Rikal West, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1983

266 N.L.R.B. 551 (N.L.R.B. 1983)

RIKAL WEST, INC.
Rikal West, Inc. and Robert Kneifel. Case 20-CA-
16397
March 22, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On May 26, 1982, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed limited exceptions and an answering brief
to Respondent's exceptions, and Respondent filed
an answering brief to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Rikal West,
Inc., Burlingame, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
I Respondent 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Additionally, Respondent asserts the Administrative Law Judge's find-
ings are a result of bias. After a careful examination of the record, we are
satisfied that this allegation is without merit.
The General Counsel contends that the Administrative Law Judge
erred in finding that employee Kneifel was suspended for tardiness twice
rather than once. It is not clear from the record whether Kneifel was sus-
pended once or twice. In any event, we find it unnecessary to pass on the
General Counsel's exception since the finding he seeks would not affect
the result of our decision.
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(aXI) and (3) of the Act by discharging Kneifel,
we disavow his characterization of Wright Line, a Division of Wright Line.
Inc., 251 NLRB 1083 (1980), to the extent that the Administrative Law
Judge adopts the views of Courts of Appeals for the First and Third Cir-
cuits. Nevertheless, we note that under either the courts' view or the
Board's view of Wright Line an unlawful discharge is established here.
Member Jenkins finds Wright Line, supra, inapplicable because the Ad-
ministrative Law Judge found that Respondent's asserted reasons were
not the real reasons for Kneifel's discharge. In the absence of dual mo-
tives, the application of Wright Line, supra, is misleading and confusing.
266 NLRB No. 101
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was conducted on
March 2, 1982, is based upon an unfair labor practice
charge filed against Rikal West, Inc., herein called Re-
spondent, by Robert Kneifel, herein called Kneifel. The
charge was filed July 7, 1981, and on August 28, 1981, a
complaint was issued against Respondent by the Region-
al Director of the National Labor Relations Board,
Region 20, on behalf of the Board's General Counsel.
The complaint was amended, without objection, at the
outset of the hearing. The complaint alleges that Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act, herein called the Act, by discharg-
ing Kneifel because of his union or protected concerted
activities and independently violated Section 8(a)(1) by
interrogating employees about their union activities and
their communications with the National Labor Relations
Board and by instructing employees not to communicate
with the Board. Respondent filed an answer denying the
commission of the alleged unfair labor practices.'
Upon the entire record,2 from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted by the parties, I make the
following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent, a California corporation, is a wholly
owned subsidiary of Rikal, Inc., herein called Rikal, a
Massachusetts corporation with its principal place of
business in Wellesley, Massachusetts. In late 1975 Rikal
opened an office in Westlake Village, California, which
in 1976 was moved to Santa Ana, California. Late in
1978 or early 1979 Rikal opened an office in San Francis-
co, California, which in approximately April 1980 moved
to Burlingame, California. These California facilities are
operated by Respondent. Scott Smith, the manager of
the Burlingame facility, reports to Tony Joyce who is
Respondent's west coast regional manager. Joyce's office
is located in the Santa Ana facility. Doug Mitchell is the
manager of the Santa Ana facility.3
During the time material herein Respondent's Burlin-
game facility employed a minimum of 4 and a maximum
of 10 production workers who installed and maintained
In its answer Respondent admits that it meets the Board's applicable
discretionary jurisdictional standard and is an employer engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act. Also, Respond-
ent admits that the Union herein, the International Brotherhood of Elec-
trical Workers, is a labor organization within the meaning of Sec. 2(5) of
the Act.
Respondent's March 29, 1982, motion to correct transcript and the
General Counsel's motion to correct transcript included in the General
Counsel's post-hearing brief, which are unopposed, are granted in their
entirety.
s Respondent admits that Smith, Joyce, and Mitchell are statutory su-
pervisors and agents of Respondent for purposes of the Act.
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cable used by department stores to connect the
stores' computerized electric cash registers to the stores'
central computer rooms. The installation of this cabling
is performed by a crew of workers and takes several
weeks. In addition, pursuant to a contract between Re-
spondent and Wells Fargo bank, the workers perform
WellService work which involves the installation and
maintenance of small computer terminals located in retail
stores. The computer terminals are used by these stores
to authorize customers' purchases made by either credit
card or check. Usually one employee installs two of
these computer terminals daily and, with respect to the
WellService maintenance work, usually one employee is
able to handle several maintenance calls daily.
In 1974 Rikal entered into a collective-bargaining
agreement with the International Brotherhood of Electri-
cal Workers, herein called the Union, and in late 1979
entered into a successor agreement with the Union
which is effective from November 1, 1979, through Oc-
tober 31, 1982. This agreement, by its terms, states that it
is applicable to all Rikal's work throughout the United
States. The section of the agreement entitled "Scope of
Agreement" provides that the agreement covers:
Installation, maintenance, repairs and service work
on input data lines, interface lines, acquisition lines,
data reporting lines and relating peripheral equip-
ment for the above, as well as instrumentation data
reporting lines and related instruments when per-
formed by employees covered by this agreement in
the United States by [Rikal] or by any person, firm
or corporation owned or controlled by [Rikal]
The parties stipulated that at all times material Respond-
ent acknowledged that said collective-bargaining agree-
ment covered the work performed at Respondent's Santa
Ana and Burlingame facilities except for the WellService
work done pursuant to its contract with the Wells Fargo
Bank.
Robert Kneifel, the Charging Party and alleged discri-
minatee herein, began work for Respondent on August
15, 1979, at its Santa Ana facility. He was transferred to
Respondent's San Francisco facility in December 1979
and then to the Burlingame facility when, in April 1980,
the San Francisco facility was relocated there. The man-
ager of the Burlingame facility, Scott Smith, and Kneifel
shared an apartment from May 1980 until approximately
March 1981. It is undisputed that until shortly before
Kneifel's termination on January 28, 1981, Manager
Smith and Regional Manager Tony Joyce regarded
Kneifel as an outstanding employee with management
potential. Kneifel was classified by Respondent as
"senior WellService technician" and spent approximately
95 percent of his working time performing WellService
work. On September 15, 1980, Smith submitted a written
evaluation of Kneifel's work performance to Joyce
which recommended that Kneifel be granted a 75-cent-
an hour pay raise. Smith's evaluation stated: "[Kneifel]
has taken over WellService inventory. He has done very
well with the inventory status report. WellService is
very impressed with the job performance and customer
relations in the field. He has the capability to run the
office in my absence." On October 27, 1980, Joyce ap-
proved Smith's evaluation and Kneifel, at that time, was
granted the recommended pay raise.
The record establishes that it was not until November
1980 that Respondent acknowledged to its employees
employed in Burlingame that they were represented by
the Union and covered by Rikal's contract with the
Union. In fact, Facility Manager Smith, by his conduct,
gave Kneifel every reason to believe that the employees
were not represented by any labor organization. Thus, in
August 1980 Smith dispatched Kneifel to do some work
on a "union job" located in the vicinity of San Jose,
California, and instructed him to register at the Union's
San Jose local using Smith's name and Smith's union
membership card. Kneifel refused to do this explaining to
Smith that he did not believe in engaging in that type of
conduct. Smith and Kneifel then engaged in an argument
over the matter. Kneifel stated he was not a member of
the Union and did not believe in misrepresenting himself
as Smith in order to work on the "union job." Smith told
Kneifel that he did not understand Kneifel's concern be-
cause unions were no good and were the cause of all of
the country's economic problems and were all corrupt.
Kneifel told Smith that he came from a "very strong
union family," that his father was a union president and
although Smith was entitled to his opinion Kneifel could
not do what Smith wanted. Smith did not press the
matter.
In the summer of 1980 International Representative
Thomas Roberts was assigned by the Union to investi-
gate complaints by Burlingame employees Humphrey
and Marlbrough that Respondent was not complying
with the terms of the Union-Rikal collective-bargaining
agreement. After investigating their complaints Roberts,
in November 1980, submitted his report to the Union.4
Thereafter on November 12, 1980, Respondent Regional
Manager Joyce visited the Burlingame facility and
handed Kneifel a union membership application. Joyce
told Kneifel that to remain competitive Respondent just
recently signed a contract with the Union and the em-
ployees had to join the Union as a condition of employ-
ment, but Respondent would pay their dues and fees. 5
Joyce showed Kneifel a copy of the Union's contract
with Rikal, afforded him an opportunity to look through
it, and told Kneifel Respondent was complying with
about 75 percent of the contract and was paying employ-
ees better subsistence benefits than provided for in the
contract. With respect to the union membership applica-
tion Joyce told Kneifel to write "trainee" in the space on
the application reserved for "classification." Joyce ex-
plained to Kneifel that all of the employees except for
Facility Manager Smith were classified as "trainees."
4By this time Humphrey and Marlbrough were no longer employed
by Respondent.
5 During the same period of time Facility Manager Smith handed em-
ployee Shaun Neal a union membership application. Smith directed him
to sign it explaining to Neal that "We have a union contract and every-
one has to be a member.'
552
RIKAL WEST, INC.
Kneifel complied with Joyce's instruction and returned
the completed union membership application to Joyce.6
After learning from Joyce on November 12, 1980, that
the employees were represented by the Union and cov-
ered by Rikal's contract with the Union, Kneifel, for the
next few days, spoke to the other employees on several
occasions about the union contract. Some of these con-
versations occurred in the Burlingame facility's ware-
house and parking lot. Kneifel was apparently observed
by Manager Smith talking to the employees because on
November 19 Smith asked him, "What is going on with
you guys." When Kneifel answered, "What do you
mean," Smith told him, "You've been sneaking around, I
know something is going on and I want to know what it
is." Kneifel informed Smith that he thought Joyce lied to
him when he stated the union contract had only just
taken effect as it was only recently negotiated. Kneifel
explained to Smith that he had been trying to find out
what was going on because he did not trust Joyce. Smith
indicated that Kneifel should talk with Joyce about this
matter and told him that Joyce was scheduled to visit
the facility later that day at which time Kneifel would
have an opportunity to speak with him. 7
Later during November 19, as Smith indicated to
Kneifel, Joyce visited the Burlingame facility. Smith sent
Kneifel to the airport to meet and transport Joyce to the
facility. When they met, Joyce told Kneifel that he was
visiting the Burlingame facility specifically to talk with
him because he understood there were problems about
the union contract. Kneifel stated that he felt Respond-
ent had perpetrated a fraud upon the employees inas-
much as Kneifel and the other employees believed they
were not being paid the contractual rate of pay and felt
they had been improperly classified as trainees. Kneifel
pointed out to Joyce that he had been previously classi-
fied as a senior WellService technician, but that now for
purposes of the union contract Respondent was classify-
ing him as a trainee. Joyce asked if Kneifel knew how to
operate an IBM installation. Kneifel stated he did not
have that knowledge because he spent virtually all of his
working time doing WellService work, but that if he
went to the Union with his job description and title the
Union would not classify him as a trainee. Kneifel also
stated that it was his understanding that Respondent's
payment of the employees' dues and initiation fees was a
violation of the Taft-Hartley Act. Joyce asked why
Kneifel would want to pay his own dues and fees to the
s The above description of the November 12 conversation between
Joyce and Kneifel is based upon Kneifel's testimony. Joyce testified he
visited the Burlingame facility on November 12 to enroll the employees
into the Union, but testified that Kneifel's description of their conversa-
tion is inaccurate insofar as Kneifel testified Joyce did not tell him that
the employees were being required to sign the membership applications
because the Union had directed Respondent to have them do so and testi-
fied that Joyce told him that the union contract had only recently been
negotiated. Joyce also testified that Kneifel asked several questions about
specific provisions of the contract which Joyce was unable to answer, so
Joyce offered to find out the answers. I have rejected Joyce's testimony
and credited Kneifel's because in terms of their demeanor while testifying
about this conversation Kneifel impressed me as a more credible witness.
7 The above description of Smith's November 19 conversation with
Kneifel and the fact that it took place on November 19 are based upon
the testimony of Kneifel who in terms of his demeanor impressed me as a
credible witness. Smith did not deny the conversation as it was descnbed
by Kneifel or that it took place on November 19.
Union if the Company chose to do so. Kneifel asked
why Respondent would want to pay his union dues.
Joyce then asked what the employees intended to do.
Kneifel indicated that at that point the employees had
not spoken to anyone. Joyce asked, "What I mean is are
you planning a strike or are you planning a work stop-
page." Kneifel answered in the negative and told Joyce
that the employees liked their jobs but wanted to be
treated fairly according to the terms of the union con-
tract. Joyce asked Kneifel to get together with the other
employees and formulate a list of the employees' ques-
tions about those portions of the union contract they felt
Respondent was not complying with and to submit the
questions to Joyce who, with Respondent Vice President
Kalin, would refer the employees' questions to the Union
for a ruling. Kneifel agreed to do this. Later that skme
day, November 19, at the end of the workday, Joyce
told Kneifel that he had talked with Vice President
Kalin and they felt it was an oversight that when Man-
ager Smith was granted a pay raise that Kneifel was not
also given one and that effective immediately Kneifel's
pay was raised from S6 an hour to $8.70 an hour s and
that Vice President Kalin would come to the facility in a
few days at which time Kneifel could submit the em-
ployees' questions about the union contract. g
On the morning of November 24, 1980, prior to Knei-
fel leaving the facility to start work, Joyce spoke to him
in the warehouse and asked for the list of questions
which Joyce had asked for at their last meeting. Kneifel
stated he did not have such a list and explained to Joyce
that basically the employees' main concern involved
their job classification and rate of pay. Kneifel also stated
that since any agreement which Kneifel might reach
with Joyce or Kalin would have to be a tentative one,
Kneifel felt it was in the best interests of everyone to
bring a representative of the Union into the discussions.
Joyce frowned and ended the conversation with a terse
8 Under the terms of Rikal's contract with the Union the hourly rate
of pay for "data-line installer" was $8.70
9 The above description of Joyce's November 19 conversation with
Kneifel and the date in which the conversation took place are based upon
Kneifel's testimony. Joyce testified it was during the first week in De-
cember 1980 that Kneifel drove him from the airport to the Burlingame
facility, not November 19, and that he could not have personally met
with Kneifel on November 19 because during November 1980 he visited
the Burlingame facility only twice, November 12 and 24. Regarding the
substance of the conversation he had with Kneifel on the day Kneifel
drove him from the airport, Joyce did not specifically deny any of the
conversation as it was described by Kneifel. However, Joyce testified he
also spoke to Kneifel at this time about Kneifel's responsibilities when
Smith was scheduled to take his 2-week vacation late in December and
that in this context discussed Respondent's motor vehicle policy. Joyce
did not deny that Kneifel's rate of pay was increased to $8.70 effective
November 19, nor did Respondent introduce payroll or personnel records
to contradict Kneifel's testimony in this regard. Kneifel specifically
denied that during this conversation Joyce discussed what Kneifel's
duties would be during Smith's vacation or discussed Respondent's motor
vehicle policy. I have rejected Joyce's testimony about the date this
meeting took place and what was stated at the meetings because in terms
of demeanor Kneifel impressed me as the more credible witness. I also
note that Joyce's testimony that he only visited the Burlingame facility
twice in November, November 12 and 24, hence could not have possibly
met with Kneifel on November 19, is consistent with his further testimo-
ny that he visited the facility on approximately November 20 or Novem-
ber 21 to inform the employees about the change in Respondent's motor
vehicle policy.
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reply which Kneifel was unable to recall.' ° Immediately
following this conversation, but before Kneifel on No-
vember 24 left the facility to start work, Manager Smith,
within the space of 45 minutes, made the following re-
marks to Kneifel after first speaking to Joyce and Kalin,
who at the time were in Smith's office. Smith told Knei-
fel that if the Company had to live by the union contract
it would have to immediately lay off three employees
and that since there was nothing in the union contract
about seniority the Company could lay off any three
people. Smith also stated the Company did not have to
allow the employees to drive the Company's vehicles to
and from work but could change that policy because
there' was nothing in the Union's contract that said the
Company had to allow the employees to use company
vehicles on their personal time. Also, Smith told Kneifel
that Respondent could change the employees' workweek
and have them work Tuesday through Saturday rather
than Monday through Friday and that if an employee
made a mistake on a job the Company, under the union
contract, could send that person to repair the work on
his own time. "
In November 1980, following his November 24 con-
versations with Joyce and Smith, Kneifel spoke to union
representative Roberts and arranged to meet with him at
Respondent's Burlingame facility. In fact, one morning
late in November, at the Burlingame facility prior to the
start of work, Roberts met briefly with Kneifel and some
of the other employees and showed them Rikal's con-
tract with the Union and told the employees he wanted
to meet with them to determine if Respondent was com-
plying with the terms of the contract. Roberts arranged
to meet with the employees at a local pizza parlor in a
few days after work and asked them to submit to him in
writing a description of their jobs and grievances.
Later during November, on the day of the meeting he
had scheduled with the employees, union representative
Roberts went to the Burlingame facility at the end of the
employees' workday in order to go to the meeting place
with them. Prior to leaving the facility for the meeting,
Roberts spoke briefly to the employees and told them
that as an international union representative he frequent-
ly traveled, so it would be difficult for the employees to
contact him and suggested they elect an employee as
shop steward who would serve as a conduit between
Roberts and the employees. The employees selected
Kneifel as their shop steward. Before leaving the facility
Roberts went into the office accompanied by Kneifel and
informed Smith that Kneifel had been appointed union
shop steward and asked if Smith objected to Roberts
phoning Kneifel about union business at the office. Smith
indicated he had no objection.
Based upon the information he received from the em-
ployees, Roberts concluded that they should be receiving
installers' wages under the terms of the collective-bar-
i' The above description of Kneifel's November 24 conversation with
Joyce is based upon Kneifel's testimony. In terms of his demeanor Knei-
fel impressed me as being a credible witness when he testified about this
conversation. Joyce did not deny his testimony.
" The description of Smith's November 24 remarks to Kneifel is based
upon Kneifel's testimony. In terms of demeanor in presenting this testi-
mony Kneifel impressed me as a credible witness. Smith did not deny
making these remarks.
gaining agreement whereas Respondent was treating
them as trainees or helpers for wage purposes. Late in
November 1980 Roberts spoke to Smith and communi-
cated this information to him. Thereafter in December
1980 and January 1981, Roberts met with Regional Man-
ager Joyce and communicated his position to Joyce who
apparently took the position that Rikal's contract with
the Union either did not apply to the Burlingame facility
or to the WellService work performed at that facility.1 2
On approximately December 1, 1980, Joyce wrote a
note to himself, General Counsel Exhibit 18, which in its
entirety reads as follows:
CONVERSION PROGRAM
Plan
12/1/80
a Reduce existing man power to base force to
handle WellService only-3 Fieldpeople & 1 electri-
can [sic]
b Decision must be made as to wether [sic] to
retain Kerry Fienk-Peregrina. Her new husband
strong union affiliation and has had many discus-
sions with our current employees and
c Training period for green Field person is two
weeks-using Scott [Smith] and Frank Kiminsky to
train and augmenting them with two knowledgeable
people it would take 4 weeks for the new office to
become self supporting. I would prefer not to use
personnel from S.A. [Santa Ana] but Parkorney and
Simko would be the best choices.
Joyce initially testified that General Counsel Exhibit
18 was in his handwriting and specifically testified that
paragraph "b" was in his handwriting. But Joyce then
testified there were some things "I don't think I
[wrote]." The record does not reveal which portions of
the note are supposedly not in his handwriting and his
testimony that "I don't think I wrote" all of the note was
not given in a persuasive manner. My examination of the
handwriting in the note persuades me that the same
person wrote the entire note. The following factors-
Joyce's admission that he wrote the entire note and that
paragraph b was in his handwriting, the fact that the
note is in the handwriting of the same person, and my
observation that Joyce's inconsistent testimony that he
did not think he wrote all of the note was not given in a
convincing manner-have persuaded me that General
Counsel's Exhibit 18 was written in its entirety by Joyce.
Joyce testified that the thoughts set out in General
Counsel's Exhibit 18 "were never on one piece of
paper." Before I carefully examined General Counsel's
2 On a date not set forth in the record, the Union filed a grievance
against Rikal under the grievance-arbitration procedure provision of its
contract with Rikal. The Union contended that the contract applied to
the Burlingame facility and that Rikal, at that facility, was not complying
with the contract in several respects. When the parties could not reach
agreement over this grievance it was referred to the Council on Industri-
al Relations for the Electrical Contracting Industry whose decisions the
contract provides shall be final and binding on the parties. On May 18,
1981, the council issued its decision on the Union's grievance and rules
that Rikal's contract with the Union applied to the Burlingame facility
and that Rikal was in violation of the contract as alleged by the Union.
554
RIKAL WEST, INC.
Exhibit 18 I stated that I felt it was a composite of sever-
al different documents. However, a close scrutiny of
General Counsel's Exhibit 18 persuades me that I erred
and this is not the case. There is no indication on its face
that General Counsel Exhibit 18 consists of parts of sev-
eral different documents xeroxed one upon the other so
as to appear to be one document. Moreover, an examina-
tion of the contents of the exhibit reveals that the three
lettered paragraphs therein-a, b, and c-are a part and
parcel of the same subject matter, namely, a conversion
program whereby the number of employees employed at
the Burlingame facility would be reduced with the cur-
rent employees being replaced by other employees.
These circumstances and my poor impression of Joyce's
demeanor when he testified his handwriting on General
Counsel's Exhibit 18 was "never on one piece of paper"
have led me to reject his testimony that the writing con-
tained in General Counsel's Exhibit 18 was not meant to
be a part of the same document.
With respect to the circumstances which prompted
him to write General Counsel Exhibit 18 Joyce testified
as follows:
There was a point when it was determined that the
confidential files of the Burlingame office had been
made available to unauthorized personnel and
others where specific information had been re-
moved from personnel records. Other items would
be-that was difficult to determine as to what
extent had been removed if an entire folder was
gone, other than the fact in attempting to research
items, personnel items, and some records, other
records, it is found that there were specific gaps in
all of our information. At that point in time . . . we
are talking fall 1980 . . . prior to December 1980.
At that point in time in order to assure myself, I
made some notes as to what if I had to go through
a general house cleaning and if the information that
had been taken from our records were taken by spe-
cific individuals, then this is what would have had
to have done and this would be the worst case, but
this would be the program that I would have to
pursue as a prudent manager . . . it's basically a
stream of consciousness, as I recall, done on a
plane, if I remember other parts of that, and there
was no way at that point in time I could come to a
distinct decision and I tore those-that information
up and never made a recommendation.
In short, Joyce testified that because he discovered that
confidential files from the Burlingame facility had been
made available to unauthorized personnel and specific in-
formation from the files had been removed he considered
cleaning house, that is, replacing the current employees
at Burlingame with others. I reject this testimony in its
entirety. First, demeanorwise when Joyce presented this
testimony he looked very uncomfortable and did not
seem sincere. Second, if in fact unauthorized personnel
had gotten a hold of and taken information from person-
nel files at the Burlingame facility it would seem logical
that the manager of that facility, Scott Smith, would
have brought this matter to Joyce's attention inasmuch
as Joyce's office was located several hundred miles
away, and only rarely did Joyce visit Burlingame, yet
Smith was not called upon to corroborate Joyce's testi-
mony. Third, other than the vague and ambiguous testi-
mony Joyce gave about the unauthorized disclosure and
taking of personnel information, Joyce's testimony was
singularly lacking in any specifics about what files or in-
formation had been wrongly made available to personnel
or were missing or how he came to discover the wrong-
doing. Fourth, Joyce failed to explain why, in order to
punish the person or persons responsible for the unau-
thorized disclosure of information from the personnel
files, it was necessary, as set forth in General Counsel
Exhibit 18, to contemplate terminating virtually all the
employees employed at Burlingame and to limit the
work of that facility to simply WellService work. Last,
there is no evidence that, when Joyce allegedly discov-
ered in the fall of 1980 that confidential information had
been available to the employees and certain of this infor-
mation was missing from personnel files, Joyce took any
steps at that time to put a stop to this type of conduct or
even threatened employees with discipline for engaging
in this misconduct.13 Based upon the foregoing I find
that the explanation advanced by Joyce for writing what
is contained in General Counsel's Exhibit 18 is false.
Rather, I find that the record as a whole establishes that
when Joyce wrote General Counsel's Exhibit 18 on ap-
proximately December 1, 1980, he was contemplating
terminating Kneifel and other employees employed at
the Burlingame facility because of union considerations.
Thus, on November 24, 1980, Kneifel made it plain to
Regional Manager Joyce that the employees at the Bur-
lingame facility would insist that Respondent comply
with the terms of the union contract at that facility and
also informed Joyce that he intended to contact a repre-
sentative of the Union to enforce the employees' de-
mands. Later that same day Scott Smith, the manager of
the Burlingame facility, afer talking with Joyce and Vice
President Kalin, threatened Kneifel that Kneifel and the
other employees would suffer reprisals if Respondent
was required to comply with the union contract. There-
after, later in November 1980, Respondent learned that
Kneifel had in fact contacted a union representative who
had arrived on the scene and that Kneifel had been se-
lected by the employees as their shop steward. It was in
this context that on or about December 1, 1980, Joyce,
as he put it, was contemplating whether or not he should
"clean house" at the Burlingame facility. Under these
circumstances and in view of the false reason Joyce ad-
vanced for contemplating "cleaning house" and the fact
that the sole reason noted by Joyce in his note for con-
templating "cleaning house" was the fact that Peregrina's
husband was a strong union sympathizer who was seen
talking to the Burlingame employees, I find that the
record establishes that on approximately December 1,
1980, Joyce was contemplating discharging Kneifel and
ts I recognize that office clerical employee Kerry Peregrina testified
that in January 1981 Manager Smith asked her if she knew of employees
going into the personnel files. However, this conversation post-dated the
events which Joyce claims prompted him to write General Counsel's Ex-
hibit 18 by several months.
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other employees employed at the Burlingame facility
because of their support for the Union's effort to require
Respondent to abide by the terms of a contract between
Respondent's parent company Rikal and the Union.
During December, in his capacity as union shop stew-
ard, Kneifel met with employees and discussed the col-
lective-bargaining contract and stayed in touch with
union representative Roberts. On occasions Roberts
phoned Kneifel at the Burlingame facility office.
Early in December 1980 Manager Smith asked Kerry
Peregrina, the office clerical employed at the Burlingame
facility, if Kneifel had been in touch with the Union.
Smith told Peregrina that Kneifel had organized the em-
ployees into the Union and asked Peregrina whether
Kneifel was planning to ask for a higher wage rate.
Smith also asked why Peregrina was seeing Kneifel so
frequently and whether Peregrina's husband had been
discussing the Union with the employees. 14 Peregrina
stated her husband talked with the employees all the
time and that she was a friend of Kneifel's and that her
husband was doing some repair work on Kneifel's car.
Smith asked whether Peregrina and Kneifel were dis-
cussing the Union. Peregrina answered in the negative.
Thereafter, between the middle of January 1981 and
Kneifel's discharge on January 28, 1981, Smith, on sever-
al occasions, asked Peregrina whether Kneifel "had been
in contact with the Union" or "if [Kneifel] had talked to
Tom Roberts." He also asked Peregrina whether Roberts
had phoned for Kneifel. On those occasions when Rob-
erts had in fact phoned the office and asked for Kneifel,
Peregrina, in response to Smith's inquiry, informed him
of this. During the same period of time, mid-January,
Smith asked Peregrina "if [she] knew if the guys were
getting together and . . . if they were having a meeting
at [Peregrina's] house and . . . told [Peregrina] that [she]
should not get together with the guys." Peregrina told
Smith that she would do whatever she wanted. 15
During the week of January 12, 1981, Peregrina and
Kneifel visited the Regional Office of the National Labor
Relations Board where Peregrina received some written
information which she placed in an envelope with the
Board's return address and placed the envelope in her
purse. On approximately January 13 Peregrina left her
purse overnight in the office and the next day it ap-
peared that someone had looked through its contents. On
approximately January 19 Smith asked whether Pere-
grina "had been to the Labor Board." Peregrina an-
swered yes. Smith then asked "if Bob Kneifel had been
14 The record reveals that Peregrina's husband worked for a company
whose employees were represented by the Teamsters Union and he was a
member of that union.
18 The description of the conversations between Smith and Peregrina
set forth in this paragraph are based on Peregrina's testimony. Smith did
not specifically deny any of Peregrina's testimony. Smith testified that he
spoke with Peregrina about the Union on approximately four or five oc-
casions, that some of these conversations were initiated by Peregrina and
some were initiated by himself, and that once Peregrina brought up the
subject by telling Smith that "the guys are going to the Union." Smith
was unable to recall anything else that was stated in this conversation or
in his other conversations with Peregrina about the Union. I have cred-
ited Peregrina's versions of her several conversations with Smith because
in terms of demeanor Peregrina impressed me as an honest and reliable
witness, a more credible witness than Smith, and Smith failed to specifi-
cally deny the comments attributed to him.
to the Labor Board." Peregrina answered yes. Smith
asked why Peregrina had visited the Labor Board and
what she and Kneifel were planning to do. Peregrina re-
plied she did not plan to do anything at that moment but
asked Smith what she should do if someone asked her to
go to the NLRB. Smith replied that "he did not know"
and was interrupted by office business and when he
again spoke to Peregrina in approximately 15 minutes
told her "[she] should ask Tony [Joyce]."" 6 Shortly
thereafter Peregrina phoned Joyce and asked him what
she should do if an employee asked her to go to the
Board. Joyce told her he could not advise her about this
and that it was totally her decision. 17
On approximately November 24, 1980, or shortly
thereafter, Smith notified the employees of the Burlin-
game facility that they would have to stop using compa-
ny vehicles for driving to and from work but that from
now on at the end of the workday they would have to
leave their company vehicle at the facility and pick it up
in the morning rather than take it home. In other words,
the employees had to use their own automobiles or
public transportation to get to and from the facility. Late
in November 1980 or during the first week of December
1980 Joyce spoke to Kneifel and employee Neal in
Joyce's motel room when they came to give him a ride
to the Burlingame facility. Kneifel and Neal questioned
Joyce about the new policy whereby the employees
could not take a company motor vehicle home at the end
of the workday. Joyce told them that Respondent would
not rescind this policy. He explained that the change in
policy had nothing to do with the situation involving the
union contract but that recently the Company's insur-
ance rates had increased substantially because a couple of
automobiles had been broken into while parked at em-
ployees' residences, that an employee using a company
car had been involved in a hit-and-run accident, and that
there had been a lot of traffic violations issued involving
company vehicles. Kneifel and Neal pointed out that at
times it was more convenient for both the Company and
employees for an employee to drive a company vehicle
home at the end of the workday rather than return it to
the facility. Joyce stated that Respondent was not inflexi-
ble in the application of its work rules and that he could
see there could be situations where exceptions to the
motor vehicle policy would be appropriate. Kneifel
asked whether the employees had to contact Joyce each
time a situation arose which might be grounds for such
'6 The description of Smith's conversation with Peregrina about the
NLRB is based upon Peregrina's testimony. Smith was not able to recall
any of the specifics of the conversation other than the fact that when
Peregrina asked whether she should go to the NLRB if requested to do
so that Smith testified he told her "it was her own will if she did, that I
will not stop her if she wanted to." I have credited Peregrina's version of
this conversation because in terms of demeanor she impressed me as a
more credible witness than Smith. I recognize that at one point Peregrina
testified that in response to her inquiry about going to the Board Smith
told her not to talk to the Board. However, on cross-examination she in-
consistently testified that Smith, in response to this inquiry, "told me I
should ask [Joyce]." Admittedly Peregrina, immediately after this conver-
sation with Smith, phoned Joyce for advice about this matter. Accord-
ingly, I have found that Smith told Peregrina to phone Joyce for advice
rather than not to talk to the Board.
17 Smith's conversation with Joyce about the NLRB is based on
Joyce's undenied testimony.
556
RIKAL WEST, INC.
an exception. Joyce replied in the negative, stating that
in addition to himself that Smith, as manager, and Knei-
fel as the senior WellService technician had the authority
to authorize employees to take a company vehicle home
if the situation warranted it. Also during this conversa-
tion Kneifel and Neal told Joyce that outside of about
five items which were in dispute between the Union and
the Company such as employees' job classifications, holi-
days, and per diem, the employees were not unhappy
about the way Respondent was treating them and told
Joyce that the matter involving the union contract did
not have to get out of control. Joyce informed them,
"Let's get everything together because some of these
itepss are under consideration in other ways between the
Company and the [Union]. There are other items which
have not been questioned, but let's have a detailed listing
at least to get as many things up and going as we could
at the time."'8 Thereafter, when Joyce and Kneifel ar-
rived at the facility that day Joyce told Smith that when-
ever there were circumstances which warranted an ex-
ception to the Company's policy of not allowing employ-
ees to take company vehicles home both Smith and
Kneifel had the authority to make exceptions to this
policy. ' 9
During the 2-week period encompassing Christmas
and New Year's Day, Smith, the manager of the Burlin-
game facility, was absent from work on his vacation and
did not return to work until Monday, January 5, 1981.
During the second week of his absence Doug Mitchell,
the manager of Respondent's Santa Ana facility, who
was admittedly a statutory supervisor and an agent of
Respondent, came to the Burlingame facility and worked
there for 2 days. While there, one evening Mitchell vis-
ited with employees Kneifel and Neal at Kneifel's apart-
ment. Mitchell told them that one of the reasons he was
at Burlingame in Smith's absence was to evaluate the
way Smith was operating the office and that his evalua-
tion was that Smith was doing poorly. Kneifel asked
Mitchell why Respondent did not treat the employees
better and pay them higher wages so they would remain
longer and do better work. Mitchell stated that Respond-
ent Vice President Kalin did not want to pay employees
very good wages but favored employing employees
whom he could pay between $4 and $5 an hour, but that
every so often one or two employees would get wise
about what was going on with respect to the union con-
tract and go to either the Union or the Government
whereupon Kalin ended up paying these employees off
because Kalin though it was cheaper to do that than it
was to pay all the employees the wages called for by the
collective-bargaining agreement. Mitchell told Kneifel
and Neal that, if the employees intended to pursue their
grievance against Respondent, they should pursue it as
hard as they could because Respondent was definitely
18 The description of the portion of this meeting wherein the subject
of the Company's motor vehicle policy was discussed is based on a syn-
thesis of the testimony of Kneifel, Neal, and Joyce which was not incon-
sistent. The description of the remainder of the meeting is based on the
undenied testimony of Joyce.
"9 The description of Joyce's comments to Smith and Kneifel are
based on the undenied testimony of Kneifel which was corroborated by
the testimony of office clerical Peregrina, who was present during the
conversation.
going to get them. Mitchell told Kneifel that the
Comany considered him to be a "troublemaker" and so
Kneifel had nothing to lose by pursuing the grievance or
going to the Government. 2 0
Respondent Rikal's contract with the Union requires
that employees shall be paid a subsistence allowance of
$15 per day if they are required by the Employer to
work at a job location which is more than 50 miles from
their permanent residence or which requires that they
remain away from their permanent residence overnight.
Although Respondent apparently paid the employees a
subsistence allowance if the employees were required to
be away from their residence overnight, it did not other-
wise follow the aforesaid contractual provisions. In Janu-
ary 1981 several of Respondent's Burlingame employees
discussed this situation and decided that for the week
ending Friday, January 9, they would submit expense
vouchers for work they had performed outside a 50-mile
radius from their homes. Several of the employees, in-
cluding Kneifel, submitted such vouchers at which time
Smith informed Kneifel that Smith would not accept his
expense voucher. Kneifel asked whether Smith intended
to take the responsibility of making the decision not to
pay him subsistence for working outside the 50-mile
radius or was he going to let Respondent Vice President
Kalin make the decision. Smith stated he would not ap-
prove Kneifel's voucher, but would simply submit it to
Kalin.
During the week ending Friday, January 23, 1981,
Kneifel, on Monday, January 19, was approximately I
hour late for work because he overslept; on January 20
he was not late for work, but left early because he was
sick; on January 21 he stayed home sick; on January 22
he arrived at work on time and worked the entire day;
and on Friday, January 23, at approximately 8 a.m. Knei-
fel, who was suffering from colitis, phoned the office and
informed office clerical Peregrina that he was sick and
would have to take the day off. But, when Peregrina ad-
vised him that the Company was in a bad bind and
needed him at work badly, Kneifel stated that he would
come to work and thereafter arrived I hour and 22 min-
utes late. Peregrina credibly testified she notified Smith
that Kneifel had phoned in sick but had agreed to come
in to work after Peregrina had told him that he was
needed.
The Burlingame facility is not open for business on
Saturday but operates with an "on call" technician. On
Saturday, January 24, Kneifel was on call and was
'0 The description of Mitchell's conversation with Kneifel and Neal is
based on the undenied testimony of Kneifel. Kneifel, in terms of his de-
meanor when he presented this testimony, impressed me as a sincere and
reliable witness. I have not relied on Neal's version of the conversation
because Kneifel impressed me as the more reliable witness. Respondent
did not call Mitchell to testify about this conversation. I recognize that
this conversation was not alluded to in the complaint, thus, Respondent
had no knowledge that Mitchell's testimony would be relevant to this
proceeding. However, at the outset of the hearing Respondent, without
objection, permitted the General Counsel to amend the complaint to
allege Mitchell as a statutory supervisor and did not thereafter object to
the introduction of the evidence pertaining to this conversation and did
not request that the hearing be continued so that it could call Mitchell to
rebut Kneifel's testimony or at the very least consult with Mitchell about
his version of the conversation.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scheduled to work from 8 a.m. to 6 p.m. The on-call
technician has a beeper through which customers who
need service contact him. Smith, who shares an apart-
ment with Kneifel, drove Kneifel to the facility on Janu-
ary 24 so Kneifel could pick up a company vehicle.
After making two service calls Kneifel returned to the
office early in the afternoon and when he discovered
that the office was locked returned to his apartment,
which was permissible, where he spent the rest of the
workday on call. He parked the company vehicle in the
apartment's parking lot, where it stayed for the entire
weekend. The parking lot is partroled by a security serv-
ice. Smith observed the vehicle parked there but said
nothing to Kneifel about it that weekend nor did Kneifel
that weekend say anything to Smith about it. Kneifel did
not use the vehicle that weekend but simply left it in the
parking lot.
On Monday, January 26, Smith, the first thing in the
morning, phoned Joyce at the Santa Ana facility and
told him that on Saturday Kneifel had taken a company
vehicle and kept it over the weekend without permission.
Smith remarked to Joyce that "with this" they either
"could get" Kneifel or that Kneifel "will be gone." Pere-
grina who overheard this telephone conversation asked
Smith what was going to happen to Kneifel. Smith told
her that Kneifel would probably get a suspension.21
On Monday, January 26, 1981, Kneifel was 19 minutes
late for work. The next day, Tuesday, January 27, when
Kneifel arrived for work Smith spoke to him about his
tardiness. Smith told Kneifel, "This kind of thing is
going to have to stop." Kneifel promised he would not
be tardy again.
Later during January 27, in the morning soon after
Smith had talked to Kneifel about his tardiness, Kneifel
was given a memo dated January 23, 1981, addressed to
him from Joyce which was captioned "Subject: Confir-
mation of verbal instructions to you from your office man-
ager." The memo reads as follows:
Effective January 19, 1981 you are relieved of all
responsibility to oversee the general inventory of
terminals maintained at the Burlingame Office.
The reason for this action is the totally unprofes-
sional manner in which this responsibility was han-
dled during the period of 12/22/80 through
1/16/81:
a. No weekly reports were made for 3 weeks.
" It is undisputed that on Monday, January 26, Smith phoned Joyce
about the fact that Kneifel had kept a company vehicle after work on
Saturday. The above description of what Smith told Joyce and Peregrina
Is based on Peregrina's testimony. Peregrina was present in the office im-
mediately adjacent to Smith's desk when he phoned Joyce. In terms of
her demeanor while testifying about Smith's remarks Peregrina impressed
me as a trustworthy and reliable witness. Neither Joyce nor Smith spe-
cifically denied the remarks Peregrina attributed to Smith when he spoke
to Joyce nor did Smith deny the remarks attributed to him when he
spoke to Peregrina. I recognize that, while Peregrina testified that Smith
told Joyce "with this, they will be able to get (Kneifell]." in her prehear-
ing preaffidavit submitted to the NLRB she stated Smith told Joyce
"with this [Kneifel] will be gone." In my opinion since the meaning of
each statement is virtually the same the inconsistency between Pere-
grins's testimony and her affidavit is insufficient to impugn her credibil-
ity, particularly whereas here her testimony was not specifically denied.
b. Reports were inaccurate.
c. Unprofessional verbal communications with
the customer.
d. Continual verbal assurances to me that these
items were being maintained and reported on a reg-
ular basis.
The impact of this has damaged the credibility of
this company with its' customer, and further action
in this matter will be taken.
Immediately after reading the memo Kneifel went to
Smith and told him that he thought Joyce had "jumped
the gun" in issuing the memo because Smith had never
spoken to him about the matters contained therein. Smith
replied, "I told you your inventory reports had been
late." Kneifel answered, "That's not the substance of the
memo. It says that I have been relieved of the responsi-
bility to oversee inventory." Smith admitted to Kneifel
that this came as a surprise to him.
On January 27, shortly after Kneifel spoke to Smith
about Joyce's January 23 memo, Smith, referring to the
fact that Kneifel had taken a company vehicle home on
Saturday and not returned it until Monday, told Kneifel,
"This business of taking a vehicle home is going to have
to stop." Kneifel asked why, if Smith at the time it oc-
curred had felt it was a problem had not said anything to
him about it as Smith knew the vehicle was parked in
the apartment parking lot. Smith told Kneifel, "That's
not the point. You were supposed to bring it back."
Kneifel answered, "I did not think it was a problem so I
just left it where it was." 22
On January 27 between 3 and 4 p.m., after Kneifel had
returned to the Burlingame facility from his service calls,
Smith asked Kneifel to sign a memo dated January 27,
1980, addressed to Joyce from Smith on the subject of
"Robert Kneifel's tardiness." The memo stated:
As of today Robert Kneifel has been counseled on
his tardiness on these days: January 19th 9:08, 21st
8:55, 23rd 9:22, 26th 8:19.
Due to his tardiness the operation of this office is
being affected. He understands that if he does not
resolve this problem further disciplinary action will
be taken.
Shortly thereafter, before he left for the day, Kneifel was
handed a Western Union mailgram addressed to him
from Joyce which was dated January 26 and which
reads as follows:
You are hereby placed on warning that your failure to
return company vehicle to office after close of business
on Saturday 1-24 is a flagrant violation of company
rules and regulations. I will notify you before close of
normal working hours on Wednesday 1-28 re resolu-
tion of this matter.
'2 Based on Kneifel's testimony. Smith testified that it was on Monday,
January 26, when he spoke to Kneifel about the company motor vehicle.
I have credited Kneifel in this regard because demeanorwise he im-
pressed me as a more credible witness than Smith.
558
RIKAL WEST, INC.
Upon reading the mailgram Kneifel went to Smith and
asked, "What is this? You know I told you this morning
that I would not do anything with the vehicle anymore."
Smith denied having any knowledge about the mailgram
and stated he had no knowledge that Joyce intended to
take any action about the matter but that Joyce would be
in the office the next day at which time Joyce would
probably discuss that matter with Kneifel.
The next day, Wednesday, January 28, 1981, Kneifel
worked the full day. Joyce, who had arrived at the fa-
cility that morning, called him into the office at the end
of the workday and stated he would like to have a dis-
cussion with Kneifel before Kneifel left for the day.
Kneifel stated he would like to have his union repre-
sentative present for the discussion. Joyce stated that this
was impossible because "You are facing discharge."
Kneifel stated that if he was facing discharge then he
would have to insist that his union representative be
present for the discussion. Joyce stated that this was im-
possible because "You're being terminated effective im-
mediately" and handed him an envelope with cash in it
and a typed statement of Kneifel's earnings up through
that day. Joyce then declared, "You know, now that it is
over with, maybe we can have that discussion anyway,"
and asked, "What happened to the old Bob Kneifel who
was rarely, if ever, late and whose work habits set an ex-
ample for the other technicians." Kneifel stated, "I don't
agree with you and I don't want to discuss this any fur-
ther," and left the office. 23
B. Conclusionary Findings and Discussion
1. Kneifel's discharge
a. The General Counsel's prima facie case
Since 1974 the Union and Respondent's parent compa-
ny Rikal have been parties to successive collective-bar-
gaining agreements which by their terms covered certain
enumerated work performed not just by Rikal's employ-
ees but also by the employees employed by companies
owned by Rikal, such as Respondent. In November 1980,
after a representative of the Union began an investigation
of employees' claims that Respondent was not complying
with the terms of the collective-bargaining agreement at
the Burlingame facility, Respondent acknowledged to
the Burlingame employees that they were covered by
Rikal's contract with the Union. Respondent and the
Union, however, disagreed in several respects about the
interpretation of the contract and how the contract
should be applied to the Burlingame facility. One of the
several disputes between Respondent and the Union in-
volved the way the employees were being classified by
Respondent for purposes of the contractual wage rates.
The Union, on behalf of the employees, took the position
that the employees should be classified for pay purposes
as installers rather than as trainees as Respondent had
23 Based on the testimony of Kneifel. Although there is really no sig-
nificant difference between Kneifel's and Joyce's version of Kneifel's ter-
mination interview, other than the fact that Kneifel's version was present-
ed in greater detail, I have credited Kneifel's version because demeanor-
wise he impressed me as a credible witness whereas Joyce, in terms of his
demeanor in general, gave me the impression that he was not a sincere or
reliable witness.
classified them. The difference in pay between the con-
tractual rate of pay for an installer and a trainee is sub-
stantial.
When the Burlingame facility employees in November
1980 learned they were represented by the Union and
covered by Rikal's contract with the Union, Kneifel,
who Scott Smith, the manager of the Burlingame facility,
knew was a strong union adherent, took the position that
the employees were not trainees as Respondent claimed
but were installers and should be paid the contractual
rate of pay for that classification. On November 19,
1980, Respondent Regional Manager Tony Joyce tried to
persuade Kneifel that the employees had been properly
classified by Respondent as trainees for wage purposes.
Kneifel rejected Joyce's arguments and made it plain to
him that he intended to grieve to the Union on behalf of
himself and the other employees in an effort to require
Respondent to pay them the contractual rate of pay for
installers and to otherwise comply with the terms of the
contract. Later that same day, November 19, in order to
discourage Kneifel from bringing the employees' griev-
ances to the Union's attention, particularly their wage
grievance, Joyce increased Kneifel's hourly rate of pay
fron $6 to $8.70 an hour, which is the rate of pay for in-
stallers under the contract. 2 4 Nevertheless, on November
24 Kneifel told Joyce that he still intended to contact a
representative of the Union and have the union repre-
sentative deal with Joyce about the employees' grievance
including their wage grievance. Immediately thereafter
on November 24 Joyce conferred with Facility Manager
Smith who then threatened Kneifel with reprisals if he
went through with his expressed intention of pressing the
employees' grievances through the Union. Smith warned
Kneifel that, if Respondent was required to comply with
the union contract, it would immediately lay off three
employees and inferred that Kneifel could be one of
those selected for layoff since the contract did not re-
quire that employees be selected for layoff on the basis
of seniority. Smith also warned Kneifel that the union
contract did not prohibit Respondent from stopping em-
ployees from using company vehicles on their personal
time and that it did not prohibit Respondent from chang-
ing the workweek from Monday through Friday to
Tuesday through Saturday, or from requiring the em-
ployees to redo their mistakes without pay. Despite
Smith's warnings, Kneifel, late in November, contacted
union representative Roberts and arranged for him to
24 That Kneifel's November 19 pay raise was motivated by a desire to
discourage him from going to the Union with the employees' wage and
other grievances is demonstrated by the following circumstances: (I) only
3 weeks earlier Kneifel had received a 75-cent-an-hour pay raise; (2) Re-
spondent failed to explain the reason for Kneifel's November 19 pay
raise; (3) Doug Mitchell, the manager of Respondent's headquarters fa-
cility in Santa Ana, admitted to employees Kneifel and Neal that the
policy of Respondent Vice President Kalin was to pay the employees a
wage which was significantly below the contract rate of pay, but that
every so often one or two employees would discover that Respondent
was not complying with the contract whereupon Kalin would "pay these
employees off" because he felt it was cheaper to pay one or two employ-
ees the contract rate than to pay all the employees that rate; and (4) im-
mediately after Kneifel indicated to Joyce that despite the pay raise he
intended to go to the Union, Respondent, through Facility Manager
Smith on November 24, 1980, threatened Kneifel with various reprisals if
Respondent were required to comply with the union contract.
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet with the employees so that the employees could
represent their grievances. The meeting took place late
in November at which time the employees elected Knei-
fel to act as their union shop steward. Respondent was
promptly notified by union representative Roberts that
Kneifel had been selected by the employees as their shop
steward and that the Union entended to press the em-
ployees' grievances including their wage grievance. Re-
spondent apparently took the position that the Rikal con-
tract did not apply to the Burlingame facility or to the
WellService work performed by the employees.
Immediately after discovering that Kneifel, despite his
substantial pay raise and the warnings issued to him by
Manager Smith, had gone to the Union with the employ-
ees' grievances, that the employees had met with a union
representative and appointed Kneifel as a shop steward,
and that the Union intended to press the employees'
grievances, Respondent Regional Manager Joyce, on ap-
proximately December 1, 1980, as I have found supra,
contemplated discharging Kneifel and other employees
employed at the Burlingame facility because of their
union activities in seeking the aid of the Union to require
Respondent to comply with the terms of the collective-
bargaining agreement. 2
During December 1980 Kneifel continued to act as the
employees' union shop steward. He met with the em-
ployees to discuss the situation involving the union con-
tract and stayed in touch with union representative Rob-
erts who on occasion phoned him at the Burlingame fa-
cility office. In January 1981 Kneifel visited the Regional
Office of the National Labor Relations Board with em-
ployee Peregrina and on January 9, 1981, along with
other employees, submitted an expense voucher claiming
subsistence pay computed according to the union con-
tract. Manager Smith refused to authorize these vouch-
ers, but upon Kneifel's insistence agreed to submit Knei-
fel's voucher to Vice President Kalin.
During December 1980 and January 1981 Respondent,
through Manager Smith, tried to keep informed about
Kneifel's union activities. In December Smith asked
office clerical Peregrina whether Kneifel had been in
touch with the Union and whether Kneifel was planning
to ask for a higher wage rate; he also aksed whether Per-
egrina and Kneifel were discussing the Union. On several
occasions in January 1981, Smith asked Peregrina wheth-
er Kneifel had been in contact with the Union or had
talked to union representative Roberts and whether Rob-
erts had phoned the office asking for Kneifel. Peregrina
answered in the affirmative. Also in the middle of Janu-
ary 1981 Smith learned that Kneifel had visited the
Board's Regional Office with Peregrina and Smith asked
~ I recognize that this finding is based in substantial part on Joyce's
memo of December 1, 1980, which was removed from Respondent's
premises without permission. There is no showing or contention that the
Government was a party to this unauthorized taking or that the docu-
ment was taken for the purpose of aiding the Government in its case
against Respondent. In fact, according to Joyce's testimony, it was taken
several months prior to the filing of the charge in the instant proceeding
and prior to Kneifel's discharge. Under all the circumstances I am of the
view that, despite the fact that it was taken without permission from Re-
spondent, Joyce's December 1 memo has been properly considered in
evaluating Respondent's motivation in the instant case. See N.L.RB. v.
South Bay Daily Breeze, 415 F.2d 360 (9th Cir. 1969).
Peregrina what she and Kneifel were planning on doing
going to the Board.
Late in December 1980 Doug Mitchell, the manager
of Respondent's headquarters facility in Santa Ana
where Regional Manager Joyce maintains his office,
while talking with Kneifel and employee Neal about the
fact that the employees had grieved to the Union about
Respondent's failure to comply with the union contract,
informed them that Respondent's management consid-
ered Kneifel to be a "troublemaker" and that because of
this Kneifel, in Mitchell's opinion, had nothing to lose by
pursuing his grievance or going to the Government.
In summation, the record shows that Respondent and
the Union were engaged in a dispute over the application
of the contract between Rikal and the Union to the oper-
ation of Respondent's Burlingame facility, that Respond-
ent sought to discourage Kneifel from seeking the assist-
ance of the Union to remedy the employees' contractual
grievances by bribing him with a substantial pay raise
and threatening him with reprisals, that despite Respond-
ent's coercion Kneifel went ahead and arranged for the
employees to meet with a union representative and there-
after agreed to represent the employees on behalf of the
Union as their union steward. The record further estab-
lishes that Respondent regarded Kneifel as a "trouble-
maker" because of his union activities, that it contemplat-
ed discharging him with other employees because they
had sought the assistance of the Union to remedy their
grievances, and that during December 1980 and January
1981 Respondent, through Facility Manager Smith, kept
Kneifel's activities as union steward under close scrutiny.
All these circumstances, plus the fact that prior to Knei-
fel's union activities management regarded him as an out-
standing employee with the potential to become a
member of management, the additional fact that his dis-
charge on January 28, 1981, took place immediately after
he had commenced his union activities despite Respond-
ent's opposition to such conduct, and the fact that con-
trary to past practice Facility Manager Smith was not
even consulted about Kneifel's discharge but learned
about the discharge after the fact,2 6 have led me to con-
"2 The record establishes that prior to Kneifel's discharge, during the
period Smith had been the manager of the Burlingame facility, 10 em-
ployees were discharged and in each case, except for Kneifel's discharge,
Smith either made the decision himself without consulting higher man-
agement or effectively recommended the discharge. Smith testified Knei-
fel's discharge came as a surprise to him because he had not recommend-
ed nor was he even consulted about the discharge and the subject of dis-
ciplining Kneifel had not even been discussed with him. Regional Man-
ager Joyce, who discharged Kneifel, testified he discharged Kneifel with-
out consulting with Smith. Neither Joyce nor Smith advanced an expla-
nation for Joyce's deviation from past practice by failing to even consult
with Smith prior to deciding to discharge Kneifel. Respondent, in its
post-hearing brief, suggests that the reason Joyce deviated from past
practice in handling Kneifel's discharge was that Kneifel shared an apart-
ment with Smith and for Joyce to have made Smith a party to Kneifel's
discharge would have placed a strain on their friendship. I reject this
contention. On November 24, 1981, as I have found supra, Joyce had no
compunctions against having Smith threaten Kneifel with reprisals in an
effort to dissuade him from going to the Union with the employees'
grievances. Moreover, at the time of Kneifel's discharge Joyce knew that
Smith had no qualms about disciplining his roommate because, as I have
found supra, on January 26 Smith only too readily suggested that Joyce
take disciplinary action against Kneifel for keeping a company motor ve-
Continued
560
RIKAL WEST, INC.
clude that the General Counsel has made a prima facie
showing that a motivating factor in Respondent's deci-
sion to discharge Kneifel was Kneifel's union activities,
specifically that Kneifel had sought the assistance of the
Union and was aiding the Union in the policing of its
collective-bargaining agreement.
Having concluded, supra, that the General Counsel has
made a prima facie showing that Kneifel's union activity
was a motivating factor in Respondent's decision to dis-
charge him, I shall evaluate Respondent's reasons for dis-
charging him. In doing so I have used the Board's
Wright Line analysis wherein "once [a prima facie show-
ing] is established the burden will shift to the employer
to demonstrate that the same action would have taken
place even in the absence of the protected conduct."
Wright Line a Division of Wright Line, Inc., 251 NLRB
1083, 1089 (1980). Since the Board "views the employ-
er's asserted justification as an affirmative defense," 27 by
"demonstrate" the Board apparently means that the
burden of persuasion on the ultimate issue shifts to the
employer, not merely the burden of going forward with
evidence to rebut the prima facie case. At least two
courts of appeals have rejected this aspect of the Board's
Wright Line doctrine and have held that, while an em-
ployer has the burden of going forward with evidence to
rebut the General Counsel's prima facie case, at no time
does the burden of persuasion on the ultimate issue of the
existence of a violation shift to the employer, but at all
times remains with the General Counsel. See Behiring In-
ternational, Inc. v. N.LR.B., 109 LRRM 3265, 93 LC ¶
13,392 (3d Cir. 1982), and N.LR.B. v. Transportation
Management Corp., 109 LRRM 3291, 95 LC ¶ 13,919 (lst
Cir. 1982). In evaluating Respondent's defense I have
adopted the courts' approach in order to avoid the possi-
bility of a remand.
b. Respondent's defense
Tony Joyce, Respondent's regional manager, testified
that he was the person who decided to discharge Knei-
fel, and that he reached this decision on the evening of
Tuesday, January 27, 1981.28 Joyce further testified that
hide over the weekend. These circumstances, plus Joyce's failure to ex-
plain why in the case of Kneifel's discharge he did not even consult with
Smith but instead deviated from Respondent's past practice of having
Smith handle the discharges of personnel under his supervision, have per-
suaded me to reject Respondent's post-hearing argument justifying
Joyce's unusual conduct.
21 Id. at 1084, fn. 5, 1088, fn. 11.
28 Joyce initially testified without qualification that his decision to dis-
charge Kneifel was made on the evening of January 27, 1981, but later
testified that his purpose in meeting with Kneifel on January 28 was to
inform him of his termination "unless something came out of that session
to end up on a 10-day suspension, which had been almost a norm we had
established in the past for vehicle violations." Insofar as this indicates
that Joyce still had an open mind about Kneifel's employment status, I
reject his testimony because in terms of his testimonial demeanor Joyce
did not impress me as being either a sincere or a reliable witness and, as I
have found infra, his testimony about the closely related matter of wheth-
er he attempted to speak to Kneifel on January 27 before deciding to dis-
charge him was false. Also the fact that when Joyce met with Kneifel on
January 28 he had an envelope with Kneifel's final pay with an itemized
accounting of the hours for which Respondent owed Kneifel strongly
suggests that Joyce's January 27 decision to discharge Kneifel was a final
one. This inference is also warranted from the fact that prior to Joyce's
meeting with Kneifel on January 28 Manager Mitchell, who had come to
the Burlingame facility with Joyce from Santa Ana, phoned Smith, who
Kneifel's union activity was not the reason for his dis-
charge but that Kneifel was discharged because of the
cumulative effect of his tardiness, his mishandling of the
WellService inventory during Smith's vacation, his fail-
ure to return a company vehicle on January 24, 1981,
and "a general lack of willingness to discuss these items
on [Kneifel's] part." I shall set out and evaluate the evi-
dence pertinent to each one of these reasons.
(1) Kneifel's tardiness
The record shows that throughout his employment
Kneifel was frequently late for work and that Kneifel
and employee Neal were the two employees most fre-
quently late for work. In the spring of 1980 Kneifel was
issued a written disciplinary warning because of his tardi-
ness and suspended for I day and thereafter, in October
1980, both Neal and Kneifel were suspended for 1 day
because of their tardiness. Despite Kneifel's tendency to
be late for work, on September 15, 1980, Smith evaluat-
ed him as a good employee and recommended a substan-
tial pay raise for him. On October 27, 1980, Joyce ap-
proved this recommendation despite the fact that Kneifel
had been suspended twice for tardiness. Three weeks
later Joyce granted Kneifel an even greater pay raise.
On Monday, January 19, 1981, Kneifel was approxi-
mately I hour late for work. On Monday, January 26, he
was 19 minutes late. On Friday, January 23, he was late
by almost 1-1/2 hours, but the record establishes that his
tardiness on this date was excusable and Smith knew
this. As I have found supra, on January 23 Kneifel was
sick with colitis and informed office clerical Peregrina
that he was sick and because of this would not be able to
work that day. Peregrina informed Kneifel that without
him Respondent would not have enough employees to
do the available work scheduled for the day. Upon hear-
ing this Kneifel told Peregrina that he would come to
work even though he was sick. Peregrina informed
Smith that Kneifel had phoned in sick but when she had
told him they needed him he had agreed to come to
work. Nevertheless, on January 27 Smith issued Kneifel
a written disciplinary warning for being tardy on Janu-
ary 23 as well as on January 19 and 26. The warning
also stated that Kneifel was tardy for work January 21, a
date on which Kneifel was not tardy but was absent
from work because of illness. Smith did not explain why
he disciplined Kneifel for being tardy on January 23
when he knew Kneifel had a valid excuse for being late
that day. Nor was Smith able to explain why Kneifel
was disciplined for being tardy January 21, a day when
he in fact was absent from work due to illness. 29
The disciplinary warning issued to Kneifel on January
27 for his tardiness states that "due to his tardiness the
operation of this office is being affected." No evidence
was out of town, and asked whether Smith's hours for Kneifel were cor-
rect because Kneifel was being terminated.
g29 Initially Smith testified he was unable to explain why he disciplined
Kneifel for being late for work on January 21 when in fact Kneifel was
not at work due to illness that day. But he then later testified he marked
Kneifel as being late because Kneifel did not call in until 8:55 a.m. to say
that he was going to be out sick. Smith, in terms of his demeanor, did not
impress me as being a truthful witness when he belatedly presented this
testimony.
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was presented by Respondent to show that in fact this
was true. Kneifel's credible and undenied testimony is
that no one ever informed him that his tardiness had
caused any inconvenience to Respondent or otherwise
adversely affected Respondent's operation. And the
record reveals that during the time material to this case
Kneifel's tardiness did not adversely affect Respondent's
business operations. (G.C. Exh. 17.)
It is undisputed that during the time material herein
employee Shaun Neal was late more frequently than
Kneifel. Commencing late in November 1980 and con-
tinuing thereafter Neal was late for work 45 percent of
the time, yet was not issued a disciplinary warning or
otherwise disciplined even though he had been suspend-
ed 'or tardiness in October 1980. Instead, Smith simply
"talked" to him about his tardiness. When Neal informed
Smith and Joyce that it was difficult for him to get to
work on time due to the bus schedule from his residence
to the facility, he was told that this was not a good
excuse but that he was expected to get to work on time.
Nonetheless, Neal continued to be late for work approxi-
mately 45 percent of the time and during the week
ending December 12 was late twice by 1 hour or more.
Neal was not given a written warning or otherwise
threatened with discipline.
In summation, an examination and an evaluation of the
evidence pertinent to that part of Respondent's defense
which is based on Kneifel's tardiness show that Kneifel
was frequently tardy and that prior to his union activities
had been disciplined for his tardiness, but nonetheless
had been regarded by Respondent as an outstanding em-
ployee deserving of a substantial pay raise. The record
further reveals that whereas, after his union activities,
Kneifel continued to be tardy for work, his fellow em-
ployee Shaun Neal during this same period had an even
worse tardiness record. But whereas Kneifel was threat-
ened with discipline and issued a written disciplinary
warning because of his tardiness, Neal was not either
threatened with discipline or issued a disciplinary warn-
ing even though he had been suspended because of tardi-
ness in October 1980. Also, the record reveals that the
disciplinary warning issued to Kneifel for his tardiness
during January 1980 was untrue insofar as it stated that
"due to his tardiness the operation of this office is being
affected" and stated that he had been late for work 4
days when in fact he was only late 3 days. Moreover,
the warning is distorted in view of the fact that for one
of the days in which Kneifel was late' he had an excellent
reason for being late which was known to Manager
Smith at the time Smith issued him the disciplinary
warning.
(2) Kneifel's failure on January 24 to return a
company motor vehicle
3 0
In 1980, prior to June 18, Respondent's Burlingame fa-
cility employees were allowed to use company motor ve-
30 On Monday, January 26, 1981, Kneifel did not return from a job in
Fresno, California, until 10:30 p.m., so he went straight home with the
company vehicle even though he did not have permission. The record
reveals that Joyce, in discharging him, did not in any way rely upon this
conduct. In fact, Joyce apparently did not even know about it. The
record reveals that Manager Smith had no knowledge of this incident. I
hidcles for transportation to and from work and were also
permitted to use the vehicles for personal purposes so
long as they paid for the gasoline. This changed on June
18, 1980, when Regional Manager Joyce by memo in-
formed the employees of the Santa Ana and Burlingame
facilities that, among other things, "No company vehicle
will be used for private purposes." Thereafter, the em-
ployees at the Burlingame facility were no longer permit-
ted to use a company vehicle for private purposes, but
were allowed to use a company vehicle for transporta-
tion to and from work and in fact a substantial number
of the employees regularly did so. Then, late in Novem-
ber 1980, the employees were informed that they could
no longer use company vehicles for transportation to and
from work. 3 1 The employees were informed, however,
that this policy was not inflexible and that under proper
circumstances an employee could take the company ve-
hicle he was using home provided he secured the permis-
sion of supervision.
32 And, in fact, employees thereafter,
upon request, were occasionally granted permission to
take the company motor vehicle they were using home
at the end of the workday.
Subsequent to the institution of the new policy late in
November 1980 the first employee to breach the policy
was Kneifel who, as I have described in detail supra, on
Saturday, January 24, 1981, while working "on call"
drove his company vehicle home in the early afternoon
after finishing his initial service calls and remained on
call at home for the balance of the workday and thereaf-
ter left the motor vehicle parked in his apartment park-
ing lot for the weekend instead of returning it to the
Company that Saturday.
3 3 Kneifel did this without
Smith's permission. Smith, who shared the same apart-
ment with Kneifel, realized what had happened as early
as the evening of Saturday, January 24, yet said nothing
to Kneifel. On the next workday, Monday, January 26,
also note that Smith testified that considering the circumstances involved
he was not certain Kneifel's conduct in taking the company vehicle home
on January 26 was a matter for discipline.
SL This change in policy was announced hard on the heels of Facility
Manager Smith's warning to Kneifel on November 24, 1980, that, if Re-
spondent was required to abide by the union contract, it did not have to
allow the employees to use company motor vehicles for transportation to
and from work because the contract did not require this. However, there
is insufficient evidence in the record to establish that Respondent
changed its motor vehicle policy because of the employees' union activi-
ties.
3S As I have found supra, on November 24 Regional Manager Joyce
informed employees Neal and Kneifel and Manager Smith that the new
policy prohibiting employees from taking company vehicles home would
not be enforced inflexibly but that under proper circumstances Joyce, as
regional manager, Smith, as manager, and Kneifel, as senior WellService
technician, had the authority to authorize exceptions to the policy. It is
clear, however, that Joyce's intent was to authorize Kneifel to make ex-
ceptions to this policy only when Kneifel was substituting for Smith, in
Smith's absence. And it is also clear that Kneifel understood that this was
the intent behind Joyce's statement because at no time did Kneifel either
to Smith or at the hearing justify his failure to return the company vehi-
cle on January 24 on the ground that he had been led to believe by Joyce
that even when Smith was present he could engage in such conduct
without Smith's permission.
as The apartment complex parking lot where Kneifel kept the motor
vehicle for the weekend was patroled by security guards whereas Re-
spondent's unfenced parking area was not patroled. The fact that Knei-
fel's parking lot was patroled by a security service was known by Smith
since he shared an apartment with Kneifel.
562
RIKAL WEST, INC.
still without having mentioned the matter to Kneifel,
Smith phoned Regional Manager Joyce at the start of
the workday and told him Kneifel that weekend had
kept a vehicle without permission which Smith suggested
would give Joyce an opportunity to terminate Kneifel.
The same day Joyce sent a Western Union mailgram to
Kneifel notifying him, "You are hereby placed on warn-
ing that your failure to return company vehicle to office
after close of business on Saturday, January 24 is a fla-
grant violation of company rules and regulations. I will
notify you before close of normal working hours on
Wednesday, January 28 re resolution of this matter."
With respect to how Respondent, after it instituted its
policy forbidding its employees from taking company ve-
hicles home, has treated other employees who have
failed to return company vehicles to the Company's
premises, the record reveals the following. In early De-
cember 1980 employee Thomas West was fired when he
took a company vehicle home without permission after
work and the vehicle, while parked at West's home, was
burglarized resulting in the loss of computer terminals
and tools. In February 1981 employees Greg Simko and
Ken Leible, after failing to return their company vehicles
at the end of the working day and coming to work 2-1/2
hours late the next day which caused a disruption of the
Company's work schedule and service, were suspended
for 10 days. On February 28, 1981, Shaun Neal took a
company vehicle home without receiving permission for
which he received a written disciplinary warning. There-
after, on Saturday, March 7, 1981, Neal again without
permission failed to return a company vehicle. The result
was that on Sunday, March 8, Smith phoned Neal to
return the vehicle to the Company's office immediately.
There is no evidence that Neal was issued a written
warning or otherwise disciplined on this occasion. Final-
ly, in April 1981 on a Saturday, Neal, after being denied
permission by Joyce to keep the company vehicle he was
using at home, went ahead and kept the vehicle anyway
for which he was discharged.
In summation, the record reveals that at the end of the
workday on Saturday, January 24, when, in violation of
company policy, Kneifel failed to return the company
vehicle he was using without Smith's permission, that
Smith, instead of saying something to him about the
matter, phoned Regional Manager Joyce and suggested
that Joyce use this violation of company policy as a
means to discharge Kneifel. The record also reveals that
Respondent does not in all cases regard the taking home
of a company vehicle by an employee as a dischargeable
offense let alone an offense which warrants disciplinary
action. Employees Simko and Leible were only given 10-
day suspensions for failing to return their company vehi-
cles and for reporting to work the next day 2-1/2 hours
late which resulted in the disruption of the Company's
work schedule and service. On one occasion employee
Neal was only issued a written disciplinary warning for
taking home a company vehicle without permission and
on a second subsequent occasion Neal was not even dis-
ciplined for failing to return a company vehicle which he
had used while on call on a Saturday. Instead, Smith
merely phoned him on Sunday and told him to return
the vehicle immediately. Smith's treatment of Neal
stands in particularly sharp contrast to his treatment of
Kneifel during the weekend of January 24-25. Smith said
nothing to Kneifel about the matter, but instead on
Monday phoned Joyce and suggested that Kneifel be ter-
minated for his misconduct.
(3) Respondent's dissatisfaction with Kneifel's
WellService inventory work during Smith's
vacation
WellService is an electronic capture service which
Wells Fargo Bank sells to merchants which enables the
merchants to check their customers' credit cards and
checks. Respondent has a contract with Wells Fargo to
install and maintain the terminals which operate this
service. These terminals are owned or leased by Wells
Fargo. Pursuant to this contract Respondent is obligated
to submit to Wells Fargo on a weekly basis an inventory
report on all the terminals including the whereabouts of
the terminals and a notation of terminals which were re-
moved and/or installed that week. The job of compiling
the weekly inventory report is not a simple clerical task
but requires that the person who prepares the report
check the daily information submitted by the WellSer-
vice technicians. If the reports submitted by the techni-
cians are inaccurate or omit relevant information it takes
as much as 2 to 3 days for a person to compile the
weekly inventory report. The record reveals it is unusual
for the technicians to omit or submit inaccurate informa-
tion thereby making the job of the person preparing the
weekly report extremely difficult, delaying the submis-
sion of the weekly report and affecting the accuracy of
the report.
Prior to June 1980 Smith prepared the weekly inven-
tory reports, but the reports were totally disorganized, so
in June 1980 Kneifel was assigned this job and instructed
to "get the place in order" because Wells Fargo intended
to audit the inventory. From June 1980, when Knefiel
took over the job of preparing the WellService weekly
inventory report, up to the time of Smith's vacation in
late December 1980, the reports submitted by Kneifel
were usually submitted late and usually contained inaccu-
racies. In fact, it was not uncommon for the report to be
a week late and to be submitted only after a phone call
from Kim Weppner, the Wells Fargo inventory control-
ler, inquiring about the overdue report. The main reason
for the late reports and the inaccuracies in the report
was that the technicians constantly were either omitting
to submit information or submitting inaccurate informa-
tion to Kneifel, which required substantial investigation
thereby causing Kneifel to spend an inordinate amount of
his worktime preparing the WellService inventory re-
ports. Inasmuch as Kneifel was also expected to perform
the usual installation and maintenance work in the field,
his weekly inventory reports were usually submitted late
and contained inaccuracies. And from June 1980 up to
the time of Smith's vacation in December 1980, Smith
continually complained to Kneifel about the lateness of
the reports and the inaccuracies. In response Kneifel ex-
plained to Smith about the problem he was having with
the technicians either omitting data or transmitting incor-
rect data and named the offending technicians. Smith re-
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied that he would talk to the technicians. The record is
silent as to whether Smith, in fact, ever made any effort
to resolve this problem by talking to the technicians. In
any event, it is undisputed that from June 1980 right up
to Kniefel's discharge the problem of the technicians sub-
mitting inaccurate information or no information was a
continuing problem which was never solved.
Despite the fact that from June 1980 to the latter part
of December 1980 the weekly WellService inventory re-
ports prepared by Kneifel were commonly 1 week late
and contained inaccuracies, Joyce testified that he was
more than satisfied with the way that Kneifel was han-
dling this job during that period. Indeed, Smith's Sep-
tember 15, 1980, job evaluation of Kneifel's work, which
was approved by Joyce on October 27, 1980, and which
resulted in Kneifel receiving a substantial pay raise,
stated in pertinent part, "[Kneifel] has done very well
with inventory status reports. WellService is very im-
pressed with the job performance ... ."
Late in December 1980 and early in January 1981,
from December 18 to January 5, 1981, Smith was absent
from work on vacation. During this period which en-
compassed the Christmas and New Year's holidays Re-
spondent only operated 4 days a week. During the first 2
days of the first full week of Smith's absence, Monday,
December 22, and Tuesday, December 23, Joyce came
to the Burlingame facility from Santa Ana and substitut-
ed for Smith. And, during the first 2 days of the second
week, Monday, December 29, and Tuesday, December
30, the manager of the Santa Ana facility, Doug Mitch-
ell, came to the Burlingame facility and substituted for
Smith. During the remaining period of time Kneifel as-
sumed Smith's responsibilities. In addition, Kneifel,
throughout this period, continued to perform his usual
installation and maintenance work in the field.3 4
It is undisputed that, prior to Smith's departure for va-
cation, Kim Weppner, Wells Fargo's inventory control-
ler, expressed concern to Smith that in Smith's absence
there would be an interruption in the submission of the
weekly inventory reports. Smith assured him that there
would be no interruption and instructed Kneifel that
there should be no interruption in the submission of the
weekly inventory reports during Smith's vacation. Nev-
ertheless, Kneifel failed to submit the weekly inventory
reports to Wells Fargo during Smith's absence. The re-
ports for the weeks ending December 1935 and 26 and
January 6 were not submitted until after Smith's return.
Weppner, sometime during this period, phoned and
spoke to Kneifel and asked why he was not receiving the
weekly inventory reports. Kneifel told him that due to
Smith's absence the office was disorganized and that
34 The finding that Joyce and Mitchell were in charge of the Burlin-
game facility in place of Smith on those days they were present and that
they were present on December 22-23 and December 29-30, respective-
ly, is based on the testimony of office clerical Peregrina. The finding that
Kneifel during Smith's vacation spent a great deal of his time in the field
is based on his uncontradicted testimony. I reject Joyce's testimony that
Joyce and Mitchell were not in charge of the facility but were there to
simply do whatever Kneifel wanted them to do. Joyce demeanorwise im-
pressed me as an insincere and unreliable witness whereas Peregrina im-
pressed me as a credible witness.
35 As noted earlier Smith left on his vacation at the close of business
on Wednesday, December 17, 1980
since it was a holiday period there was more business for
them to handle.
On Monday, January 5, 1981, Smith returned from his
vacation and on that day Weppner phoned and told him
that he was unhappy because he had not received any of
the weekly inventory reports during Smith's absence.
Weppner asked that Smith remedy the situation immedi-
ately by submitting the missing reports and to meet with
him to discuss the matter. Smith immediately spoke to
Kneifel and asked him why none of the weekly inven-
tory reports had been prepared during Smith's absence.
Kneifel told him that it was so busy during that period
that he was unable to do them. Thereafter, Smith and
Kneifel and Peregrina, apparently that day, "more or less
got the [weekly inventory reports] up to date" and Smith
hand delivered them to Wells Fargo that day or the
next.3 6
On January 7, 1981, Weppner met with Smith and told
him that during Smith's 2-week vacation Wells Fargo
had experienced the following problems with the weekly
inventory reports, also known as weekly status updates:
1. The written copies of the Weekly Status Up-
dates were not delivered to WellService, as has
been the accepted procedure.
2. The Rikal technicians were not communicating
inventory changes in the field to the office person
responsible for compiling the information and trans-
mitting it to WellService.
3. Merchant Signature Request Forms for remov-
als from purged accounts were not forwarded to
WellService.
4. Requests for a report of the movement of in-
ventory into and out of the Rikal warehouse were
not consistently complied with.
ae Smith testified that Kneifel's explanation that during Smith's vaca-
tion he was too busy with his other work to do the weekly inventory
reports was untrue, "because all the other weeks prior to these 2 weeks
of my vacation they [referring to the weekly inventory reports] were get-
ting in on a timely basis." This is false as Weppner, a disinterested wit-
ness, testified that the weekly inventory reports were commonly submit-
ted I week late and submitted only after Weppner inquired about their
whereabouts. Smith then testified that even if it was busy during his va-
cation Kneifel still should have submitted the inventory reports on time
because the job of compiling them was a simple clerical job with all of
the work already having been done by office clerical Peregrina and the
technicians. This is also false inasmuch as the record reveals that the
work of preparing the weekly inventory reports has always been a time-
consuming task and requires that Kneifel conduct his own independent
investigation. In fact, ultimately Smith reluctantly admitted that the job
was a difficult and time-consuming one which could take as much as 2 or
3 full workdays. Finally, apparently realizing that the reasons he had
given for disbelieving Kneifel's explanation were inherently implausible,
Smith belatedly testified that the maintenance and installation records
maintained by Respondent for the period of Smith's vacation showed that
it was not a busy work period. Demeanorwise Smith was not a convinc-
ing witness when he gave this testimony nor were the records produced
to corroborate this testimony. These circumstances, when viewed in the
light of Smith's previous false testimony on this subject and Kneifel's
credible testimony that during Smith's absence he was working in the
field and the fact that during a portion of Smith's vacation Kneifel was in
charge of the facility, have persuaded me to reject Smith's testimony that
Kneifel lied when he told Smith that he was unable to prepare the inven-
tory reports due to the pressure of other work.
564
RIKAL WEST, INC.
Weppner stressed to Smith that Wells Fargo's "main
concern was to assure the continued open flow of accu-
rate data between Rikal and WellService." Smith assured
him the problem was being addressed so there would be
no further incidents of a similar nature.
On January 7, 1981, Smith promptly notified Regional
Manager Joyce about his meeting with Weppner and
what Weppner had stated to him. Joyce instructed Smith
to discover what the deficiencies were so that Joyce
would be prepared for the regular quarterly review
meeting between representatives of Respondent and
WellService which was scheduled for the middle of Jan-
uary 1981.
On approximately January 15, 1981, representatives of
Respondent and WellService held their regularly sched-
uled quarterly meeting. Present for Respondent were
Joyce and Smith and for WellService Kim Weppner,
Cindy Morey, the head of installation maintenance, and
Geri Kraft, Weppner's immediate supervisor. Morey reit-
erated what Weppner had stated to Smith on January 7,
1981, and emphasized that Well Fargo found what had
happened during Smith's vacation as being totally unac-
ceptable and stated it could not happen again and that
Morey was extremely upset over what had happened. 37
On January 23, 1981, Joyce sent a memo to Kneifel
captioned "Subject: Confirmation of verbal instructions to
you from your office manager":
Effective January 19, 1981 you are relieved of all
responsibility to oversee the general inventory of
terminals maintained at the Burlingame Office.
The reason for this action is the totally unprofes-
sional manner in which this responsibility was han-
dled during the period of 12/22/80 through
1/16/81:
a. No weekly reports were made for 3 weeks.
b. Reports were inaccurate.
c. Unprofessional verbal communications with
the customer.
d. Continual verbal assurances to me that these
items were being maintained and reported on a reg-
ular basis.
The impact of this has damaged the credibility of
this company with its' customer, and further action
in this matter will be taken.
The January 23 memo was erroneous insofar as it indi-
cates that its contents already had been discussed with
Smith who in turn had already discussed the contents
with Kneifel. Thus, on January 27, 1981, when Kneifel
received the memo Smith admitted that it was a surprise
to him that Kneifel had been relieved of the responsibili-
ty of preparing the weekly inventory reports. No expla-
37 The description of what took place at this meeting is based on the
credible testimony of Kim Weppner. a disinterested witness. I rejected
Joyce's testimony that during this meeting the WellService representa-
tives stated that "they are prepared to exercise the 30 day cancellation
clause of the contract if there was not an immediate improvement in this
inventory reporting situation." Neither Weppner nor Smith corroborated
this testimony and, in terms of his demeanor when he presented this testi-
mony, Joyce did not impress me as an honest witness.
nation was advanced for Joyce's failure to consult with
Smith about the matters contained in the memo prior to
the issuance of this memo or at least prior to its receipt
by Kneifel.
WellService's complaints were concerned with what
had happened during the period ending January 5, 1981,
while Smith had been away on vacation. The January 23
memo reprimands Kneifel for the way he handled the
job during the further period from January 5 through
January 16, 1981. No evidence was presented by Re-
spondent to support a finding that during this latter
period Kneifel misconducted himself in preparing the
weekly inventory reports. Nor was any explanation of-
fered for the inclusion of that period in the memo.
There is absolutely no evidence in the record to estab-
lish that, as alleged in the January 23 memo, Kneifel was
guilty of "unprofessional verbal communications with the
customer." Kneifel's credible and undenied testimony is
that the first time he ever heard he was guilty of such
conduct was on January 27 when he received a copy of
the memo. No explanation was offered for the inclusion
of this allegation of misconduct.
There is absolutely no evidence in the record to estab-
lish that, as alleged in the January 23 memo, Kneifel was
guilty of continual verbal assurances to Joyce during
Smith's vacation that the weekly inventory reports were
being maintained and reported on a regular basis. Knei-
fel's credible and undenied testimony is that he gave no
such assurances at any time to Joyce. No explanation
was given for the inclusion of this allegation in the
memo.
In summation, the record established that, insofar as
Joyce relied on Kneifel's mishandling of the weekly in-
ventory reports as a justification for his discharge,
Joyce's reasons for this are set out in the January 23
memo relieving Kneifel from performing this part of his
job. As I have found supra, the reasons set forth in this
memo to justify Joyce's action against Kneifel are in sub-
stantial part false, 38 and in other respects involve con-
duct which, based on what had taken place during the
several months prior to Smith's vacation, Respondent
must have known was not Kneifel's fault. Thus, for the
several months prior to Smith's vacation Respondent had
held Kneifel's weekly inventory report work in high
esteem even though the reports were usually submitted I
week late and contained inaccuracies. The reason Re-
spondent not only condoned this conduct but regarded
Kneifel's work as outstanding was that, as described
above, Respondent realized that the job of preparing the
weekly inventory reports was a time consuming and dif-
ficult task and also knew that as a matter of course Re-
spondent's technicians either omitted to supply informa-
tion or supplied Kneifel with inaccurate information for
these reports and that in order to minimize the number
of inaccuracies in the reports Kneifel was required to
38 As I have found supra. there is no evidence that Kneifel miscon-
ducted himself with respect to the weekly inventory reports during the
period from January 5 through January 16 or that during the period
when Smith was vacationing Kneifel engaged in unprofessional communi-
cation with WellService personnel or gave assurances to Joyce that the
weekly inventory reports were being maintained and reported on a regu-
lar basis.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct an independent check of the data submitted by
the technicians. Under the circumstances it could hardly
have come as a surprise to Respondent that during
Smith's vacation Kneifel was unable to produce the
weekly inventory reports while at the same time per-
forming his other work as a technician and substituting
on 6 of the 10 working days for Smith during his ab-
sence. Moreover, even assuming Kneifel was at fault for
failing to produce the weekly inventory reports during
Smith's absence, Joyce's conduct in attributing several
other types of misconduct to Kneifel in the January 23
memo, which are completely without substance, war-
rants the inference that Joyce realized that under the cir-
cumstances disciplining Kneifel for merely failing to
submit the inventory reports in a timely manner was un-
reasonable, so Joyce was compelled to manufacture
other instances of misconduct in order to justify the dis-
cipline. Lastly, also relevant in evaluating Joyce's pro-
fessed reasons for disciplining Kneifel for his conduct in
connection with the weekly inventory reports is Joyce's
failure to even consult with Manager Smith about the
discipline. Thus, the January 23 memo, on its face, indi-
cates that Joyce consulted with Smith or at the very
least had talked with Smith about Kneifel's discipline.
However, it is undisputed that the memo came as a sur-
prise to Smith who was not consulted about it by Joyce
and first learned on January 27 that Joyce had relieved
Kneifel of his responsibility for the weekly inventory re-
ports. I think it is a fair inference that Joyce's reason for
not consulting with Smith about this matter is that Joyce
knew that the majority of the acts of misconduct attrib-
uted to Kneifel in this memo were either completely
without substance or did not justify relieving him from
the responsibility of this duty which, considering the cir-
cumstances, he had performed in an exemplary manner
for the past several months.
(4) Kneifel allegedly refuses to speak to Joyce and
explain his misconduct thus forcing Joyce to
discharge him
Joyce testified that, on the morning of January 26,
1981, when Smith told him that on Saturday, January 24,
Kneifel had kept a company vehicle at his apartment
without Smith's permission, Joyce told Smith that he
wanted to speak to Kneifel about this matter, but Smith
informed Joyce that Kneifel had not reported for work
yet. That Joyce asked to talk to Smith on this day is not
corroborated by Smith's testimony and there is no evi-
dence that on January 26 before Kneifel left for his work
assignment Smith informed him that Joyce wanted to
talk to him.
Joyce further testified that, before deciding what if
any discipline should be handed out to Kneifel, it was
Joyce's intent to afford Kneifel an opportunity to explain
his actions because Joyce regarded Kneifel as a valued
employee who Joyce felt had the potential to be a part
of management. And, with this in mind, Joyce testified
that on the morning of January 27 he phoned the Burlin-
game facility and told Peregrina and Smith that he
wanted to talk with Kneifel; he explained to Smith that
the reason he wanted to talk to Kneifel was to get an ex-
planation for his recent misconduct. When Peregrina and
Smith advised him that Kneifel was out of the office
making service calls, Joyce testified he told them to con-
tact Kneifel in the field and have him phone Joyce and
that they indicated they would do so. Nevertheless, it is
undisputed that neither Peregrina nor Smith contacted
Kneifel and advised him that Joyce wanted to talk with
him. However, late in the afternoon on January 27, 1981,
Joyce testified that Smith phoned him and told Joyce
that "[Kneifel's] attitude was sue me." Joyce testified
that at this point he concluded Kneifel was not going to
speak to him and explain his recent misconduct, so Joyce
decided that his only alternative was to discharge Knei-
fel. Specifically, Joyce testified that, in view of Smith's
statement and Kneifel's failure to contact him, at the
close of business on January 27, "I accepted that as the
fact there would be no communication and [that] termi-
nation rather than suspension was in order."
I reject Joyce's above-described testimony in its entire-
ty because I am convinced that it was a fabrication and
that Joyce, at no time, prior to deciding on January 27 to
discharge Kneifel, ever attempted to get in touch with
Kneifel and talk with him about his misconduct. I have
reached this conclusion based upon these considerations:
First, when Joyce gave the above testimony his manner
of testifying, his demeanor, was insincere and without
conviction; second, Joyce's testimony that later in the
afternoon of January 27 Smith informed him that "[Knei-
fel's] attitude was sue me" is contradicted by Smith's tes-
timony. Smith testified that prior to Kneifel's discharge
he only discussed Kneifel's work performance or attitude
once with Kneifel and that the sole conversation took
place on Friday, January 23, the week before Smith
went to Reno, Nevada,3 9 and that the only thing that
Smith told Joyce about Kneifel during this conversation
was that "I was concerned about Kneifel's attitude
toward his job and why his decline in his work was hap-
pening"4 0 and that Joyce replied, "he would look into
it"; third, Smith did not corroborate Joyce's testimony
that, as described above, on January 26 and 27 Joyce
asked Smith to have Kneifel phone him; fourthly, Pere-
grina, who impressed me in terms of her demeanor as a
credible witness, specifically contradicted Joyce's testi-
mony that on January 27 Joyce asked her to have Knei-
fel contact him; and lastly, Joyce's testimony is inherent-
ly implausible because the record reveals it would have
been very easy for either Peregrina and/or Smith to
have contacted Kneifel on January 27 and told him that
Joyce wanted to talk to him, yet it is undisputed that nei-
ther one did. It is for all the foregoing reasons that I
reject Joyce's testimony that prior to deciding to dis-
charge Kneifel on January 27 that he made an effort to
speak with Kneifel in order to get an explanation for
Kneifel's misconduct. Rather, I find that Joyce decided
to discharge Kneifel on January 27 without affording
him an opportunity to explain his version of what had
taken place despite the fact that Joyce regarded Kneifel
as a valued employee.
30 Smith went to Reno on Wednesday, January 28.
40 Smith testified he was referring to Kneifel's tardiness from work
during that week.
566
RIKAL WEST, INC.
(5) Ultimate conclusions regarding Respondent's
defense
Based on my evaluation of Joyce's reasons for dis-
charging Kneifel, as set forth supra, I am of the opinion
that Respondent has failed to establish that Kneifel's tar-
diness or his keeping a company vehicle on January 24
at his apartment without permission, or his mishandling
of the WellService inventory reports while Smith was on
vacation, either singularly or together, during the normal
course of business would have resulted on January 28,
1981, in his being discharged. Rather, a close scrutiny of
the evidence reveals that these were not the real reasons
for Kneifel's discharge. In so concluding I was influ-
enced by these considerations.
In each of the approximately 10 cases where Burlin-
game facility employees were discharged prior to Knei-
fel's discharge, Facility Manager Smith played a signifi-
cant part in the discharge. In each case he either made
the decision to discharge or effectively recommended
that the employee be discharged. In sharp contrast Knei-
fel's discharge came as a surprise to Smith, who was not
even consulted about the matter and only learned about
it after the fact.
Other employees who engaged in similar acts of mis-
conduct as Kneifel were either not disciplined or treated
more leniently than Kneifel. Employees Simko and
Leible were given 10-day suspensions for failing to
return their company vehicle and for reporting to work
the next day 2-1/2 hours late which resulted in the dis-
ruption in Respondent's service to its customers. Em-
ployee Shaun Neal, with a worse tardiness record than
Kneifel, took a company vehicle home twice without
permission, yet received only a written disciplinary
warning for his first vehicle offense and was not disci-
plined, either by a written warning or otherwise, for
either his tardiness or second motor vehicle offense even
though he had been suspended previously because of his
tardiness. Indeed, Smith's conduct in connection with
Neal's second motor vehicle offense vividly demonstrates
the disparate treatment accorded to Kneifel's identical
offense. In Neal's case Smith phoned Neal on Sunday
and had him return the motor vehicle that day without
any discipline. Yet in Kneifel's case Smith said nothing
about the vehicle to Kneifel all weekend and on
Monday, still without speaking to Kneifel, phoned Joyce
and suggested to Joyce that Kneifel's misconduct in
keeping the company vehicle gave Joyce an opportunity
to discharge Kneifel.
Respondent's fabrication of additional acts of miscon-
duct which it attributed to Kneifel strongly suggests that
Kneifel's misconduct would not have resulted in his dis-
charge because Respondent, viewing Kneifel's past
record as an outstanding employee, realized that the mis-
conduct Kneifel actually engaged in was not sufficient to
warrant the drastic penalty of discharge. As I have de-
scribed in detail supra, the basis for the written disciplin-
ary warning issued to Kneifel on January 27 for his tar-
diness was in substantial part false and distorted. Like-
wise, as described in detail supra, the reasons set out in
the January 23 memo to justify disciplining Kneifel for
his misconduct in connection with the weekly inventory
reports were in substantial part false and in other re-
spects involved conduct which, based on what had taken
place in the past, Respondent must have known was not
Kneifel's fault. Lastly, and most significantly, Joyce fal-
sely testified that the event which triggered his decision
to discharge Kneifel was Kneifel's refusal to speak with
Joyce on January 27 and discuss his misconduct. As I
described in detail supra, Kneifel was not guilty of this.
It is for the foregoing reasons that I find that an exam-
ination and an evaluation of the reasons advanced by
Joyce to justify Kneifel's discharge do not warrant a
finding that Kneifel would have been discharged during
the normal course of business even absent his union ac-
tivities, but instead warrant a finding that the reasons ad-
vanced by Joyce were not the real reasons for the dis-
charge.
c. Ultimate conclusions
As I have found supra, the General Counsel has estab-
lished a prima facie case that Kneifel's discharge was mo-
tivated on account of his union activities. I am of the
view, for the reasons set forth supra, that Respondent has
not met its burden of going forward with sufficient evi-
dence to rebut the General Counsel's prima facie case.
But, assuming that the fact that Kneifel did in fact
engage in certain conduct which on its face constitutes
legitimate grounds for discharge is sufficient to meet Re-
spondent's burden of going forward with sufficient evi-
dence to rebut the General Counsel's prima facie case, I
further find that the General Counsel has established that
Respondent's reasons were not its true reasons for dis-
charging Kneifel and that this plus, the evidence which
constitutes the General Counsel's prima facie case supra,
establishes that the General Counsel has proven by a pre-
ponderance of the evidence that Kneifel's discharge was
motivated by his union activities. I therefore find that by
discharging Kneifel on January 28, 1981, Respondent
violated Section 8(a)(1) and (3) of the Act.
d. Respondent's 10(b) defense
Respondent argues that all the evidence of events
which took place prior to January 7, 1981, may not be
considered in order to determine whether Kneifel's dis-
charge on January 28, 1981, was illegally motivated be-
cause the events which predated January 7, 1981, oc-
curred outside the 10(b) limitation period. I reject this
contention. The challenged evidence is relevant and pro-
bative to shed light on the nature of Respondent's moti-
vation "as it existed at the time of [Kneifel's discharge]
even though it may not be used to establish the events
constituting the alleged unfair labor practices." Pulitzer
Publishing Co. v. N.LR.B., 618 F.2d 1275 (8th Cir.
1980). Here, the events constituting the alleged unfair
labor practice charge, the discharge of Kneifel on Janu-
ary 28, 1981, post-dated the 10(b) limitation period. This
case is virtually identical to Stafford Trucking, Inc., 154
NLRB 1309, 1310 (1965), enfd. on this point 371 F.2d
244, 246-247 (7th Cir. 1967), in that as in Stafford Truck-
ing virtually all of the evidence revealing Respondent's
motive in discharging Knei;el, other than the reasons for
the discharge, occurred outside the 10(b) period preced-
ing the charge. Yet, in Stafford Trucking the Board and
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the court of appeals, relying on the Supreme Court's de-
cision in Local Lodge No. 1424, IAM [Bryan IMfg. Co.] v.
N.L.R.B., 362 U.S. 411 (1960), rejected the contention
that it was impermissible for the Board to consider the
evidence which predated the limitations period for the
purpose of shedding light on the motivation behind the
discharge which occurred within the 10(b) period, even
though the actual discharge was the only act which took
place within the 10(b) period. In the instant case Knei-
fel's discharge took place within the 10(b) period and, as
I have found supra, Respondent's ostensible reasons for
discharging him are not the real reason, thus leaving the
real reason for Kneifel's discharge unexplained by events
occurring within the 6-month period. Accordingly, I find
that consideration of background evidence for the pur-
pose of seeking an explanation of Respondent's true mo-
tivation is warranted here. 4 x
2. Smith interrogates employee Peregrina about her
union activities and the union activities of other
employees
As described in detail supra, sometime between the
middle of January 1981 and the date of Kneifel's dis-
charge, January 28, Scott Smith, the manager of the Bur-
lingame facility, on several different occasions asked
Kerry Peregrina, the office clerical employed at the fa-
cility, whether Kneifel had been in contact with the
Union or whether union representative Roberts had
called and talked with Kneifel. Also during the middle of
January 1981 Smith, as I have described in detail supra,
asked Peregrina whether the employees intended to hold
a union meeting at Peregrina's home and instructed Pere-
grina not to attend such a meeting. 4 2
Smith, the highest ranking representative of manage-
ment at the Burlingame facility, had no justification for
engaging in the above-described interrogation and, at the
time of the interrogation, offered no justification to Pere-
grina for his conduct. Quite the contrary, with respect to
his interrogation about the union meeting at Peregrina's
house, Smith instructed her not to attend such a meeting.
The record also reveals that Smith was openly hostile to
union representation and that his interrogation of Pere-
grina took place shortly before Kneifel was discharged
because of his union activities. Under these circum-
stances I find that Respondent violated Section 8(a)(l) of
the Act, as alleged in the complaint, when Smith, in the
middle of January 1981, interrogated employee Peregrina
41 News Printing Co. Inc. 116 Nl RB 210 (1956). relied on by Re-
spondent., is therefore significantly distinguishable from the instant case
because in that case there is no similar evidence of equivocation requiring
an explanation with respect to that respotldclt's conduct within the statu-
tory 6-month period See Paramount Cup lManuactluring C. I 119 NL.RB
785, 787 (1957).
42 Smith did not expressly use thie word "union" in this consersation.
hut asked whether the employees ,cre mneeting at Peregrina's home
Nevertheless, I am persuaded, whalen 'ieed in the context in which it
occurred, that Smith's reference Io a; meeting of employees referred to a
union meeting and that Smith must have knlowan that Peregrina would
have realized this was what he was talking about. Thus, early in Decem-
ber 1980, as described in detail supru, Smith. in the context of questionilig
Peregrina about Klneifel's union activities, asked ahy Peregrina aas sisit-
ing with Kneifel so frequently,. Ahether they were discussing the Unliotn
and whether I'eregrila's husband, whao was a nmember of the Teamsters
Union, was discussing the Union with Respondent's emnployees.
about her own union activities and the union activities of
other employees.
3. Smith interrogates employee Peregrina about her
communications with the Board
As described in detail supra, during the week of Janu-
ary 12, 1981, employees Peregrina and Kneifel visited
the Regional Office of the National Labor Relations
Board. Thereafter, on or about January 19, 1981, Smith
asked Peregrina whether Peregrina and Kneifel had been
to the "Labor Board" and when Peregrina answered in
the affirmative asked why they visited the "Labor
Board" and what they were planning on doing. Pere-
grina indicated she had no immediate plans but asked
Smith what she should do if someone asked her to go to
the Board. Smith initially replied that he did not know
what she should do, but shortly thereafter informed her
she should ask Regional Manager Joyce for his advice
about the matter, whereupon Peregrina phoned Joyce
and was told by him that whether she went to the Board
was totally her decision and that he could not give her
any advice about the matter.
I am of the opinion that, as alleged in the complaint,
when Smith interrogated Peregrina about whether or not
she and Kneifel had visited the Board and questioned her
about the reason he visited the Board, Respondent vio-
lated Section 8(a)(1) of the Act because the interroga-
tion, which was undertaken by the highest ranking man-
agement official at the Burlingame facility, was without
justification or assurances against reprisals and took place
in the context of Kneifel's illegal discharge. 43
CONCILUSIONS O1 LAW
1. Rikal West, Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, International Brotherhood of Electrical
Workers, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Robert Kneifel on January 28, 1981,
Respondent violated Section 8(a)(l) and (3) of the Act.
4. By interrogating Kerry Peregrina in the middle of
January 1981 about her union activities and the union ac-
tivities of other employees, Respondent violated Section
8(a)(1) of the Act.
5. By interrogating Kerry Peregrina on January 19,
1981, about whether she and another employee visited
the National Labor Relations Board and about the pur-
pose of the visit, Respondent violated Section 8(a)(l) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
4 I shall rectommenld that the portion of the complaint which alleges
that Smith told Peregrina not to communicate with the Board be dis-
missed because. as I have found supra. there is insufficient evidence to
support that allegation
568
RIKAL WEST, INC
THE REMED)Y
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that Respondent cease and
desist from engaging in the unfair labor practices found
herein and to reinstate Robert Kneifel to his former job
or, if such job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and I shall rec-
ommend that Respondent make Kneifel whole for any
loss of earnings he may have suffered because of the dis-
crimination practiced against him by payment to him of
a sum equal to what he normally would have earned
frotp the date of his discharge on January 28, 1981, to
the date Respondent offers him reinstatement, less his net
earnings during that period. Backpay shall be computed
in the manner set forth in F W. Woolworth Company, 90
NLRB 289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4 4
The Respondent, Rikal West, Inc., Burlingame, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for the purpose of discouraging employees
from engaging in union activity.
(b) Interrogating employees about their union activities
and the union activities of other employees.
(c) Interrogating employees about whether they have
visited and the purpose of their visit to the National
Labor Relations Board.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Robert Kneifel immediate and full reinstate-
ment 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 previously en-
joyed, and make him whole for any loss of pay which he
may have incurred by reason of Respondent's discrimina-
tion against him in the manner described in the section of
this Decision entitled "The Remedy."
(b) Expunge from its files any references to the dis-
charge of Robert Kneifel on January 28, 1981, and notify
him in writing that this has been done and that evidence
of this unlawful discharge will not be used as a basis for
future personnel actions against him.
,s In the ecenut no exceptions are filed as provided hb Sec. 102 46 of
the Rules anid Regulations of the National L.abor Relations Board, the
findings, conclusions. and recolmImended Order herein shall, as provided
in Sec. 10(2 41 of the Ruler and Rcgulalllons, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed wai ed for all purposes
(c) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Burlingame, California, facility copies of
the attached notice marked "Appendix." 45 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FUR'HER ORDI)RII) that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act other than found herein.
4. In the esent that 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 National Labhor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States C ourt of Appeals Enforcing an
Order of the National l abor Relations Boalrd
APPENDIX
NOTICI To EmPI OYEE S
POST -D Bt ORDI R OF THE
NAIIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees for the purpose of discour-
aging them from engaging in union activity.
WE wIlll NOT interrogate employees concerning
their union activities or the union activities of other
employees.
WE- Wit . NOT interrogate employees about
whether they have visited or their reason for visit-
ing the National Labor Relations Board.
WE WIt I NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act, as amended.
W. wllt. offer to Robert Kneifel immediate and
full reinstatement to his former job or, if his former
job no longer exists, to a substantially equivalent
position of employment, without prejudice to his se-
niority or other rights, and WE WILt make him
whole for any loss of pay he may have suffered by
reason of our discrimination against him, with inter-
est.
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL expunge from our files any reference to
the disciplinary discharge of Robert Kneifel on Jan-
uary 28, 1981, WE WILL notify him that this has
been done and that evidence of this unlawful dis-
charge will not be used as a basis for future person-
nel actions against him.
RIKAL WEST, INC.
570