempting to
show Bowersox how to change the prices on cigarette
machines when Glassco appeared , told Jones to forget it,
that he would do it himself. Jones felt embarrassed and
went to Glassco's office to protest, which he did while
Glassco was having coffee with a friend and the friend's
wife Glassco testified that this embarrassed him, and
later he went to Jones telling him that his behavior had
been "totally inappropriate " According to Glassco,
Jones was too emotional and high strung . Jones concedes
that he was somewhat "hyper" and that he did holler
when he got upset which occurred at various times
when the work was not being done properly Jones testi-
fied that he has been that way all during his employment
with the Company.
Jones' checks for pay and vacation were not ready, so
Glassco asked him to return on the following day to pick
them up. On the following day, January 6, Jones went to
the office where he got the checks and also a letter of
recommendation signed by Glassco and Kelso, which
Glassco had offered to provide for him reading:
To whom it may concern.
George Jones was an employee of Pierre's Vend-
ing Co for approximately 12 years
During this time he has displayed several out-
standing qualities.
He is highly responsible , honest and hard work-
ing.
I'am [sic] sure he would be an asset to any orga-
nization.
monitoring the work of the routemen and the authority to take corrective
action when necessary While Daley himself did not testify , a careful
review of this record satisfies me that Daley was a supervisor within the
meaning of the Act
PIERRE 'S VENDING CO
On the day that he was fired, January 5, Jones called
Tom Curry, business agent for Local 247, to discuss his
discharge and Curry told him that the matter had been
turned over to Teamsters Local 337 A few days later
Carl Rawlings, business agent for Local 337 called him
About January 16 Jones and Rawlings met at a restuar-
ant, and Rawlings suggested that the discharge be taken
up with the National Labor Relations Board Rawlings
also had a stack of Local 337 authorization cards, he
asked Jones to have the employees sign them That day
or the next Jones went to Daley and asked Daley to give
the cards to Eigenbrod so that he could get all the em-
ployees to sign them Daley did so, and about a week or
a week and a half later Daley, receiving the cards from
Eigenbrod, returned them to Jones who returned them
to Rawlings the following day
Glassco testified that Jones was fired because of his
"resistence to the-my management of the Company."
Glassco testified to several incidents as contributing to
his decision to discharge Jones. First, Jones in conversa-
tion with Glassco in late September or early October
told Glassco that in making refunds for a dollar bill
change machine, suggested to the person at the location
[Eastern Airlines] that it was dumb for a person to put
$8 or $9 into a machine that had taken $1 or $2 already,
and that while making the refunds, it appeared that the
person he was talking to was the person seeking the
refund Glassco testified that he spoke to Kelso about
this and that Kelso said that he had been called by East-
ern Airlines about the incident and went out there to
"smooth the feathers." In another conversation with
Jones in late November 1981, they discussed a coffee
vending machine at Republic Airlines at Metropolitan
Airport This was a prototype machine being tested at
the request of the manufacturer. Glassco testified that he
discovered that the brewer worked only intermittently.
Jones suggested that this was the fault of the routeman
not cleaning the brewer, even though Glassco observed
that the brewer was clean. When asked why this was
reason to be dissatisfied with Jones, Glassco responded,
"Well, it illustrated two things to me One that if there
was a problem, his attitude was to blame it on another
employee The example being that I observed the brewer
was not working and I knew it was clean as a whistle
and he said, `well if the brewer jams or doesn't work it's
because the routeman didn't clean it.' So, the point that
he was incompatible with the other employees, that was
certainly in my mind and also in that it related to the
way I wanted to manage the company in terms of com-
petence I just didn't feel that our mission was to field
test this machine for National Venders And he seemed
to me to be more involved in making design suggestions
to National Venders than in securing sales from the
coffee machine at Republic which I thought was impor-
tant So in my mind, it really addressed the way I view
him in two different ways " The machine was later re-
turned because of customer complaints in December or
January
Respondent also alluded to a job in November done
by Jones in applying a wood-grain vinyl covering to the
front of a coffee machine However, Glassco, while re-
citing the difficulties involved in the accomplishment of
1225
that job, was not specific as to whatever derelictions
Jones may have been responsible for in performing the
job
In support of Respondent's contention that Smith did
not get along with other employees, Glassco testified
that on one occasion about the first of November, he
heard Jones shout at the office manager, Lynn Voldeck,
and call her "stupid," for failing to write down two cus-
tomer repair calls until the day after they came in
Glassco told Jones "that wasn't the proper tone of voice
to use to talk to her and if there was a problem with her
making a mistake on the calls that he should tell me
about it " Jones admits that he did call her stupid
In the same vein, Glassco testified that he heard Jones
berate a route driver, Russel Scott, for having dirty
vending machines because he was too lazy to clean
them. However, Glassco did not mention this matter to
Jones although he disapproved of this mode of criticism.
Glassco further testified that he was approached in mid-
October by Tom Angebrandt, who was working as a
helper for Jones in the same department. Angebrandt
complained that Jones was belittling his work, however
Glassco did not mention this matter to Jones. Ange-
brandt testified that Jones yelled at him concerning the
work and that Glassco told him to try to get along
2. Eigenbrod's discharge
Eigenbrod was hired on April 7, 1980. Prior to becom-
ing full-time route driver beginning in mid-January of
1982, Eigenbrod worked as a relief driver and truck re-
pairman. Shortly after he was hired, about June or July
1980, Eigenbrod first began to do truck repair work on
Saturdays, as well as during the week when time allowed
from his work as a relief driver. In mid-January 1982 Ei-
genbrod was assigned by Glassco as a full-time route
driver. However, he continued to perform some truck
repair work on Saturdays, working some 4 or 5 Satur-
days from mid-January 1982 until the time of the election
on March 26, 1982.
Some of Eigenbrod's union activity during the prior
organizational efforts and authorization cards solicita-
tions have been recounted above As to the solicitations
for Local 247, the authorization cards were turned in to
Curry, who advised Jones that Local 247 did not repre-
sent vending machine company employees, and that
matter was given over to Teamsters Local 337 and
Jones, as noted above, subsequent to his January 5 dis-
charge, met with Rawlings from Local 337 on January
16, obtained authorization cards from him, and left the
cards at Daley's house for Daley to give to Eigenbrod
for distribution. Daley gave Eigenbrod the cards, and Ei-
genbrod got about 10 cards signed by employees and re-
turned them to Daley Daley got the cards back to Jones
a week or so later and Jones turned the cards in to
Rawlings. Thereafter a petition was filed, on February
16, and an election was conducted on Friday, March 26,
which the Union lost. Eigenbrod served as the Union's
observer at the election. Immediately after the election,
having truck repair work that was unfinished, Eigenbrod
went to Glassco's office and asked if he should come in
the following day, Saturday, to finish the job. Glassco
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that he would not be needed on Saturday and
Eigenbrod left It is undisputed that from that time until
he was discharged on June 15, Eigenbrod did not work
on any Saturday
In about the first week of April, shortly after the elec-
tion, Eigenbrod, concerned about his employment with
Respondent, spoke to Glassco in Glassco's office. Eigen-
brod explained to Glassco that his purpose in voting for
the Union was job security and that he would still get
along with the Company and do what it wanted him to
do Glassco told Eigenbrod that he did not want any-
more problems, and that the problem with Jones was
that he was costing the Company money in attorney fees
because of the union activity in Jones' "case," presum-
ably the unfair labor practice charge filed on February
16, 1982. It was also during this conversation that Eigen-
brod was told that he would no longer be needed for the
Saturday truck repair work
About April 8, Eigenbrod testified that he spoke to
Marie Kelso, wife of Tom Kelso about 1.30 p.m. as she
was coming out of the office She told him that she had
heard he was quitting because the Union did not get in.
Eigenbrod told her that this was wrong.4
According to Glassco's testimony, he learned from
Kelso that a day or two prior to May 25, Voldeck re-
ceived a telephone complaint from Friendship Manor,
one of Respondent's customers and Voldeck relayed the
message to Kelso who went to Friendship Manor.5
Glassco further testified that he spoke to Kelso about
what Kelso had observed and prepared a memo dated
May 25, 1982 for signature by Toby Haskell, the new
route supervisor. The memo read:
On 5-24-82 the machines that you service at
Friendship Manor were inspected This inspection
occurred shortly after you serviced this account.
It was noted that the coffee machine was not
cleaned, inside or outside, and the snack machine
was improperly and partially serviced.
Since these sloppy work habits have been
brought to your attention in the past you may con-
sider this letter to be a final warning.
If future inspections of you [sic] work reveal the
same sloppy service you will be terminated
On May 25, Haskell gave the memo to Eigenbrod. Ei-
genbrod denies having sloppy work habitse and his unre-
butted testimony is that the problem at Friendship was
with a hot chocolate machine which spilled hot choco-
late on the front of the machine because of a malfunction
which caused the hose to come off. Eigenbrod testified
that the machines at Friendship were serviced by him
regularly twice a week on Tuesdays and Thursdays
Glassco never spoke to Eigenbrod about the May 25
letter
On June 14 or 15, about 10 am Glassco testified that
he was advised by salesman Russ Scott7 that a call had
been received from Middle Belt Nursing Home to "come
and get your machine ." Glassco testified that he went to
the nursing home and spoke to a woman he believes was
named Kelly, who he believes was the maintenance su-
pervisor who complained that the routeman responded
sarcastically when she expressed dissatisfaction with the
types of merchandise in the machine Further that he
continued to mar the stairs by using his handcart instead
of using the elevator as she had requested .8 Glassco was
not asked to remove the machines Glassco testified that
he then returned to his office and decided to fire Eigen-
brod.
After Eigenbrod finished work on June 15, he was
summoned by Glassco into Glassco 's office. According
to Glassco he told Eigenbrod that "the lady complained
about your attitude there and complained about your
using the stairs and I have decided to terminate you."
Glassco gave Eigenbrod a letter dated June 15, signed by
Glassco which read-
On 6/14/82 I received a serious complaint from
Middlebelt Nursing Home concerning your actions
at that location. It was reported that you repeatedly
ignored requests to use the elevator rather than the
stairway. It was also reported that you consistantly
[sic] display a sarcastic attitude there.
These actions in addition to the recent observa-
tions of your poor work habits constitute general
unacceptable behavior.
You have previously received a final warning
concerning these matters. I now must inform you
that you are terminated effective 6/15/82.
Glassco testified that in addition to the Friendship
Manor and Middle Belt Nursing Home incidents, certain
inspections made by him after the Friendship Manor inci-
dent of May 24 played a part in the discharge decision.
In this regard Glassco testified to inspections made by
him between the time of the warning letter of May 25
and the discharge on June 15 at customers' location serv-
iced by Eigenbrod at the Detroit College of Law and
the downtown Detroit YMCA. At the Detroit College
of Law, Glassco testified that he noticed that the ma-
chines were not properly "merchandised," that is, an in-
sufficient variety in the mix and arrangement of the
items. Glassco testified that he did not mention these
matters to Eigenbrod, but told Haskell to speak to Eigen-
brod about them Glassco testified that Haskell later told
him that he had spoken to Eigenbrod about it Haskell
himself did not testify at the hearing
Thomas Angebrandt, a vending machine repairman
testified that he was requested by Glassco, without ex-
planation, sometime in May9 to "check out" the vending
machines at Friendship Manor He did so and found
nothing wrong with them, but in reporting by telephone
back to Glassco, stated that the snack machine was low
8 Kelly did not testify
4 This testimony is unrebutted since Marie Kelso did not testify H While there is some confusion in Angebrandt 's testimony about exact
5 Neither Voldeck nor Kelso testified, so Glassco 's testimony as to this date , I credit the testimony of Glassco that he made the requests after his
event is obviously hearsay conversation with Kelso about the Friendship Manor incident on May 24
6 Haskell did not testify Thus , these checks took place some time between the date of the first
7 Scott did not testify warning letter (May 25 ) and Eigenbrod 's discharge (June 15)
PIERRE 'S VENDING CO
on product and the coffee machine was dirty. About a
week later Glassco told Angebrandt that the snack ma-
chine at Friendship was "down" and he went to repair
it. It did not need repair, but Angebrandt reported again
to Glassco on the appearance of the machines as defi-
cient in the same fashion as the time of his prior
"check."
3 Elimination of Saturday truck repair work
As noted above, in addition to becoming a route
driver in January 1982, Eigenbrod continued to do truck
repair work on Saturday. At the request of Glassco, Ei-
genbrod worked a total of about four or five Saturdays
between January 1982 and March 1982 Saturday work
was cleared with Glassco, who also checked to see if the
work was done.
Eigenbrod performed routine maintenance work while
larger jobs, such as transmission work, were sent out for
repair. It appears that Eigenbrod undertook to perform
the work on his own initiative, based on mechanical
problems brought to his attention by the route drivers. It
also appears that he worked alone, without supervision
Eigenbrod used his own tools and determined what parts
or materials were needed and Respondent provided the
money for Eigenbrod to purchase them, normally out of
petty cash Eigenbrod was not paid overtime for his Sat-
urday work He was normally compensated at the rate of
$80 or $90 per Saturday as a flat daily rate, regardless of
the hours worked Payment was by a Pierre's Vending
Company check signed by Sam Evola, an official of Re-
spondent, and later by Glassco The checks were drawn
on a general ledger account, not the normal payroll ac-
count which used a different bank. Payment for Saturday
work was made in this manner ever since Eigenbrod
began working on Saturday, beginning in July 1980 No
withholding for state or Federal taxes was made from
the checks, and the amounts were not regarded as
income by Respondent for tax withholding purposes
As noted above, Glassco told Eigenbrod immediately
after the election that he was not to work the following
day (Saturday), despite the fact that truck repair work
remained to be completed. Glassco testified that he had
made a review of the work procedures of Respondent
and concluded in late December or early January 1982
that the truck maintenance operations were "inefficient"
since trucks were sometimes out of use while Eigenbrod
was unable to repair them while being used as a relief
driver. At this time he made Eigenbrod a full-time route
driver, but Eigenbrod continued his Saturday truck
repair work. The decision to eliminate the Saturday
truck repair work was made by Glassco at the time he
spoke to Eigenbrod during the first week in April, in the
conversation noted above Glassco testified that it was
not "working out," and that Eigenbrod agreed with him
Eigenbrod, whose testimony I credit in this regard,
denied any agreement with Glassco to that effect Eigen-
brod's Saturday work was thereupon eliminated, but
repair work since, according to Glassco, has been per-
formed during the week by Respondent's employees no-
tably Angebrandt or, as to the major work, sent out for
repair. It is also undisputed that some truck repair work
1227
is still being done on Saturday by Respondent's employ-
ees
B Discussion and Analysis
1 Jones' discharge
The General Counsel contends that Jones was dis-
charged because of his organizing activity, while the Re-
spondent argues that he was discharged for reasons of
"incompetence and incompatibility " Having reviewed
the record herein, I am satisfied that the evidence does
not support the Respondent's position and that the Gen-
eral Counsel must prevail
First it is clear that in July 1981, Jones, along with Ei-
genbrod and Bowersox were responsible for union solici-
tation among Respondent's employees When the author-
ization cards were lost, the organizational effort subsided
until around December 30, when Jones and Eigenbrod,
having decided to revive the effort, again solicited au-
thorization cards for Local 247. This solicitation was
conducted with the knowledge and in the presence of
Route Supervisor Daley. Daley himself was solicited but
declined because he was "management." In addition,
Kelso's call to Eigenbrod a couple days after the original
card solicitation for Local 299 discloses not only that
Jones' union activity was revealed by Eigenbrod to
Kelso, but that Kelso was under the impression that
Jones had been active in a prior effort to organize Re-
spondent's employees Clearly Respondent was aware
that Jones was an active union adherent.
It remains to examine what factors induced Respond-
ent to discharge Jones Glassco testified about incidents
involving employees Bowersox (price changes on ciga-
rette machines); Voldeck (customers orders), Russell
(cleaning machines); and Angerbrandt (belittling his
work) While Kelso was at great pains to magnify the
impact of these incidents, any balanced reading of the
testimony makes it apparent that they were insignificant,
having little if any detrimental effect on Respondent's
operations The Russell and Angebrandt incidents were
not even called to Jones' attention Moreover, while one
could criticize the manner in which corrective action
was suggested by Jones in these incidents, the objective
was to improve the job performance of the employees in-
volved so as to better Respondent's operations Certain-
ly, Jones does not contend that he was a model of diplo-
macy in dealing with other employees, indeed he con-
cedes that occasionally he did become "hyper" and
holler at employees, but his personality, for better or
worse, had been the same during the entire 10 years of
his employment It is also significant to note that Jones
was the most senior and experienced of the Respondent's
employees and that the record reflects no prior discipli-
nary action and that in fact he was given a raise of $20
per week in October 1981, about 2 months prior to his
discharge
In these circumstances, the precipitous discharge of
Respondent's most senior and highest paid employee
within a week after soliciting authorization cards for
Local 247 for incidents for which I conclude were insig-
nificant persuades me that Jones was discharged because
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his union activity and not for reasons of "incompe-
tence" or "incompatibility "
2. Eigenbrod's employee status as to Saturday work
Respondent contends that as to the work performed
by Eigenbrod on Saturday, he was an independent con-
tractor and, as such, was not covered by the Act, since
only statutory employees are entitled to the protection of
the Act While it is true, as Respondent suggests, that the
question depends on an assessment of all of the incidents
of the working relationship, a review of the record
herein persuades me that such a review leads to the con-
clusion that Eigenbrod was a statutory employee of Re-
spondent, with respect to his Saturday work as well as
his regular Monday through Friday workweek.
In tracing Eigenbrod's employment background, it is
clear that until January 1982 he performed both route
delivery and truck repair work during the week as an
employee of Respondent as well as Saturday truck repair
at the flat rate. When he was assigned to full-time deliv-
ery work, the same type of truck repair work he had
done during the week and on Saturdays, he now did
only on Saturdays at a flat rate of $90 per Saturday.
Basically, as set out above, the same work was being
performed in the same fashion. The Saturday truck
repair work was supervised by Glassco to the extent that
Glassco cleared Eigenbrod to work and also determined
that the work had been accomplished Truck repair work
is still done by Respondent's employees during the week
as well as on Saturdays. Necessary parts and supplies are
paid for by Respondent. Eigenbrod used his own tools
Respondent contends that the manner in which Eigen-
brod was compensated indicates independent contractor
status as to the Saturday work. The record shows that
Eigenbrod was paid a flat rate by Respondent's check,
although drawn on a bank account different from Re-
spondent's regular payroll bank account. No deductions
for any purpose, tax withholdings, social security, or
fringe benefits were made from the check. However, fail-
ure to withhold these moneys does not confer independ-
ent contractor status on an employee, whatever legal
problems may result from failing to make such deduc-
tions from the pay of an employee.
In summary, a review of the entire record satisfies me
that the truck repair work done by Eigenbrod on Satur-
day was done as an employee of Respondent within the
meaning of Section 2(3) of the Act
3 Elimination of Saturday repair work
Beginning in January 1982 Eigenbrod was assigned a
regular delivery route during the week, but continued to
perform truck repair work on Saturdays, as he had done
in the past. What appeared to be a long-term satisfactory
arrangement was abruptly terminated on the day of the
election March 26, in which Eigenbrod had served as the
union observer.
Immediately after the election, upon inquiry by Eigen-
brod, Glassco told him not to come in on the following
Saturday (March 27) despite the fact that a truck repair
job remained unfinished. Formal termination of the Sat-
urday work was announced to Eigenbrod about a week
later, without prior notice or consultation by Glassco in
a conversation with Eigenbrod While Glassco testified
that this was a business decision, taken because the Satur-
day work was not "working out," there is little, apart
from this undocumented testimony, to support this asser-
tion Certainly any unsatisfactory aspects of the arrange-
ment had never been raised or discussed with Eigenbrod
In addition, Saturday work had been performed by Ei-
genbrod beginning in July 1981 Further, it appears that
truck repair work continues to be performed by Re-
spondent's employees and some is still being performed
by Respondent's employees on Saturdays
Since Respondent continued to perform truck repair
work with its own employees in the same fashion that it
did prior to Eigenbrod's termination, I find unconvincing
Respondent's contention that Saturday work was not
"working out" when it was done by Eigenbrod. In these
circumstances , I find that the elimination of Saturday
work was discriminatory within the meaning of Section
8(a)(3) of the Act
4 Eigenbrod's discharge
The General Counsel contends that Eigenbrod was
discharged because of his activity on behalf of the
Union
Respondent asserts that Eigenbrod was discharged be-
cause of sloppy work habits.
In reviewing Eigenbrod's union activity, it is clear that
he, along with Jones, was the earliest and most active
union supporter After Jones was discharged, it was Ei-
genbrod who solicited authorization cards for Local 337.
It is equally clear that Respondent was aware that Ei-
genbrod was so engaged, particularly since he had re-
ceived the Local 337 authorization cards from a supervi-
sor, Daley, and returned the cards to Daley for delivery
to Jones. In addition, Eigenbrod had served as the union
observer at the March 28 election and about April 8,
Marie Kelso told him that she had heard that he was
quitting because the Union did not get in. These factors
and a review of the entire record convince me that Re-
spondent was aware that Eigenbrod was active on behalf
of the unions involved in the organizational effort
As to the allegation of discriminatory discharge, Re-
spondent takes the position that sloppy work habits were
largely responsible for Eigenbrod's discharge, along with
his misconduct at the Middle Belt Nursing Home. Nei-
ther of the reasons are adequately supported by the pro-
bative evidence in the record
It is significant to note that only two witnesses testi-
fied on behalf of the Respondent, Glassco and Ange-
brandt, and Angebrandt's testimony concerning Eigen-
brod's was limited to his visual "checks" of Friendship
Manor. Obviously as to these incidents, which serve as
the basis for Respondent's decision to fire Eigenbrod,
Glassco could only offer hearsay testimony, notably as to
the Friendship Manor and Middle Belt incidents, the in-
cidents precipitating the warning letter of May 25 and
the discharge letter of June 15. Those with first-hand tes-
timony as to those matters did not testify. To this extent,
the evidentiary basis for Respondent's action is insuffi-
cient. The May 25 letter was written by Glassco based
PIERRE 'S VENDING CO
on information received from Kelso without any effort
to confirm or discuss the matter with Eigenbrod Nor
does the record contain any probative evidence to show
that Eigenbrod has been warned or discipined about
sloppy work habits in the past
Glassco and Angebrandt testified about the condition
of the machines at various locations, although the record
does not show whether or not the condition of machines
serviced by other route drivers were better or worse
Indeed I cannot conclude from this record that any fault
in the condition of the machines at these locations was
attributable to Eigenbrod, particularly since he testified
that he services the machines on a regular basis, and he
obviously could not be responsible for whatever usage
by customers might have contributed to the appearance
of the machines. Additionally, while Respondent has at-
tempted to magnify the significance of these incidents,
they appear to me to be essentially inconsequential, and
certainly no credible basis either for the precipitous
action in discharging him on June 15 or the issuance of
the May 25 warning letter
Accordingly, I conclude that by issuing the warning
letter of May 25 and subsequently discharging Eigenbrod
on June 15, Respondent has discriminated against Eigen-
brod in violation of Section 8(a)(3) and (1) of the Act, in
retaliation for Eigenbrod's efforts to assist in the effort to
organize Respondent's employees.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section
III, above, occurring in connection with Respondent's
operations as described in section I, above, have a close,
mitimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V THE REMEDY
1229
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act I have found that Respondent discharged George
Jones and Paul Eigenbrod for reasons which offended
the provision of Section 8(a)(3) of the Act I shall there-
fore recommend that Respondent make them whole for
any loss of pay in which they may have suffered as a
result of the discrimination practiced against them Back-
pay provided herein with interest thereon shall be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB
651 (1977) 10
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4 By unlawfully discharging George Jones and Paul
Eigenbrod, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
5. By denying Saturday employment to Paul Eigen-
brod, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. By issuing a written reprimand to Eigenbrod on
May 25, 1982, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act
[Recommended Order omitted from publication ]
10 See generally Isis Plumbing Co, 138 NLRB 716 (1962)