P.S.C. Resources, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1977

231 N.L.R.B. 233 (N.L.R.B. 1977)

P.S.C. RESOURCES, INC.
P.S.C. Resources, Inc. and Teamsters Union Local
25, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case I-CA- 11776
August 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On February 7, 1977, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and briefs, and Respon-
dent also filed a motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions, briefs, and motion and has
decided to affirm the rulings,' findings, 2 and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, P.S.C. Resources,
Inc., Watertown, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
I At the hearing, Respondent's attorney refused to allow Respondent's
manager, Lee, to testify as an adverse witness for the General Counsel,
thereby dishononng the subpoena duces tecum which had been issued to Lee.
Respondent's counsel challenged the validity of rule 61 I(c) of the Rules of
Evidence for United States Courts and Magistrates which the Board follows,
and thus prompted the General Counsel's motion to reject both Lee's
testimony and the subpenaed documents. At the conclusion of the General
Counsel's case, Respondent sought to introduce those documents into
evidence. The Administrative Law Judge reserved ruling on the General
Counsel's motion and permitted Lee to testify. In his Decision, however, the
Administrative Law Judge found it unnecessary to rule on the said motion
because, in his view, the General Counsel's failure to renew his motion
specifically in his brief to the Administrative Law Judge constituted a tacit
withdrawal of the motion. The General Counsel has excepted and contends
that Lee's testimony, insofar as it pertains to the allegations of the
complaint., should be stricken. We find ment to the General Counsel's
exception to the Administrative Law Judge's failure to rule on his motion.
However, since the Administrative Law Judge did not rely on Lee's
testimony and in view of the conclusions reached by the Administrative Law
Judge and adopted herein, Respondent's counsel's recalcitrant conduct did
not result in any prejudice to the General Counsel's case. We shall therefore
not grant the relief sought by the General Counsel.
2 In concluding that Lee's testimony was contradicted by his affidavit,
the Administrative Law Judge relied on a portion of the affidavit which was
read verbatim into the record at the hearing. Although Respondent states in
its brief to the Board that "Respondent's counsel attempted to introduce
into evidence the affidavit of John Lee to save time. It was excluded upon
231 NLRB No. 46
objection of the General Counsel . .," it does not appear from the record
that the affidavit was marked for identification or that a motion was made
for its introduction into evidence. Furthermore, the affidavit does not
appear in the record as a rejected exhibit. Accordingly. since there is, of
course, no allegation that the affidavit constitutes newly discovered or
previously unavailable evidence, we see no reason to reopen the record at
this time to receive Lee's affidavit into evidence, and we hereby deny
Respondent's motion to do so.
Respondent also has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Likewise, we find without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. There is no evidence
of record to indicate that the Administrative Law Judge prejudged this case.
made prejudicial rulings, or demonstrated a bias against Respondent or its
counsel in his analysis, treatment, or discussion of the evidence. Similarly,
Respondent claims that it was deprived of due process of law because, in
essence, the Administrative Law Judge complied with Jencks v. United
States, 353 U.S. 657 (1957), and then allegedly denied Respondent counsel
adequate time to examine the witnesses' preheanng statements at the
conclusion of their direct examination. Not only was the Administrative
Law Judge correct in applying the Jencks rule and rejecting Respondent
counsel's endeavors to abrogate that rule by seeking the preheating
statements prior to witnesses' direct examination, but a careful examination
of the record fails to substantiate Respondent's claim of inadequate
examination time.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This case was
heard on September 30 and October 1, 1976, at Boston,
Massachusetts. The complaint alleges that Respondent
violated Section 8(aX3) of the Act by discharging Thomas
Carleton on May 13, 1976, and further violated Section
8(a)(1) of the Act at various times in April and May 1976,
by giving employees an impression of surveillance of their
union activities, coercively interrogating employees, and
threatening and intimidating employees. Briefs were
received from the parties on or about November 23, 1976.
Based on the evidence presented at the hearing' and
after careful consideration of the briefs, I hereby make the
following:
FINDINGS
1. JURISDICTION OF RESPONDENT
Respondent is a Delaware corporation whose principal
place of business is located in New Jersey. Respondent
maintains a place of business at Watertown Arsenal
Building #37, in the town of Watertown, Massachusetts,
at which it collects and distributes in interstate commerce
waste oil and related products. The answer to the
complaint admits, and I find, that Respondent is an
employer engaged in commerce within the meaning of the
Act.
nI. THE STATUS OF THE LABOR ORGANIZATION
The complaint alleges that Teamsters Union Local 25,
a/w International Brotherhood of Teamsters, Chauffeurs,
Certain errors in the transcnpt have been noted and are hereby
corrected.
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
Respondent so conceded at the hearing. I so find.
III. RESPONDENT'S REFUSAL TO COMPLY WITH THE
SUBPENA OF JOHN LEE
On September 13, more than 2 weeks prior to the
hearing, counsel for the General Counsel issued a subpoena
duces tecum to Respondent's manager, John Lee, directing
him to appear at the hearing to testify and further directing
him to produce various documents relating to the years
1971-76, including personnel files, records concerning
production levels and bonuses, route sheets, documents
relating to the discharge or discipline of employees,
documents showing the management and supervisory
hierarchy of Respondent, and communications with the
Union.
At the commencement of the hearing on September 30,
Respondent's counsel filed a written motion to quash the
subpena, alleging that the subpena was "too broad in
time," "not relevant to the charges," "burdensome and
harassing," and, insofar as the personnel records of
employees not involved in the case were concerned, "an
invasion of privacy and violate the employer's privilege." 2
Since Section 102.31(b) of the Board's Rules and Regula-
tions provides that any person who intends not to comply
with a subpena "shall, within 5 days after the date of
service of the subpoena upon him, petition in writing to
revoke the subpoena;" since the petition was thus untimely
and since no good cause was shown for waiving this
requirement, I denied the motion to quash.
The hearing opened, counsel for the General Counsel
called Lee to the stand as his first witness, and counsel for
Respondent stated that he was refusing to allow Lee to
honor the subpena. It developed during argument that
counsel for Respondent had previously attempted to secure
from General Counsel copies of affidavits given by
witnesses whom the General Counsel intended to present
in his case-in-chief, a request which General Counsel
lawfully refused to honor. Respondent's counsel stated that
because he had thus not been made aware of the testimony
which would be offered against Respondent, he would not
permit Lee to "answer to specifics, under cross-examina-
tion, when he has never been confronted with any
knowledge as to the specifics of what he is supposed to
have said." A subsequent effort by General Counsel to call
Lee to the stand was similarly rebuffed.
At the completion of General Counsel's case, counsel for
Respondent announced that he was at that time willing to
make the subpenaed documents available to General
2 Respondent's counsel refused to concede at hearing that Lee had in
fact been served with the subpena, but nonetheless filed a motion to quash
the subpena. The subpena is in evidence, along with the return receipt
signed by "John Lee." The return receipt shows that the document was
stamped by the letter carrier as delivered on September 15. In the absence of
any evidence to the contrary, I shall presume regularity, as provided by Sec.
102.111 of the Board's Rules and Regulations and Statements of Procedure,
Series 8, as amended. In addition, as discussed hereafter, Respondent's
counsel agreed at the end of General Counsel's case to furnish both Lee and
the documents "[i In compliance with the subpoena."
:¢ The claim that the subpena was "too broad in time" probably had some
merit, as the circumstances were developed at the hearing. The record shows
Counsel, and further stated that he would allow Lee to take
the stand as a witness in General Counsel's case. General
Counsel, having twice attempted to call Lee during the
presentation of his case and having been twice refused,
stated that he would not call Lee at the time that he was
finally offered. He protested that Respondent was attempt-
ing to force him to present the government's case in a
manner contrary to the way in which the government
wanted to present it, and the natural consequence of
permitting Respondent to hear all of the government's
other evidence deprived General Counsel of the advantage
of calling Lee initially as an adverse witness under Rule
61 I(c) of the Rules of Evidence for United States Courts
and Magistrates. General Counsel at that point asked me
to draw "all negative inferences from [Lee's] earlier refusal
to testify, and his counsel's refusal to produce him to testify
or to produce the records which were subpoenaed when I
called for Mr. Lee and those records at the beginning of my
case." After some argument, General Counsel rested his
case.
Thereupon, Respondent called Lee as a witness. General
Counsel stated at that time that he would "object in
advance to any testimony this witness will give with regard
to matters as to which I would have examined him at the
time I called for him at the start of the General Counsel's
case . . . [and] to the introduction into the record of any
such testimony, as well as to the use of any records, which
are among those that were subpoenaed, and which the
Respondent refused to produce at the time I called for
them." I reserved ruling on the motion and permitted Lee
to testify.
It should first be noted that the motion to quash filed by
Respondent at the beginning of the hearing was obviously
spurious in most respects. Although the motion had
asserted that the requested documents were "not relevant,"
"burdensome and harassing in that the volume of docu-
ments requested are too cumbersome to be produced," and
"an invasion of privacy" insofar as personnel records of
employees not involved in the case were concerned,
Respondent was, at the end of General Counsel's case,
quite willing to produce the requested documents without
regard to those alleged disqualifying factors. 3
General Counsel had an unquestionable right to call Lee
as an adverse witness. The documents requested in General
Counsel's subpena, furthermore, were on their face rele-
vant and material to the 8(a)(3) complaint allegation, as
any experienced lawyer would have perceived.4 Had
Respondent filed a timely motion to quash the subpena on
the ground that it requested material preceding the present
ownership, that motion might have been granted, upon a
showing of the facts which would support the motion, and
that the company was taken over by new owners, probably in 1974, and that
Lee did not become a manager until 1975. Accordingly, insofar as the
subpena requested documents for the period 1971-76, it is likely that any
such documents preceding the tenure of the present ownership would not
have been material. Respondent's failure to file a timely motion to quash,
however, makes that argument moot. It should further be noted that the
stack of documents which Respondent's counsel eventually proffered at the
hearing, which he asserted were all the documents sought by the subpena
over which Lee had control, was a very small pile.
4 Respondent's chief counsel stated that he had been engaged in the
practice of labor law for 15 years.
234
P.S.C. RESOURCES, INC.
a new subpena could have been issued decreasing the
timespan of the original subpena. Respondent did not,
however, file a timely motion.
There appears to be ample basis in law for granting
General Counsel's motion to deny Respondent the right to
present testimony by Lee and to preclude Respondent
from introducing any of the subpenaed documents. 5 In
Bannon Mills, Inc., 146 NLRB 611, 633-634 (1964), the
employer had refused to comply with a subpena seeking
material records. General Counsel then proved his case by
presenting secondary evidence. Thereafter, the employer
"sought to introduce as part of its own case these
subpenaed, but unproduced, payrolls and other records
together with secondary evidence of other matters provable
by said records." The Trial Examiner held that both the
records and the secondary evidence were inadmissible. The
Board affirmed that ruling.
In the instant case, Respondent did offer to make Lee
and the subpenaed records available before General
Counsel rested his case. It is obviously improper, however,
for Respondent to attempt to order and manipulate the
timing and presentation of General Counsel's case in this
manner. This stratagem deprived General Counsel of the
advantage of attempting to draw damaging admissions
from Lee as an adverse witness, a valuable and time-
honored method of adducing evidence. In addition, had
General Counsel accepted the tardy offer of the docu-
ments, it conceivably could have meant that after inspec-
tion of the documents he would have been forced to recall
the witnesses previously presented by him in order to
testify about issues raised by the documents, which would
have substantially disordered the presentation of testimo-
ny. In International Union, United Automobile, Aerospace,
and Agricultural Implement Workers of America, UA W
[Gyrodyne Co. of America] v. N.L R.B., 459 F.2d 1329, 1338
(C.A.D.C., 1972), the court noted, "Indeed, in some
circumstances defiance of a subpoena may justify striking a
defense, cf Hammond Packing Co. v. Arkansas, 212 U.S.
322, 351 (1909), or completely barring introduction of
evidence on the point in question. Cf Rule 37(bX2Xii),
Fed. R. Civ. P."
General Counsel's helpful brief, however, does not renew
his motion to deny Respondent the right to present Lee in
its defense. He asks only that "all adverse inferences that
can be drawn from Respondent's noncompliance must in
fact be drawn." I regard this as a tacit withdrawal of the
I Respondent did not, in fact, offer to introduce any of the documents
during the presentation of Lee's testimony. At one point. Respondent did
attempt to refresh Lee's recollection by showing him a personnel record
pertaining to a discharged employee. I ruled that Respondent could not do
so, but by that time Respondent had already used the document for that
purpose. There are only a few other instances in which Lee's testimony
could be considered to implicate records, the most important of which is his
testimony that he had discharged some 14 or 15 employees since becoming
manager. Respondent did not attempt to introduce records in support of
that assertion, nor did it make an offer of proof as to what Respondent's
records might contain on that issue.
6 Lee replaced John Giordano, who then became a dnver. Respondent's
brief argues that Giordano, who testified for General Counsel, desired
revenge against his younger replacement, but the testimony of Respondent's
former general manager, William White, makes it clear that at least as of
May 1976, Giordano truly did not wish to be the manager.
? White was not located in Watertown. but visited there "once a month
motion to preclude presentation of the testimony. Accord-
ingly, I shall not rule on the motion.
IV. THE EVENTS PRECEDING THE DISCHARGE OF
CARLETON
Respondent is engaged in the business of refining waste
oil. At its Watertown, Massachusetts, facility, with which
we are concerned here, it collects waste oil, which is
thereafter shipped to one of Respondent's refineries. There
are only five drivers and a manager at the Watertown
facility, which is located in the Watertown arsenal. The
drivers might more properly be called "driver-solicitors";
their function is to find waste oil, at filling stations, etc.,
purchase it, pump it into their trucks, and return it to the
arsenal, where the oil is tested for purity, transferred into
tanks, and shipped out for refining.
The drivers are salaried and work a 40-hour week. They
have no mandatory quota of usable oil which must be
secured; however, if they bring in 6,000 gallons in a week,
they receive a $25 bonus, and, for 8,000 gallons, a $50
bonus. The drivers are authorized to pay up to 3 cents per
gallon for waste oil, but, of course, are encouraged to
secure the oil as cheaply as possible.
At the times relevant here, John Lee was the manager of
the facility, and had been since April 1975. Lee was not
himself an experienced solicitor, having served in that
capacity for only 4-6 weeks before being elevated to
manager. 6 One of the drivers during the relevant period
was Thomas W. Carleton, who began employment on
December 18, 1975, and whose discharge on May 13, 1976,
is alleged here to be violative of the Act.
In late February or early March 1976, after the drivers
had had a fruitless meeting, requested by them, with
General Manager William White about safety grievances
and benefits,7 they began, according to Carleton, "talking
union" "very frequently" in, among other places, the truck
yard (which is located inside a building) and the trailer
which served as Respondent's office. On one occasion, in
April, Carleton noticed Manager Lee "staring" at them
from 30-40 feet away. Giordano testified that Lee often
walked into their midst as the employees were talking. On
May 6, four of the drivers (Carleton, Anderson, Giordano,
and Purcell) signed authorization cards. Subsequently,
Carleton testified, during a conversation about the Union,
Lee "came walking right through us, while we were
standing there." One of the drivers indicated the need for
or something like that." Respondent refuses to concede that White is a
supervisor or agent of Respondent. White testified that at the time in
question he bore the title of "general manager." Lee testified that his
understanding of White's position was that "he was in charge of the
operations of the Palmer plant, and also in charge of the operation of the
Watertown." White came to Watertown at the request of the employees to
discuss their grievances and promised to communicate them to Respon-
dent's president, Russ Mahler. He also testified that he had received
approval for this trip from Mahler. White said that, when, in May, the
employees asked him whether he had made any progress on their previous
complaints, he told them "no, I hadn't." When he talked to Giordano in
May, after the discharge of Carleton, and the subject of the replacement of
Lee as manager was discussed, he admittedly asked Giordano "would you
be willing to carry the job until somebody moved in here...." Giordano
said, that, in White's words, "to help me out he would do it." Without
detailing other relevant evidence. there can be no question that White was
an agent of Respondent at all material times.
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
silence, but Carleton said, loudly enough for Lee to hear
him, that he "did not care if he heard what we were talking
about, because we already signed the cards."
David Purcell worked for Respondent from June to
November 1975, when he was discharged for consistently
bringing in small loads. He was rehired on May 5 (and
terminated again on May 20). As soon as he became
reemployed in May, he heard the discussions in the arsenal
about a union, and signed a card on May 6. "[M]aybe two
or so days" thereafter, Lee "asked me what I knew about a
union coming in or about anybody starting a union coming
in." Purcell said he knew nothing. Lee insisted that he
thought Purcell knew about the Union, and Purcell denied
it. Perhaps the next day, while Purcell was calling in from a
stop, Lee "asked me again what I knew about a union
coming in, and that he thought I definitely knew about it or
had some information." Purcell again disclaimed knowl-
edge.
John Giordano testified that "a few days after" May 6,
Lee asked him if he knew anything about the Union.
Giordano told him the employees wanted a union, and that
he had signed a card. Lee said, either at this or an earlier
time, that "they might close the place down if we tried to
get the union in." The last alleged remark had been made
in the course of several conversations in which Lee had
questioned him about a Union.
David Anderson recalled an occasion, perhaps a few
days after May 8, when Lee asked him "what I knew about
the union," and "did you start the union," and said, "I
know you hold a union card" (to which Anderson replied,
"You knew that the day you hired me"). Lee also asked
who gave Anderson the card. Anderson denied starting the
union, admitted signing a card, but said he could not recall
who gave him the card.
Manager Lee testified that he did witness the men
gathering to talk during the time referred to, but did not
know what they were talking about. That something
unusual was happening, however, is indicated by his
testimony that during the first 2 weeks of May, "[t]he
incidents of gathering could have been more frequent."
That these phenomena made such an impress on Lee belies
his statement that he was "[n ot really" paying attention to
the gatherings.
Lee further conceded that he did speak to the men about
union organization. He said that in, perhaps, September
1975, a company driver (but not one of his employees) told
him that "your men are organizing a union." Lee reported
this to Respondent's president Mahler, who told him to be
cautious in his conduct toward the employees ("you can't
threaten anybody"). Mahler also told Lee he "would like to
know if there are any union activities."
Because Mahler was "concerned," Lee would thereafter,
"once a month, once every two months," at random "just
ask a man in the morning, had he heard anything of union
organizing or anyone mention it to him."8 Lee received
only negative replies. He also admittedly mentioned to the
employees that he had heard that another of Respondent's
facilities had been closed down because of an attempt to
R On cross-examination, Lee restated the frequency as "about once a
month, a couple times a month."
9 Lee admitted, on direct examination, that he had "no information to
believe that that was the case where [he ] worked."
organize, and told them "if that is the attitude of the
company and you guys are organizing for a union, we are
all out of a job in the event that happens." 9 He "may have"
said this to each driver in "late 1975."
Lee further stated that, around the end of 1975, he heard
a rumor of a "more concentrated attempt" at organization
from driver Gary Cox. He called Mahler at home and so
informed him.
Lee testified, however, that he heard nothing further
about a union drive until about 4:30 or 5 on May 13, the
date of Carleton's discharge, when a Board agent called to
ask if he had received a copy of the letter and material
mailed by the Region on May 10 pursuant to a petition
filed by the Union.10 But despite this blanket statement,
Lee testified on cross-examination, and in some confusion,
that "there is a possibility" that driver Giordano could
have told him, prior to the discharge of Carleton on May
13, that the men were organizing a union.
Lee's candor with respect to having questioned and
threatened employees about a union during 1975 is
disarming; and I should say that Lee's demeanor was
generally convincing. But I do not think this display of
candor certified its own completeness. While Lee testified
that he received no information as to union organization
after late 1975, he did not testify that he ceased interrogat-
ing employees, and since he said that he asked employees
about unions "once a month, once every two months," I
assume that this continued into May, as the employees
testified. In view of Mahler's expressed "concern" and
instruction to gather information, the late 1975 information
about a "more concentrated attempt" at organization
would likely have impelled a "more concentrated attempt"
to discover information.
Carleton seemed an honest witness, and I credit his
testimony that he made a remark about signing "cards" in
sufficient proximity to Lee to be heard. Purcell was quite
impressive, and I credit his testimony, which both supports
findings of coercive interrogation and an impression of
surveillance ("he thought I definitely knew about it or had
some information") on or about May 10 or 11, and also
indicates, by its particularity, that Lee had some inkling
that a union was on the move again. The testimony of
Giordano in other respects raises some question of
reliability, but, on the basis of Lee's concessions, especially
that he might have heard from Giordano prior to the
discharge of Carleton that a union campaign was in gear, I
credit Giordano's testimony that Lee coercively interrogat-
ed him around May 7. Although Lee clearly violated the
statute by his threats of plant closure, the complaint was
not amended to allege such violations, and the testimony of
both Giordano and Lee as to the dates on which this
occurred is too unspecific to permit a conclusion that it was
within the Section 10(b) period. With a similar reservation
about Anderson's credibility, to be discussed infra, but for
the same reasons, I credit Anderson's account of being
coercively interrogated around May 10. I do not believe,
however, that the evidence given by Carleton and Giorda-
no preponderates in favor of a finding that, "by staring" at
10 Lee testified that the letter had not been received, and that it had been
sent to the wrong address.
236
P.S.C. RESOURCES, INC.
the employees or walking through their midst, Lee was
attempting to surveil the employees or to give them the
impression that their union activities were under surveil-
lance.
V. THE DISCHARGE OF THOMAS CARLETON
Thomas Carleton began work as a driver for Respondent
in December 1975. On May 13, Manager Lee received a
call from a Board Agent inquiring as to whether Respon-
dent had received a petition for election which had been
mailed from the Regional Office on May 10, and which Lee
had not yet received. Shortly thereafter, when Carleton
returned at the end of the work day, he was discharged.
The discharge is alleged to be violative of Section 8(aX3).
At the hearing, Lee took the position that the discharge
of Carleton was based on four incidents of improper
performance of duty by him, the latest of which had
occurred on May 12. Because of a stark conflict between
the testimony of Lee and a pretrial affidavit given by him
to the Board, I am somewhat doubtful about the necessity
for delving into the details of the four incidents. Lee
testified that when Carleton returned from work on May
13, was told that he was terminated, and asked for the
reason, Lee "cited the Gulf incident, the Boston Fuel
incident, and the New Hampshire" incident. However, an
affidavit given by Lee to the Board on June 8 states that
when Carleton asked for a reason, "I told him he had tied
up two trucks [the Boston Fuel incident], and then asked
him for his keys and equipment." The affidavit nowhere
makes mention of any other incidents which were related
to Carleton as a predicate for his discharge. At the hearing,
as indicated, Lee testified that he had in fact mentioned
several incidents to Carleton on the day of discharge, and
he repudiated his affidavit. A clearly intelligent man, Lee
gave no explanation of why he would have told the Board
Agent less than 4 weeks after the event that he had
mentioned only one incident to Carleton if in fact he had
referred to three. Carleton testified that Lee gave only the
reason that he had ruined a day's work for drivers Purcell
and Anderson (the Boston Fuel incident); on cross-
examination, Lee expanded his testimony to agree that he
might have been this specific. Despite my misgivings,
however, I shall consider and analyze each of the incidents.
In February 1976, Lee instructed Carleton and Anderson
to go to the Gulf Oil separator in Chelsea, Massachusetts,
to check on some reportedly usable waste oil. After arriving
there, Carleton and Anderson concluded that the oil could
be skimmed off the water and told that to Lee. Together
with another driver, Manchester, the employees filled up
two trucks, taking about 5,000 gallons of liquid. When they
returned the oil to the yard, Lee, as he customarily did,
tested the liquid and concluded that there was too much
water in it to salvage any appreciable amount of oil. The
fluid was dumped into a trailer.
At the hearing, Lee cast blame for the collection of faulty
oil on Carleton. He took the position that Carleton was in
charge of the Gulf pickup. There appears to be no basis for
this attribution of fault. This was not a source discovered
I The complaint contains no specific allegations that such conduct by
Lee was violative of the Act.
by Carleton. Lee had ordered Carleton, Anderson, and
Manchester to go to this potential supply of waste oil. At
the time, Anderson had been in Respondent's employ for 8
months, Manchester was, according to Anderson, senior to
him in service, and Carleton had been employed only 2
months. Lee testified that in talking to the three men about
the incident, Anderson and Manchester had both excused
their own failure to properly test the oil by saying that they
thought Carleton was in charge of the operation. Anderson
denied having made such a statement to Lee.12 Even if
Anderson and Manchester had made such a statement,
Manager Lee, knowing the background of the incident,
clearly had no reason himself to think that Carleton was or
should have been in charge. He testified, in fact, that "both
these men knew better, all three of them did in fact." Thus,
to later hold primarily against Carleton, an employee with
only 2 months' tenure at the time, a mistake shared by
more senior employees, seems plainly a sham. In addition,
Anderson testified, without contradiction, that the load
was later sold as "spray oil," which indicates that
Respondent recovered some of its investment.
The second incident relied upon by Respondent oc-
curred in March. Lee instructed Carleton to drive a diesel
truck rather than his regular truck. Carleton testified that
he was reluctant to do so because he thought that the truck
was unsafe and might tip over. Lee testified that Carleton
had said the truck was too noisy. Carleton admitted that he
argued with Lee about the matter, but they both agree that
he finally give in and drove the truck for several days,
although as Lee testified, Carleton "wasn't happy about it."
The third incident occurred one day in April, when Lee
instructed Carleton to pick up a known cache of oil in New
Hampshire and to tour the area in search of more oil.
Carleton protested, on the grounds that he was unfamiliar
with the territory and that Respondent's competition was
well entrenched in the New Hampshire area. Carleton
nonetheless left on the route. He testified that he made the
assigned pickup and then stopped at some 10 to 15 places,
in an effort to secure waste oil. However, he found none.
At about 2:30 or 3 o'clock that afternoon, Lee happened
to see Carleton sitting in his truck on North Beacon Street.
Carleton returned to the yard about 4 p.m. Lee asked why
Carleton had been on North Beacon Street and Carleton
replied that he had been eating lunch, which, he testified,
was the fact. Lee became angry and told Carleton that he
was not entitled to a lunch break. There is testimonial
agreement between Carleton and Lee that a discussion
followed about the amount of effort that Carleton should
put into the job. I credit Carleton's testimony that he told
Lee that he was hired only to work a 40-hour week and
would work no more hours than that. Lee testified that he
told Carleton that, after leaving New Hampshire, he should
have explored his own territory in Boston, and Carleton
replied that he had completed a day's work and "was not
going to bust his hump running all over Boston looking for
more oil." That also may well have been said. Carleton
testified that Lee said he was "happy" with Carleton's
production; Lee testified that he "may have said" that
Carleton was "doing well."
12 Manchester did not testify at the hearing.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees keep logs of stops made by them.
Carleton left the office for a short time, and Lee called four
of the stops listed by Carleton as having been made by him
in New Hampshire. Lee testified that two of the stops
reported that Carleton had not been there that day.
Carleton testified that he told Lee at the time that the
persons he had spoken to must have been mistaken, but he
admitted at the hearing that he had falsified one of the
entries in order to avoid "static" from Lee. Lee testified
that they again discussed production, and that Carleton
stated that he would only obtain "6,000 gallons to keep you
happy," but that he would not attempt to procure more
than that. As noted, employees who procure as much as
6,000 gallons a week receive a $25 bonus. Carleton did not
attempt to deny this in rebuttal and it seems likely to me
that Carleton may have made such a statement.
The final incident relied upon by Respondent, which it
claims was the precipitating cause of the discharge of
Carleton, was the "Boston Fuel" incident. On May 11,
Carleton discovered, at the Boston Fuel Transportation
separators, what appeared to him to be a large supply of
usable waste oil. Because of the size of the batch, Carleton,
instead of purchasing the oil on his own, told Lee of his
find, and Lee asked Carleton to get a sample of the oil. Lee
testified that Carleton did so, after work on the evening of
May II, and brought the sample to him the next morning.
Lee tested the oil sample by using a centrifuge test and
concluded that the oil was of a high quality. It was Lee's
thought to send a large transport trailer to pick up the oil,
but Carleton told him there was no room at the separators
for such a vehicle. Accordingly, Lee told Carleton and
Anderson to go to Boston Fuel in their trucks. At the
separators, the two men filled their trucks. A "skimming"
method was used, in which, as each truck was being filled,
the driver of that truck would stand on the top of his truck
and watch the oil, which was coming into the truck through
a hose being held by the other driver.
Upon their return to the Arsenal, Lee tested the loads
and pronounced them 'junk." He told Carleton and
Anderson to dump the oil. Since oil and water have a
tendency to mix while being driven, the two drivers
convinced Lee to allow the oil to settle overnight in the
trucks. Lee agreed to do so. The next morning, both the
drivers and Lee tested the trucks for salvageable oil.
The record is unclear as to the amount of usable oil
found in the two trucks after the overnight separation.
Carleton, whose truck, according to Anderson and Lee,
had a 2,400 gallon capacity, testified that he tested his own
truck and found that it contained 900-1,000 gallons of
good oil, but that Lee "short-sticked" him in making his
own test and gave him credit for only 700 gallons.
Anderson testified that his own truck, which had a 2,500-
gallon capacity, showed 2,300 gallons of usable oil by his
own test, but that Lee only gave him credit for 1,600. Lee's
testimony indicates that Carleton's truck contained more
than the 700 gallons for which Carleton received credit; he
testified:
A:' It should he noted that although Lee referred to all four incidents in
his initial explanation of the discharge on direct examination, in later direct
examination he stated that he fired Carleton because of "a combination of
Gulf, and Boston Fuel and a combination of the incident where he was
Q. Do you remember the approximate propor-
tions?
A. The total number of gallons would be returned
to Boston Fuel was 21 or 2,200 gallons, and Dave had,
Dave Anderson had about 900 [or] 950 in his, so the
balance of the 1,200 gallons or so of water would have
been Carleton's.
Q. How large a truck did Carleton drive?
A. 2,400 gallon tank.
Lee subsequently reaffirmed that of the 4,900 gallons
collected, 2,100-2,200 were returned to Boston Fuel.
At Carleton's suggestion, Lee called Boston Fuel and
told the company that Respondent had not gotten all that
it had paid for. Boston Fuel cooperatively agreed to
reimburse Respondent for the 2,200 gallons of water taken
from its separator. On the morning of May 13, the water
was pumped out of the trucks used by Carleton and
Anderson into the large capacity truck manned by Purcell.
Purcell was assigned the task of returning the water to the
Boston Fuel facility. The truck being operated by Purcell
was equipped with a "fine" strainer, a problem which
Purcell had complained about to Lee on at least two
occasions shortly prior to May 13. When Purcell reached
the Boston Fuel location and attempted to discharge the
load of water, he found that the water contained consider-
able impurities, and because of the nature of the strainer, it
took him some 5-5-1/2 hours to unload his truck.
According to the testimony of Anderson, he left for work
on his regular route at about 10 a.m., as, presumably, did
Carleton. When Carleton returned at the end of the
workday, he was discharged by Lee.
I find it inconceivable that Carleton was discharged
either solely because of the Boston Fuel incident, the only
reason assertedly mentioned by Lee to Carleton on May
13, as set forth in the affidavit given by Lee shortly after
the event, or because of the combination of that incident
and the other three briefly described above.13
The Gulf Oil episode was seemingly a trivial error of
judgment for an employee who had been on the payroll
only 2 months at the time. Lee's effort at the hearing to
claim that Carleton was responsible for the operation has
no basis in fact, and is contrary to the normal division of
responsibility between a novice and more experienced
employees like Anderson and Manchester. Although it is
obvious that, in March, Carleton was grudging in his
compliance with Lee's instruction that Carleton drive the
diesel truck, the fact is that Carleton did accede to Lee's
command, and it is obvious that the incident was one of
the minutiae of a daily working routine. As noted, in his
testimony, Lee at one point forgot about this incident
completely.
The New Hampshire occurrence was of a more serious
nature. Carleton accomplished very little on the day that he
was sent to solicit oil in New Hampshire. He was seen by
Lee having lunch in his truck when Lee, according to his
testimony, thought that Carleton should have been out
looking for oil. He was caught by Lee in a falsification of
caught on North Beacon Street." When General Counsel recapitulated the
three reasons at the beginning of his cross-examination, Lee added "the
incident also of the truck 37, which he refused to dnve. which was left out."
238
P.S.C. RESOURCES, INC.
his log, involving two stops in New Hampshire that,
according to Lee's information, he had not made. When
they discussed his performance on that day, Carleton
probably indicated that he was not going to overly exert
himself at the job. There are, however, aspects of overkill
and exaggeration in Respondent's attitude towards the
New Hampshire affair. For example, although Lee seemed
to believe that most of the drivers ate lunch only as they
were driving along, there was no rule forbidding Carleton
to stop and have lunch, and Lee testified "if he wanted to
stop for lunch, he should have done so when he was on the
road." The fact that Carleton stopped on Beacon Street
rather than "on the road" seems immaterial.l4
Lee's testimony on direct examination was that Carleton
had taken an unmistakable stance that he would not "bust
his hump" for the company. According to Lee, they drank
some beer and discussed the matter; Lee hoped that
Carleton would express contrition and a resolve to "change
[his] way," but "he didn't. He left feeling pretty much the
same way he did when we first started talking." However,
on cross-examination, Lee, when asked to explain why he
did not fire Carleton at that time, contradictorily testified
that by the end of the conversation, Carleton had
"mellowed." Furthermore, it is difficult to understand why
Carleton's threat to limit himself to 6,000 gallons per week
was perceived as a serious abdication of his duties; if
Carleton had carried out his "threat," he would have won a
bonus every week.
But if the New Hampshire business was not without its
ostensibly serious elements, I am at a loss to understand
why Carleton was not fired for that incident rather than for
what occurred with the Boston Fuel load. For the Boston
Fuel incident was at worst a slight and well-intentioned
misjudgment, having very few reverberations. Carleton
believed that he had spotted a promising source of supply
and, as Lee testified, after work and on his own time, had
gone to Boston Fuel to get a sample of the oil, as directed
by Lee. Carleton did not err in taking this sample;
according to Lee, "there was nothing wrong with the way"
Carleton took the sample. The problem, Lee said, was that
Carleton should have paid closer attention to what was
coming into the trucks when he and Anderson were
pumping out the supply.
It may well be that Carleton committed an error on this
score, but so did Anderson, as Lee testified. There is
nothing in the record to suggest that the two men were not
making an earnest effort to bolster their production records
and to find good oil. Although there was a large amount of
water in the Boston Fuel load, Respondent incurred no
monetary loss therefrom. Carleton suggested to Lee that he
attempt to get reimbursement for the water from Boston
Fuel, and Boston Fuel agreed to make such reimburse-
ment. Some 1,600 actual gallons of usable oil were pumped
out of Anderson's truck, which was within Anderson's
normal average of 1,500-1,800 for a day's work. As
discussed above, perhaps as much as 1.200 gallons of
usable oil were taken from Carleton's truck, according to
14 That the drivers were entitled to stop for refreshment is indicated by
Lee's testimony that when he first saw Carleton on Beacon Street, he
accepted it as within the norms of appropriate behavior, thinking, "well,
maybe he had come back from New Hampshire and stopped to grab a cup
Lee's testimony quoted above, which matched or exceeded
Carleton's daily output of 1,100-1,200 gallons.
In the end, the complaint against Carleton appeared to
be found in Lee's testimony that the misjudgment "delayed
actually three trucks," Carleton's, Anderson's, and Pur-
cell's.'5 Why the misjudgment is laid at Carleton's
doorstep, rather than the more senior Anderson's, is
unclear, since the fault concededly lay not in taking the
sample, but rather in monitoring the flow of oil into the
trucks. But the only delay of Carleton and Anderson
occurred on the morning of May 13 when they pumped
water from their trucks into Purcell's truck, and they were
on their way to perform their regular duties by 10 a.m. That
some delay was occasioned to Purcell, who spent 5 or more
hours pumping out the water at the Boston Fuel location,
must have been recognizable to Lee as attributable to
himself as much as to anyone. He chose Purcell's truck for
the purpose. He testified that Purcell's truck was not the
only one capable of holding the 2,100 gallons of water.
Purcell credibly testified that he had complained to Lee
about difficulties with his strainer, which Lee might have
well foreseen as a source of problems when he assigned
Purcell to the task, since Lee conceded that there are
"frequent impurities" in waste water which could have
been anticipated to clog Purcell's fine strainer. That Purcell
was regarded as dispensable is indicated by his known poor
productivity and Lee's testimony that Purcell was not "a
regular driver" but "was in as a spare."
Carleton was not discharged until the end of the
workday on May 13, shortly after Lee had received a
phone call from a Board agent stating that a representation
petition had been filed. Apparently to avoid the obvious
inference arising from the coincidence, and to make it
appear that the incident of May 12 had been the
precipitating cause of Carleton's discharge, Lee testified
that he made the decision to discharge prior to the phone
call: "I would say the evening of the 12th, the morning of
the 13th." Lee's testimony in this regard is most unsatisfac-
tory. Asked why he did not fire Carleton on the morning of
May 13, since the Boston Fuel occurrence was completed
the day before, he said, "I didn't feel like it." That is not
very much of an explanation. Moreover, as discussed
above, the only palpable loss to Respondent from the
Boston Fuel incident was the time spent by Purcell
attempting to drain off the water at the Boston Fuel
location, but that unexpected delay was not known to or
expected by Lee on the evening of May 12 or the morning
of May 13; he testified that, normally, it should not have
taken Purcell more than a half hour to pump off the water.
Accordingly, since, as of the morning of May 13,
Respondent had suffered no pecuniary loss from the
Boston Fuel load, and had received perhaps as much as
2,800 gallons of usable oil from Carleton and Anderson as
a result of that pickup, and the only time lost as of the
morning of May 13 was that used by Carleton and
Anderson in pumping off the water from their trucks, there
appears to be simply no explanation in practical terms for a
of coffee, and he is going to go around his own area in Boston and pick up
more oil."
1i Lee testified that the amount of oil taken "was not the issue at the
time."
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to fire Carleton to have been made as of that
morning. At that time, at worst, there had simply been a
misjudgment on Carleton's part with no detriment to
Respondent. To the extent that Lee testified he held the
whole incident against Carleton because "it was Mr.
Carleton's idea to do it in the first place," it should be
recalled that, as noted above, Lee testified that "there was
nothing wrong with the way" Carleton took the oil sample,
but that he should have detected that he was pumping an
inordinate amount of water along with the oil while he was
removing the liquid at the Boston Fuel location. That, of
course, has nothing to do with it being "Carleton's idea to
do it in the first place."
Lee was open and candid about Carleton's excellent
performance as a driver. Carleton was usually the second
or third highest producer among the drivers. Lee testified
that Carleton "was the kind of guy that could go out and
pull 6,000, 7,000, 8,000, maybe more than that gallons of
waste oil a week. And he knew where to go and get it and
he knew how to do a good job .. ." Carleton would collect
"at least 1,000 gallons of oil a day and many times more
than that, a lot more than that." Carleton "frequently"
used to receive a bonus for his week's work. Carleton
displayed ambition and aggressiveness:
Some people take to it and they start from the very first
day. In Carleton's case, not only going out and doing
the job, but formulating a route and writing down every
stop, where it is, and how many gallons you can get
there, above and beyond what you would normally
expect a driver to do. And in that case you make
exceptions.
It is also clear that the dominant imperative of Lee's job
was to collect as much waste oil as possible. He described
the standard that was set for him in terms of production as
being "to pick up as much waste oil as you possibly can."
Despite the fact that, in the New Hampshire incident, Lee
had assertedly discovered Carleton loafing on the job, not
bringing in any oil other than that he had been dispatched
to collect, lying about the number of stops that he had
made that day, and indicating that he would not make an
all out production effort, Lee explained that he had not
discharged Carleton then because "I needed the oil." Since
Carleton was clearly a good and consistent producer, and
since Lee blithely ignored his derelictions in the New
Hampshire incident in the interest of retaining a productive
employee, I find it incredible that he would have been
persuaded by the trivial Boston Fuel incident, in which the
company lost virtually nothing, to discharge a proven
capable employee. In view of the expressed need for
production as the single motivating force of the operation,
Carleton's sudden discharge is made even more suspect by
the fact that Lee had no replacement in mind for him when
he fired him on Thursday, May 13.
A most instructive contrast is the case of David Purcell.
Purcell testified, without contradiction, that he worked for
Respondent as a driver for 5 months in 1975. During that
time, Purcell's average collection of oil was about 650
'" It is myjudgment that Lee would not have made such remarks, in such
a concerted manner, without prior sanction.
gallons a day. Compared to Carleton's average of 1,000-
1,200 gallons, Purcell fares quite badly. Nonetheless, Lee
tolerated Purcell's consistently poor production, which did
not vary during his initial tenure, for 5 months before
terminating him. Although Carleton may have indicated in
April that he was not going to commit himself body and
soul to the solicitation of waste oil, Lee could not testify at
the hearing that Carleton's production had deteriorated
between that time and the date of his discharge. And yet,
for the negligible losses incurred by Respondent as a result
of the Boston Fuel incident, which certainly could not have
been considered by any objective standard to have been
other than simply a judgmental error, Lee rid himself of a
valuable employee who had plainly established his useful-
ness. The record further shows that Purcell was rehired on
May 5, indicating that Respondent was short-handed, and
also shows that when Purcell was told by Lee on May 20
that he would not be needed, it was because "he had a man
to drive the truck, a man I had been training for a couple of
days." Thus, even Purcell was not discharged until a
replacement had been secured for him.
The reasons given for the discharge of Carleton seem so
baseless and pretextual to me that I think the rule of
Shattuck Denn Mining Corporation (Iron King Branch) v.
N.LR.B., 362 F.2d 466, 470 (C.A. 9, 1966), may properly
be invoked:
If [the trier of fact] 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 motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
Lee's admission that, on two previous occasions, he had
been told about efforts at unionization by the employees
establishes that he had sources. It is quite possible that
when Carleton said, in Lee's proximity, shortly after the
employees had signed union cards, that he "did not care if
[Lee] heard what we were talking about, because we
already signed the cards," Lee heard and understood, and
may have garnered from that remark that Carleton was a
leader of the union effort. The record shows that Anderson
as well as Carleton played an active part in the effort to
organize, but the overheard remark may have lent special
emphasis to Carleton's role. Respondent's keen interest in
the union oriented activity of its employees is revealed by
President Mahler's instructions to Lee to keep abreast of
the situation. Its likely attitude toward possible organiza-
tion of the employees is manifested by the threat of plant
closure delivered to each of the employees, most probably
with Mahler's approval.16 The anxiety and union animus
thus displayed found expression in the precipitate termina-
tion of Carleton on May 13, an action which, as explained
by Lee, simply defies business commonsense and which
may properly be ascribed to the information just previously
received by Lee that the employees were now doing more
than talking about a union.
240
P.S.C. RESOURCES, INC.
There is in the record direct evidence of employer
knowledge and motive. Employee Giordano testified that
the day after Carleton was discharged, he had a conversa-
tion with Lee in the office trailer; Anderson was possibly
present. Lee "told me that he knew who the troublemaker
was on the union; and right off the bat, the way he looked
at me, and the way he had me sitting opposite him, I
figured he was blaming me, but I didn't say anything."' 7
Giordano then left the trailer.
Later that day, according to Giordano, General Manager
White, who was talking to the men about their unsettled
grievances, told Giordano, whom he had known for 25
years, that he wished to converse privately with him. White
asked, as he had done previously, whether Giordano would
accept the post of manager; Giordano declined the offer,
mentioning, inter alia, that there would be problems with
the Union which he did not care to confront. At the close
of the conversation, Giordano said, "I think I'm being
blamed for the Union." White replied, "No. We know it
was Tom Carleton, and he's all through." Anderson had
walked up next to the two at that time. In subsequent
testimony, Giordano said that when he had mentioned
possible "problems" which might be caused by the Union,
White had said there would be none, since the company
had gotten rid of the instigator, but that White had not
given a name to the instigator. It was only later in the
conversation, when Giordano mentioned his concern that
he was being blamed for the advent of the Union, that
White referred to Carleton.
Apparently intended as support for Giordano's testimo-
ny about his conversation with Lee on the day after
Carleton was terminated, Anderson testified that Lee "said
to me that-and Giordano that he knew who the instigator
was in the union and they got rid of him." Anderson was
obviously confused here. He testified that this occurred
"about May 8," "right after the meeting with Walsh," the
union representative with whom the employees had met on
May 6, the day they signed cards. Plainly, since Carleton
was not discharged until May 13, Lee would not have told
Anderson and Giordano on May 8 that "they got rid of"
the instigator. I think that Anderson was clearly confused
and was attempting to refer to the later conversation with
White on the day after Carleton's discharge. He subse-
quently testified that on that day, he was nearby when he
heard Giordano ask White, "Do you know that Mr. Lee is
blaming Anderson and myself for the union?" to which
White replied, "Don't worry. We know you didn't do it.
We got rid of the troublemaker and the instigator-
Carleton."
Anderson further testified to a conversation with Lee, 2
days after the discharge, in which Lee asked him "why
Carleton started the Union, what he thought he was going
I7 Giordano testified that he had left early the preceding day and had not
known, at the time of this conversation, that Carleton had been discharged.
I' Respondent's brief assumr s that Anderson was here referring to the
conversation testified to by Giordano as occurring on the day after the
discharge, but the context and the date given by Anderson ("two days after
Carleton was fired") makes it plain that Anderson was speaking of a
separate conversation between him and Lee.
'9 Respondent argues that certain testimony by Anderson on cross-
examination constitutes a repudiation of his prior certainty that White had
said Carleton was discharged because of his union activity. The passage
reads:
to benefit out of it." When Anderson asked what made him
think that Carleton initiated the campaign, Lee "smirked at
me and said, 'I know.' "s8
It is clear that the testimony of Anderson and Giordano
about what seems to be a conversation with Lee on the day
after the discharge of Carleton is not easily reconcilable.
The testimony of Giordano and Anderson that they did
not tell any union officials about these incriminating
remarks, even though they had ample opportunity to do so
at a meeting a few days after the discharge, and relayed the
statements to no one until they talked to a Board agent in
September, makes their testimony plainly suspect. I further
tend to agree with Respondent's argument that White, a
management representative with many years' experienced
in dealing with unions and no longer in Respondent's
employ at the time of the hearing, would not likely have
made the incriminating remarks attributed to him by
Giordano and Anderson, which he denied.
And yet, despite the obviously confused state of
Anderson's testimony, I found him to be an extremely
impressive witness, brash, self-possessed, and spontane-
ous.19 To only a slightly lesser extent was I impressed with
Giordano. The issue as to whether they heard these alleged
statements is a finely balanced one. I have decided to make
no positive findings that such statements were made. This
is not to say that I credit White and Lee or discredit
Anderson and Giordano; those are labels which are not
easy to affix in these circumstances, and if I should use
those magic words, it would simply be a close judgment
call on a difficult decision as to which I have set forth all
the relevant factors. In the circumstances, I see no need to
rely on that precise testimony or to base 8(aX)(1) findings on
that testimony. In this connection, however, Lee gave an
answer to a question which, in my view, is nearly as
revealing with respect to Respondent's motive as the
testimony of Anderson and Giordano referred to above.
The following colloquy took place on direct examination
of Lee:
Q. Did you ever tell Bill White that you had
discharged Carleton or words of this effect, that you
had discharged Carleton because he was the union
instigator?
A. No, I didn't.
Q. Did you ever say that to any other employee or
to any other person?
A. No, I can't recall that I did.
For Lee to say that he "can't recall" that he ever told
anyone that Carleton had been discharged because he was
the union instigator is an extremely curious statement. If,
as Lee maintains, he knew nothing of Carleton's union
I don't know if Mr. White actually, if he really meant what he said
about Mr. Carleton getting fired, about the union. Alright, Mr.
Carleton could have been fired for several other things and he could
have said union.
This is clearly no retraction of the claim that White said Carleton's
discharge was union-connected; it is simply a careful statement that while
White "said union," Anderson was in no position to ascertain what .,
actual reason was.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities and those activities played no part in the
discharge, the answer to that last question should have
been "absolutely not" or "no" or the like. To say that he
"can't recall" that he made such a statement admits of the
possibility that he did make such a statement, and that in
turn implies that Carleton was discharged for the reason
given.
Despite my uncertainty about the reliability of the
testimony of Anderson and Giordano, I am far from
uncertain about the strength of the case presented by
General Counsel. All of the circumstantial evidence-the
timing, coincident with the news of the representation
petition; the transparent weakness of the reasons given for
the discharge of Carleton, together with the contradiction
in Lee's testimony and his pretrial affidavit; the disparately
harsh treatment of a valuable employee like Carleton as
compared with the leniency accorded a much less useful
driver like Purcell; and the many other factors detailed
above-leaves me convinced that General Counsel has
established by a preponderance of the evidence that the
discharge of Thomas Carleton on May 13, 1976, violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
I. P.S.C. Resources, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Teamsters Union Local 25, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Thomas W. Carleton on May 13,
1976, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By coercively interrogating employees about their
union activities and giving an employee the impression of
surveillance of union activities in May 1976, Respondent
violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as found above, Respondent has committed
no violations of the Act as alleged in the amended
complaint.
THE REMEDY
In order to remedy the unfair labor practices found
herein, I shall recommend that Respondent be required to
cease and desist therefrom and take certain affirmative
action.
Having found that Respondent discriminatorily dis-
charged Thomas W. Carleton on May 13, 1976, I shall
recommend that it be required to offer Carleton immediate
and full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent one, without
prejudice to his seniority or other rights and privileges, and
2" 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.
to make him whole for any loss of earnings he may have
suffered from the time of his termination to the date of
Respondent's offer of reinstatement. His backpay shall be
computed in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
I shall also recommend that Respondent be required to
post appropriate notices to employees.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER20
P.S.C. Resources, Inc., Watertown, Massachusetts, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees for assisting or supporting Teamsters Union
Local 25, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, or for engaging in other
union activity or concerted activities for the purpose of
mutual aid or protection.
(b) Coercively interrogating employees about union
activities or giving employees the impression that their
union activities are under surveillance.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Thomas W. Carleton 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 make him whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available for the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary or
appropriate to analyze the amount of backpay due to
Carleton.
(c) Post at its place of business in Watertown, Massachu-
setts, copies of the attached notice marked "Appendix." 21
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's authorized representative, shall be posted by
it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
21 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
242
P.S.C. RESOURCES, INC.
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
WE WILL NOT discharge or otherwise discriminate
against any employee to discourage membership in
Teamsters Union Local 25, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, or
to interfere with the union activities or other protected
concerted activities of employees.
WE WILL NOT coercively interrogate employees
about their union activities or give employees the
impression that their union activities are under surveil-
lance.
WE WILL NOT in any other manner interfere with the
statutory rights of employees to engage in self-organiza-
tion, to form, join, or help unions, to bargain collective-
ly through representatives of their own choosing, to act
together for collective bargaining or other mutual aid
or protection, or to refrain from any or all these things.
WE WILL offer Thomas W. Carleton immediate and
full reinstatement to his former job, or, if that job no
longer exists, to a substantially equivalent one, and wE
WILL compensate him with interest for any loss of pay
he may have suffered because we discharged him.
P.S.C. RESOURCES, INC.
243