Simas Bros.

National Labor Relations Board - Board Decisions

Feb 8, 1971

188 N.L.R.B. 441 (N.L.R.B. 1971)

SIMAS BROS. 441
Simas Bros . and Ross M. Willis . Case 20-CA-5937
February 8, 1971
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND KENNEDY
ing the unfair labor practices . Pursuant to notice , a hearing
was conducted in San Francisco , California, between April
13 and April 17, 1970.
From my observation of the witnesses , which , in this case,
was a material factor in resolving credibility differences,
and upon the testimony of the witnesses , the exhibits, and
upon the entire record in the case , I make the following:
FINDINGS OF FACT
On August 21, 1970, Trial Examiner James R.
Hemingway issued his decision in this proceeding,
finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision with a supporting brief and an
answering brief to the General Counsel's cross-ex-
ceptions. The General Counsel filed cross-excep-
tions with a brief in support and an answering brief
to Respondent's exceptions.
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
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this proceeding, and
hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Simas Bros., Oakland, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY , Trial Examiner: Upon a charge
filed by Ross M. Willis, an individual , on February 6, 19T0,
a complaint issued on March 2, 1970, alleging a violation by
Respondent of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended , 29 U.S.C. Sec. 151, et seq.,
herein called the Act, by the discharge of its employee Ross
M. Willis because of his activities on behalf ofthe Union.
On March 12 , 1970, the Respondent filed an answer deny-
I THE FACTS OF COMMERCE
The complaint alleges and the answer admits that Re-
s ondent, a California corporation with its principal place
of business in Oakland , California , has at allptimes material
to the issues herein , been engaged in the retail sale of petro-
leum products. During the past year, Respondent, in the
course and conduct of its business operations, had total
sales in excess of $500,000. During the past year, Respon-
dent, in the course and conduct of its business operations,
purchased and received goods valued in excess of $5,000
directly from suppliers located outside the State of Califor-
nia. Upon these facts, I find that the Board's jurisdictional
standards with respect to retail operations as well as the
legal jurisdictional requirements of the Act under Section
2(6) and (7) have been met, that the Board has jurisdiction,
and that it will effectuate the purposes of the Act to assert
jurisdiction.
II THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Employees Union, Local No. 78,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organization
admitting to membership certain employees of the Respon-
dent. The unit represented includes all station attendants,
including station managers.
III THE UNFAIR LABOR PRACTICES I
A. Discharge for Union Activity
1. Background
Respondent has its principal offices in its own building in
Oakland , California, which houses not only the executive,
administrative , and general offices of the Respondent but
also other businesses related through ownership , including
Ashland Oil Company . Respondent operates 21 so-called
self-service automobile service stations , most of which are
in the Oakland metropolitan area. The stations are operated
24 hours a day on three shifts, 6 a.m. to 2 p .m., 2 p.m. to
10 p in,, and 10 p .m. to 6 a.m.
Next under Walter Simas , the president of Respondent,
is General Manager Norman Herrold , who in turn has un-
der him field representatives , of whom only Richard Nelson
is here involved . Nelson has supervision of 7 to 10 stations.
The station attendants are classified as manager, assistant
manager, relief shift manager , and attendants.
2. Station managers as supervisors
within the meaning of the Act
Station managers are customarily present during most of
the first shift of the day, but they are responsible for the
operations of the station on all shifts . The station managers
1 Briefs were received from both parties and they have been considered.
188 NLRB No. 70
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take inventory of the gasoline, oil, and other supplies and
cash at the beginning and end of their shifts . They have keys
to the cashbox and to the two floor safes . One is the
overnight safe, where a supply of operating cash is kept, and
the other is for cash receipts . It requires two keys to open
it. The latter one is called the "drop ' safe , into which must
be dropped the cash receipts in excess of a certain amount
of cash which is permitted to be kept on hand . The invento-
ry, which is made up at the beginning and end of each shift,
is taken in conjunction with the man in charge of the shift
before or after the manager 's shift, and a record , called the
check-out-and-in sheet, is based on the inventory which the
manager and the man preceding and following him take. On
another sheet , which is called the shift sheet , the man in
charge of the particular shift keeps a record of receipts and
expenditures , as well as of the time and amount of money
dropped . From the shift sheets , the manager makes up a
consolidated master sheet , sometimes called the day sheet,
which is a complete record of the activities of the station for
each 24-hour period . The master sheet is picked up periodi-
cally by the man who picks up the money from the safe, and
it eventually reaches the main office , where the bookkeep-
ing department goes over the figures on the day sheets,
makes corrections , and refers the results to the general man-
ager . The delay between picking up of the sheets and the
delivery of them to the general manager could run 3 or more
days.
In addition to such bookkeeping duties , the managers
make up the work schedules for attendants , direct their
work , keep their time, order supplies , go to the bank when
necessary for small change , male a survey of the prices of
gasoline at competing stations , report to the main office any
special problems , and maintain good customer relations.
They are charged with the responsibility of holding down
shortages . Although there is a conflict in the evidence as to
whether or not managers can hire or fire , the weight of the
evidence establishes , I find, that managers do not hire-
they refer applicants to the main office-but they do fire or
recommend for discharge . Managers are supplied with
forms for terminating employees and, in cases where no
difference of opinion would be likely to arise over a dis-
charge , the manager's act of discharging would go through
the main office for processing practically pro forma. Per-
haps the final act in the routine of discharging an employee
is not performed until the discharged employee's final pay-
check is made out at the main office , but the decision to
terminate in such a case is the manager 's. Except in flagrant
cases , such as those where an attendant is discharged for
dishonesty or coming on the job drunk, however , a manager
is usually expected to communicate to his field representa-
tive his desire to terminate an employee and to state his
reason . Even in such cases , however , the manager's rec-
ommendation carries weight . The manager is also authoriz-
ed to suspend an employee for up to 3 days and might do
so in a case where delay in processing a discharge might be
encountered. On all the evidence , I find that station manag-
ers are supervisors within the meaning of Section 2(11) of
the Act.
3. History of Willis' employment 2
Ross Willis was hired by Respondent on September 16,
1969, as a trainee attendant at the 33rd Street station at a
2 In an effort to show that Willis' discharge was part of a pattern, the
General Counsel adduced evidence tending to prove that Station Managers
pay rate of $ 1.665 an hour. After a week 's training period,
his pay was raised to the attendant 's rate of $ 1.875, in ac-
cordance with an agreement between the Respondent and
the Union . On about October 1 , 1969 , the Respondent was
in the process of effecting a change in management at this
station , and Grady Miller (who had been assistant manager
at the Castro Valley station) was made manager . Nelson
told Miller at that time that the man best qualified to handle
the second shift was Willis . Willis did not like the hours of
the second shift , but Nelson agreed to raise Willis ' classifi-
cation to relief shift and sheet man (as the classification is
given in the Union 's agreement with the Respondent, but
called relief shift manager by some of the witnesses ) at a rate
of $1.975 if Willis would take over that shift. Willis did so
for a time, presumably until an assistant manager was hired
to take over that shift . Thereafter , Willis returned to the first
shift and remained on that shift until the day of his dis-
charge . Meanwhile his classification and pay remained the
same.
When Miller became manager , he had an understanding
with Nelson that, after Miller had done the paper work in
the morning , he was free to come and go as he pleased, so
long as the station was properly run. When Miller would
leave the station , he would turn over to Willis the key to the
cashbox with instructions to check out if Miller did not
return, and Willis would make the money drops and check
out the shift . From Miller's testimony and other evidence,
I find that Willis was a very good attendant-prompt, re-
sponsible, and agreeable to customers and other employees.
During December of 1969, conversations among attend-
ants at the 33rd Street station frequently centered on work-
ing conditions and the union contract . Although all
attendants , as well as station managers, were required, un-
der the Union 's contract , to be or become members of the
Union and to have their dues deducted from their pay, they
had never seen a union representative at the station nor had
they been notified of any meeting of members.
On a day in mid-December , after the end of the first shift,
Willis and Station Manager Miller went to the Union's
office and conversed with Walter Bovie, the Union's bus-
iness representative . They asked Bovie for a copy of the
current contract between the Union and the Respondent,
but Bovie told them that he could not show it to them
because it was at the printers 4 and that he did not wish to
have additional copies printed so near the expiration date
of the contract. This agreement had been executed on April
1, 1969, and was for a 1-year term, ending March 31, 1970,
but was renewable for another year unless notice was given
by either party by registered mail 60 days prior to the expi-
ration date. This meant that such notice would be due to be
Grady Miller and Keith Lawhorn were treated discriminatorily. Because
Miller was the manager at Willis' station and because his activities were
closely related to those of Willis, I have detailed the circumstances of Miller's
discharge I find it unnecessary to detail the facts concerning Lawhorn.
3 Nelson testified that, before the change, the then manager, named as
Harvey Wright by Willis and as Lewis McAfee by Nelson on one occasion
but as Harvey Wright on another, was having serious shortages so he, him-
self, took over the first shift and put the manager on the second shift . Appar-
ently, by October 1, 1969, that manager had been replaced by Miller.
° Miller and Willis had heard that the inability to supply a copy of the
agreement because it was at the punter's was the same answer that Bovie had
given to Station Manager William Fields a year or two earlier when he sought
to obtain a copy
SIMAS BROS.
given by January 31, 1970 . After further conversation, Bovie
produced a copy of a contract preceding the current one for
them to examine , and he promised to get them a copy of the
current contract . Bovie told them that he was not happy
with the contract in its present form but that he had had
difficulty in organizing Respondent 's employees , that there
was a high turnover , that it was hard to get employees to
attend meetings , and that he would appreciate any help he
could get from the employees that would enable him to get
a better contract.
About a week or two later , Willis telephoned Bovie and
asked if he had a copy of the contract yet. Bovie told him
he had it waiting for them . Miller picked up the copy of the
current agreement and returned to the station with it, where
it was passed around among the employees. There were
provisions in it concerning overtime pay, minimum pay for
4 hours or more, and other provisions that none of the
attendants was familiar with . Miller and Willis proposed to
work up a new proposed contract. Miller told Station Man-
ager William Fields of what he and Willis proposed to do
and asked if he was interested in helping . Fields told Miller
that he would like to see the agreement and that he had a
suggestion to make . When Fields saw the agreement, he
made notations on it concerning health and dental insu-
rance.
Miller and Willis were under the impression that the 60-
day notice provision required the submission of a new
agreement by the end of January , so they decided to act fast
in working up the changes they felt were desired and to
circulate the proposed agreement among employees at other
stations , as well as at their own , for approval , changes, or
additions by the other employees . At the outset , they intend-
ed to send copies of the final proposed agreement to both
the Respondent and to the Union , but this plan was aban-
doned later . Following discussions of changes that employ-
ees had expressed a desire for, Miller prepared the new
proposed agreement, and Willis had a number of copies
thereof made . On January 24, Miller , with assistance from
Fields and Willis , left copies of this proposed agreement at
a number of Respondent s stations , with the suggestion that
employees at each station sign on the back thereof if they
ap roved, or make notes of any changes they saw fit.
One manager , Tom Button , telephoned Miller on January
26 and told him that he was disturbed by the plan to send
a copy of the agreement to the Respondent because Fields
had told him that on an earlier occasion a group of attend-
ants had written down some demands and presented them
to the Respondent and that they had been discharged. Upon
hearing this , Miller telephoned Fields , who confirmed the
account given by Button .5 Miller and Fields , on the same
day, called on Bovie , who told them that the Union had
already served the 60-day notice on the Respondent and
that that was all that was needed at that time . Miller and
Fields then decided to let the Union handle matters there-
after, and Miller turned over to Bovie the copy of the agree-
ment which had been signed by the employees at his station.
Miller and Fields asked that the Union call a meeting so the
employees could make their views known . Bovie said that
he was attempting to fix a date.
When Miller left the Union's office, he went to the van-
ous stations to pick up the copies of the proposed agree-
ments which had been left there, and he suggested to Willis
that he pick up one that Willis had left at another station.
Willis did so.
5 I make no finding that Respondent actually discharged those employees
because they had presented demands, but I credit Miller's testimony of his
conversations with Button and Fields.
443
On the evening of January 26, General Manager Herrold
told Richard Nelson, the field representative and Miller's
immediate supervisor, to check Miller out and demote him
to assistant manager at another station. Herrold testified
that on the evening of January 26 he also decided to dis-
charge Miller, but he did not testify that he revealed this
intent to Nelson.
On January 27, Nelson arranged to meet Miller at the
33rd Street station at 2 p.m. Miller left the station at about
I I a.m. with word that he would return at 2 o'clock. Nelson
arrived there before Miller returned and first spoke with
John Ward, the assistant station manager , who was there to
take over the second shift. Nelson asked Ward if he wanted
the manager's)ob. Nelson testified that it was not his inten-
tion then to discharge Miller-that he was merely ON to
demote him because of excessive shortages and place him
elsewhere as an assistant manager. When Miller returned,
Nelson proceeded to check Miller out 6 Miller asked why he
was being relieved of the managership. Nelson replied that
he would let Miller know when the checkout was finished.
Willis observed, as he entered the station office, that Nelson
had in his hand a form headed "Change of Management,"
and he asked Nelson if he was discharging "our manager."
Nelson told Willis that he would know before he (Willis)
went home. In the checkout process, Nelson found a num-
ber of IOUs in the overnight safe, indicating small loans
made to station attendants from the operating funds. Miller
testified that when he had first assumed the managership
Nelson told him that it was better to lend the attendants
small amounts of money when they needed it rather than
take the risk of having attendants steal money. He also
testified that he had seen IOUs at other stations . Nelson
confirmed this although he testified that he had not seen
IOUs in such large amounts.' Respondent' s witnesses testi-
fied that it was against the rules of the Respondent to lend
money out of its funds and that Miller should , if he was
going to lend money, have done so from his personal funds.
filler's checkout form, made out by Nelson, which was
introduced in evidence , has on it a printed question: "Are
there any IOU's?" This was followed-y: "If yes, list amount
and names." This latter part was not filled in by Nelson. The
Respondent did not, by any written evidence of such a rule,
confirm the testimony that taking IOUs for small loans was
against the Respondent's rules . If the Respondent did not
approve the practice of making such loans on IOUs, I can
see no reason for inclusion of the questions about them in
the checkout forms. Miller asked Nelson, after the checkout
was complete, the reasons for his removal. Nelson told him
(1) that Miller was not at the station enough of the time and
Nelson was unable to reach him by telephone when he
wanted him and (2) the shortages at the station were exces-
sive in the prior months.8 He did not say anything about the
IOUs except to say that Miller was responsible for them.
Yet Herrold, who had apparently decided earlier to dis-
6 Miller testified that, when he returned a few minutes after 2 p in., Nelson
was already checking him out . Nelson testified that he did not start checking
Miller out until after Miller's return I find the difference to be one of
semantics and that Nelson had already begun to check on some things.
7 One , a loan to Miller's assistant manager , who later transferred to an-
other station , was larger than normal The rest were small loans.
8 After shortages had dropped for the first 2 months that Miller had been
in charge , they rose to about $863 in December and appeared to be running
rather high in January after a low first week, although it is not likely that the
results of Miller's final week would have been known to the Respondent by
January 27 The sheets are first checked and corrected by clericals and then
Nelson would see them about 3 days or so later There are a number of
possible contributing reasons for shortages other than dishonesty of attend-
ants, although, when losses reach the figure reached in December , dishonesty
looms as a contributing factor
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge Miller, testified that he decided to cause Miller's
discharge when he learned of the IOUs. Nelson told Miller
that he was not being discharged at that time. Miller asked
if there was a possibility of his keeping a job with the Res-
pondent. Nelson told him that he would have to speak with
General Manager Herrold about that 9
That evening Miller telephoned Fields. Fields' wife told
Miller that Fields was at Nelson' s apartment . Fields later
returned the call and, according to Miiller,10 told Miller that
Nelson had been "chewing" him out and warning him
against any further union activity." Miller told Fields of his
removal as manager . The next day, Miller went to the Un-
ion to file a grievance about his being relieved of his manag-
ership. Then he went to the Respondent' s offices and met
Nelson. Nelson had Miller's discharge slip already prepar-
ed. Nelson gave it to Miller.12 The reason stated for his
discharge was "improper management." Miller asked to
speak with Herrold but was told that Herrold was too busy
to see him.
On Friday morning, January 30, Willis was alone at the
33rd Street Station . Miller, although no longer employed,
dropped in and helped Willis (who was alone) for a time;
then he telephoned the Respondent's office and reported to
Herrold that Willis was alone at the station. The hours of
6 to 8 a .m. are the busiest hours of the first shift.
That afternoon Nelson went to the 33rd Street station and
spoke with Willis. Willis complained of the lack of help and
the difficulty of pumping gasoline alone , especially between
6 and 8 a.m., and he told Nelson that he thought the Re-
spondent was either trying to work him so hard that he would
quit or was trying to invite customer complaints so that the
Respondent could fire him.13 Nelson told Willis that he was
not trying to give him a hard time and that he had had no
complaints about Willis. Nelson said that he would have
Ward help Willis pumpp ggas during the busiest hours, that it
was not necessary for Willis to do it alone. Willis said that
Ward usually was working on the day sheet and did not
seem to be able to get out to help pump gas. Willis asked
if it was his responsibility also to check in the shift and make
money lots, as well, I infer , as pump gasoline and handle
custom y himself. Nelson told him that Ward was to
check in the shift and make the drops, as well as help Willis
pump gasoline during the busiest time, and that Ward could
work on the day sheet as time permitted. Nelson testified
that he had repl d to Willis' question by answering that, if
Willis was left in charge-if he ran a shift-naturally he
would be responsible for making money drops. Nelson testi-
fied that he was referring to the fact that if, on the 6 a.m.
to 2 p.m. shift, the manager was gone (i.e. left the station in
the middle of a shift), Willis "would naturally drop the
money." I find that no such meaning was conveyed to Willis
and that the conversation resolved about Willis problem of
what to do when Ward did not show up at the start of a shift
9 Nelson had , on other occasions , demoted station managers and located
them as assistant managers at other stations . This was done in the case of
Miller's predecessor at the 33rd Street station-Harvey Wright.
10 Fields was not called as a witness to corroborate this.
11 Nelson testified that he had spoken to Fields at his home about reassign-
ment but denied any mention of the Union . I do not rely on what Fields
purportedly told Miller in this connection about what Nelson had said to him
in his apartment in making my findings regarding Willis' discharge . I do not,
however, exclude the evidence that tends to show that Fields was at Nelson's
apartment that night.
12 In the space for the name of the discharged employee 's immediate
supervisor was the name Norman Herrold Nelson , Miller's immediate super-
visor, signed as a witness.
13 Willis' suspicions could have been correct, but it is also possible that the
Respondent was experiencing difficulty in finding satisfactory attendants
or when Willis was required to pump all the gasoline while
Ward was doing his bookkeeping. Willis commented that,
since Miller had been discharged, he had frequently had to
pump gasoline by himself. According to Willis' testimony,
he and Nelson talked of Miller's discharge, and he testified
that, in this part of the conversation, Nelson said that, when
(President) Simas had seen a copy of the proposed contract,
he had become furious and said that nobody was going to
tell him how to run his business; that Simas had planned a
meeting which was to have taken place about an hour or so
after the time he received the copy of the contract and that
he was so angry that he called off the meeting which, if it
had been held, was designed to give the employees a raise;
that, if it had not been for that contract, the employees
would have their raise already; and that Willis had asked
how much the raise was going to be, whether it was going
to be a quarter (of a dollar) an hour, and that Nelson had
looked surprised and said, "Yes." Willis further testified
that, after reassuring him that Ward would do the sheets as
he had the chance, would drop the money, and would help
Willis pump gas, Nelson departed saying, "Don't worry,
things are going to get better and we will get things worked
out. Nelson denied that he had told Willis that Simas was
furious about the proposed union contract or that he had
had any conversation to which the subject was the Union.
Nelson did not appear to me to be the I=d of person who
would reveal, in gossip, confidential information to one
whom he knew no better than he knew Willis. Simas testi-
fied that he was not aware of the circulation of a new
contract. In reaching a decision not to rely on the portion
of Willis' testimony that dealt with Simas' purported re-
action, I take into account the fact that another witness,
Keith Lawhorn, a former station manager, testified that his
brother-in-law, Tommy LaCase, another station manager,
had related to him that Nelson had told LaCase in late
January that Simas had said that nobody was going to tell
him how to run his business, that he would fire anyone who
had anything to do with the contract, that he was going to
put the station managers on salary so they would work if
there was a strike, that he (Simas) was in the process of
offering a quarter raise at the time; and that this contract
(the proposed one) would set him back 2 or 3 months.
Nelson was closer to LaCase and Lawhorn than he was to
Willis and, if Nelson made any such purported statements,
I believe he would have made them to LaCase or Lawhom
rather than he would have to Willis. 14 Because this portion
of Lawhom's testimony was second-hand hearsay, even if
LaCase had had such a conversation with Lawhorn, I give
that testimony no weight as proving any statements by Si-
mas. I am inclined to infer, however, that Willis had heard
via the grapevine the story related by Lawhorn and that
Willis erroneously attributed it to Nelson in his own conver-
sation with him.
Two days later, Sunday, February 2, 1970, about 7:30
a.m., Willis telephoned Nelson and told him that he was
again alone pupping gas. Nelson asked where Manager
Ward was, and Willis replied that, according to the sched-
ule, it was Ward's day off. Nelson said that he had talked
with Ward the that before and that Ward had said he would
be there and that perhaps John Patella was scheduled to
come at 8 a.m. Willis said that, according to the schedule
posted, no one was due to come in until 2 p m. Nelson told
Willis to look at a schedule under the day sheet on the desk.
Willis did so and found a schedule there that showed that
Patella was due to arrive at 8 a.m. Apparently, however,
Patella had previously spoken to Ward and Nelson about
14 Nelson did not specifically deny having made such statements to La-
Case
SIMAS BROS.
inability to be there on Sunday. Ward showed up, himself,
close to 8 a.m.
At some time after January 26, the date not being re-
vealed with certainty, Willis distributed to employees at
Respondent's stations a printed notice which, among other
things, stated that they should have a new union contract
by April 1, 1970, and asked the emplo +ees, "Will you have
anything to say about that contract? There followed an
exhortation: "If you want anything more than what Simas
Bros . wants to give you, call Mr. Walter Bovie.... Let him
know you are aware a new contract comes due April 1, 1970.
Ask for a called union meeting about the new contract.
Don't allow them to negotiate for you." This notice was
introduced in evidence by the Respondent in an effort to
prove that Willis was trying to bypass the Union."
At 6 a.m. on February 4, William Fields, the manager of
the Castro Valley station, appeared at the 33rd Street station
and told Willis that he was there to show Ward how to make
out the sheets and manage the station. Willis quoted Fields
as telling him that he had had trouble over the union con-
tract; that Simas (meaning, I infer, the Company) had called
him into the office and threatened to fire him; and that he
had talked to Nelson and Herrold at the office for some
hours,16 during which time he had told them that his com-
plaint was not with the Respondent but was with the Union,
which had made it necessary for the employees to engage
in this type of activity. As a result of this talk, Fields told
Willis, according to the latter's testimony, that he had been
permitted to keep his job but that from then on he had to
put on his overalls and pump gasoline and to service auto-
mobiles, as well as attend to his managerial duties. Since this
testimony was hearsay and was not a statement made by
Fields in his supervisory capacity, and since Fields was
available to testify but was not called, I do not rely on this
testimony of Fields' statement as proving anything told to
Fields by Herrold or Nelson, but I find that what Fields told
Willis on this and on other occasions had some bearing on
what Willis believed and on how he acted.
When Ward arrived an hour late, he and Fields got into
a noisy argument in which Fields told Ward that he had the
power to discharge him. The argument continued without
interruption until-Fields made a telephone call at the public
telephone booth, since the telephone in the station office
was out of order. The telephone call they made apparently
was to Nelson at. about 8:30 or 9 a.m. Up to that time, Willis
alone was pumpng gasoline. About that time, Willis turned
over to Fields and Ward the money he had collected over
and above what he was supposed to keep for change. Either
Ward or Fields should have dropped that money in the safe
and noted the drop on the sheet with the initials of the one
making the drop, but apparently neither did make the drop,
because no notation appeared on the sheet that morning.
About the time when Willis gave them the money, Fields
and Ward started working on the day sheet, but they contin-
ued to converse in heated tones. They attempted at times to
involve Willis in the argument by asking him to confirm a
statement. Willis managed to avoid participation while he
was busy on the pumps, but Ward once asked Willis why
Willis had called- pWard in late on Sunday (February 2).
Willis replied that he did not do so, that he had dust called
15 At one point in the record it was implied that this was distributed after
Willis was discharged . If it had been , it certainly had nothing to do with
Willis' discharge . If it was distributed by Willis before his discharge, and if
the Respondent came into possession of it then, it might have had considera-
ble to do with Willis' discharge.
16 Herrold testified that he had had talks with Fields on what I fix as
February 3, when he had transferred Fields to the 33rd Street station on a
temporary basis, presumably to start on February 4.
445
Nelson and told him there was no one there between 6 and
8 a.m. He told Ward that he had told Nelson that he under-
stood Sunday was Ward 's day off . Ward apologized to Wil-
lis, saying that Fields had him so upset that he did not know
what he was doing.
About 9 : 30 a.m . that morning , Fields left , saying that he
was taking his daughter to the hospital . Fields had previous-
ly reached such an arrangement with Nelson . At 1 a.m. an
attendant named Gates arrived to start an 8-hour shift, and
at 10:30 a .m. Ward gave Gates the key , saying that he was
going to the hospital and would be back , but he did not say
when . About II o 'clock Willis checked the cash he was
carrying and decided that it should be dropped in the safe.
He looked at the day sheet and observed that no drops had
been recorded there , so he decided not to make one himself
lest he might be considered as having assumed responsibili-
ty for all the money that should have been dropped . Wheth-
er or not he actually would have made himself responsible
was disputed by the Respondent at the hearing , but I find
that Willis had cause to be apprehensive because that morn-
ing 17 Miller and Willis both testified that Miller had come
to the station that day and told Willis that he had been told
by Fields the night before that Fields was being transferred
to the 33rd Street station and that one of the things he was
supposed to do was to fire Willis . I have doubts concerning
this testimony because I noted that , when Willis was sum-
marizing the events of the day on cross-examination, he
failed to include this supposed incident which , if it had
occurred , would be expected to have been a major factor in
explaining Willis ' attitude , which he was attempting, by the
summary , to explain . I do not find that Fields made such
a statement.
By 1:45 p .m., shortly before the change of shifts, Ward
had not yet returned and two men for the 2 to 6 p.m. shift
had already arrived . Willis explained the difficulty with the
drops and, between the four of them , they decided to run
the two shifts together without checking out and in. About
that time a fire extinguisher sales and service man, who had
been attempting to repair the fire extinguisher at the station,
telephoned General Manager Herrold from the public
phone booth to ask permission to install a new one. After
giving permission , I{errold asked the fire extinguisher man
to the man in charge of the station to the telephone. It
was then about 1:50 p.m . The fire extinguisher man presum-
ably asked which one of the four men was the one in charge,
because Herrold had the man give a description of the men
there . Herrold apparently recognized the description of Wil-
lis, but whether or not he ppeecifically called for him is not
apparent. In any event , Willis did go to the telephone. Her-
rold had had a telephone call that morning from a man at
Ashland Oil Company regarding the question of need for
delivery of gasoline at the 33rd Street station , but he told
Herrold that he had called the station and could not get
through because he always got the busy signal. Herrold had
told the Ashland man that he would send someone over to
the station to see that the call to Ashland would be made
from there . I infer that Herrold had heard nothing from the
man he sent , if he sent anyone, because he immediately
asked Willis if he would "stick" the tanks and notify the
Ashland Oil Company of the amount of gasoline in them.
Willis said that he would.
Herrold testified that, after he had told Willis to notify the
Ashland Oil terminal , he had asked him where the manager
was, that Willis had replied that the manager had stepped
out for a few minutes , and that he (Herrold) had then told
Willis to check out . Willis denied that Herrold had asked
him to check out. He testified that, after Herrold had been
17 Miller testified it was morning Willis fixed the time as about noon
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told that the manager was not there, Herrold had asked for
the assistant manager and that he had told Herrold that they
did not have an assistant manager, that Herrold then asked
who was dropping the money, that Willis had replied that
no one was at that time, and that Herrold had then asked
him to take the stick readings. When a shift is checked out,
the job of taking inventory usually starts well before the
change of shift and the last step in checking out is to stick
the tanks. If Willis took the stick readings at the time re-
quested, it would have been past check out time before he
could finish, and the new shift would already have started.
From the conversation related by Herrold, he was given no
reason from Willis' purported reply to believe that Ward
would not return in time to check out the shift. Therefore,
there was no reason why Herrold should have asked Willis
to do so. Aside from this and other inconsistencies,
Herrold's demeanor on the stand was not such as to con-
vince me that he was completely candid. I credit Willis'
account of the telephone conversation.
Willis was still in the process of sticking the tanks to
measure the remaining gasoline when Nelson drove up. Ac-
cording to Nelson he arrived at 2:15 p.m. He immediately
asked Willis where Ward was. Willis, who conceded he was
in a bad mood because of the aggravations of the day and
because Nelson had previously told Ward, incorrectly, that
Willis had complained of Ward's failure to appear on Feb-
ruary 2, replied to Nelson's question: "I don't know. All I
do is pump gas." Nelson told Willis that he was ordering
him to tell him where Ward was. Willis repeated his answer.
According to Nelson, he saw that Willis was in a fairly bad
mood and that he (Nelson) "sort of passed it off" and went
to the station office. Willis finished his task a few minutes
later and went to the office just in time to receive a tele-
phone call from the Ashland Oil Company man on the
office telephone line, which was suddenly reactivated. Willis
gave him the stick readings, then took off his coveralls and
went to get his car from in back and drove it to the office,
I ot out, and told Nelson that he had not dropped the money
or the first shift. Nelson asked what Willis had done with
the money; Willis told Nelson that he had put it in the
cashbox. Nelson asked if Willis would be there for the
morning shift the following day. Willis said he would be,
and Nelson asked if he would, at that time, read the pumps
and take inventory. Willis said that he would but that he
would need someone there to work with him because it
would be impossible to do all that and service the customers
as well . Nelson said that he would have someone there.
Willis then left.
Nelson then told one of the attendants, who was appar-
ently in charge of the 2 to 10 p.m. shift, to drop the money
for the morning shift. The only consequence of the failure
of anyone to drop the money during the morning and the
failure of the manager to check the shift out was that, if
there was a shortage, the Respondent would not be able to
pinpoint a loss to a particular shift that day. There was, in
Pact , a shortage of $12 that day, which was not considered
serious (Herrold spoke of it as a shortage of "only" $12), but
it could not be determined whether this shortage had oc-
curred on the first or second shift.
On the evening of February 4, Ward went to the main
office and spoke with Nelson, saying he had heard that he
was fired. Apparently Nelson had left word at the station to
have Ward see him. 8 Nelson testified that Ward told him
18 Nelson testified that he so requested Willis as Willis was leaving for the
day. It does not seem logical that he would have asked Willis, since there
would appear to be little likelihood that Willis would have seen Ward before
morning Since Ward apparently did receive the message, I infer that he got
he had gone to the hospital and that Willis knew where he
had gone . According to Nelson , Ward smelled of liquor.
Nelson discharged Ward the next day .
On the morning of February 5, Fields and Willis were at
the station . The General Counsel sought to elicit from Willis
when he was on the witness stand a conversation that morn-
ing in which Fields had said something about why he was
sent over to the 33rd Street station . Willis could not recall.
Counsel for the General Counsel then asked if Fields had
said anything about Willis' being fired . Willis, not specifi-
cally identifying the conversation as having taken place on
February 5 , testified : "Well, we had talked about that on
a couple of occasions and we would recount the details. He
had mentioned that was a possibility." When asked then
what Fields had said, Willis testified that Fields had told
him that Nelson had told Fields that, when Fields had been
sent over, Fields was to fire Willis and that Fields had told
Nelson , in substance, that he would discharge Willis if he
had cause to but not otherwise.
At 2:15 p.m. that day, according to Willis , Fields told
Willis, "Dick Nelson said if you promise not to have
anything more to do with the Union, you can keep your job.
Otherwise, we'll have to fire you." Willis testified that he
had first replied to Fields , "I'll not promise Nelson
anything," but that he had amended that to say not to tell
Nelson that but to say he would talk to Nelson about it if
Nelson would come to him personally . Since Fields was a
supervisor within the meaning of the Act and had authority
to discharge Willis, the Respondent would be chargeable
with what Fields purportedly said on this occasion. It did
not, however , call Fields to give his account . It relied exclu-
sively on Nelson 's general denial that he had had any dis-
cussion with Fields concerning unions, union activities,
union dealings of the Company , or any similar subject.
Whether , or nor Nelson in fact told Fields what the latter
actually told Willis on February 5, the Respondent would
be chargeable with Fields ' statements to Willis . In the ab-
sence of any denial by Fields , I credit Willis' testimony of
what Fields told him.
On the evening of February 5, Nelson gave Herrold a
report of what had occurred at the 33rd Street station on
February 4 and of the fact that Fields had, on February 5,
in making up the master sheet , found that there had been
a shortage of $12 which could not be attributed to either the
first or second shift because the first shift had not been
checked out . According to Nelson and Herrold, the latter
had told Nelson that he had told Willis to check out. Her-
rold testified that he had then decided to discharge Willis
at the end of the shift the next day . Because of the evidence
of what occurred on February 6, as well as because of my
prior finding regarding Herrold's testimony of what he had
told Willis on the telephone , I do not credit Herrold 's testi-
mony that failure of Willis to check out on February 4 was
what caused him to decide to discharge Willis.
On February 6, when he arrived at work , Willis asked
Fields if he had talked to Nelson , presumably about the
conversation between Fields and Willis at 2:15 p .m. the
previous day. Fields replied, according to Willis , that Nel-
son had called him on the telephone "last night." Willis
asked what Nelson had said . He quoted Fields as replying,
in service-station vernacular, that Nelson had been angry.
Willis asked Fields if he was going to "get the axe today,"
and Fields had replied , "I think you probably are."
Later that morning , according to Willis, he came into the
station office and overheard Fields talking on the telephone
and deduced that Fields was talking with Nelson, since
Fields had used Nelson's nickname . When Fields was
it from someone on the afternoon shift.
SIMAS BROS.
through, Willis asked what the "word" was. Fields replied,
according to Willis , "Well, that was Dick on the telephone
and he says Walter Simas wants you fired and Walter Simas
has ordered that you be fired , but Dick says he doesn't have
a reason for firing you and he can 't find a reason to fire
you"; and Nelson had asked him [Fields ] if he had any
reason that could be used for firing Willis and Fields had
replied that he had no reason to fire Willis. Willis asked for
a few minutes off and Fields granted his request . Willis used
the time to telephone an attorney with whom he was
acquainted.
At 10:30 a.m. the same morning , Fields told Ward that
he was going out to make a station survey to check gas
prices in the neighborhood . Shortly thereafter Nelson tele-
phoned and asked if Fields was there . Willis answered
saying that Fields had said he was going out to make a
survey and would return in about an hour . Nelson said,
"thank you, and good-bye." Fields returned as expected in
an hour . Between 12:30 and 1 p.m., former Manager Miller
came in and waited . Fields delayed checking out the shift
until about 2:20 m. Willis then went into the office, re-
moved his coverall
s,
and asked Fields if he should come to
work in the morning . Fields shook his head negatively and
took two pieces of paper out of the cashbox . One was Willis'
discharge slip and the other was headed "Simas Bros. Em-
ployee Discharge or Voluntary Quit Report." Both showed
the cause of discharge as "Quarreling with supervisor."
Fields asked Willis to sign the discharge slip, but Willis
refused to do so . Fields then noted , in the space for the
employee's signature, Willis' refusal to sign . The second
form , a copy of which was introduced in evidence, was
signed , not by Fields , but by Nelson. The handwriting on
Willis ' discharge slip, except for Fields ' signature , bears a
striking similarity to the handwriting on Miller 's discharge
slip. Although Nelson had signed that slip , the rest of the
handwriting thereon is not similar to Nelson 's. It is , rather,
similar to that of a girl in the main office , whose handwrit-
ing appears on the return receipt signed on delivery of the
original charge in this case . From this , I deduce that Willis'
discharge was initiated in the main office and that the dis-
charge slip was delivered by Nelson to Fields (probably
while Fields was out making his price survey ) along with the
discharge report form . The latter contained no other infor-
mation than the statement "Quarreling with supervisor"
which Nelson had presumably copied from the cause of
discharge on the discharge slip.
5. Concluding findings regarding
Willis discharge
Although Herrold did not testify on direct examination
for the Respondent that Nelson and he had, on the evening
of February 5, discussed a quarrel that Willis might have
engaged in as a ground for discharging Willis, he conceded
on cross-examination that the word "quarrel" had come
into his conversation with Nelson, although Nelson was
probably the first to use the word; and, when asked if Her-
told, when he had decided to discharge Willis and had told
Nelson to do so, had given Nelson any instructions as to
how he was to do it, replied: "No. Well, I'd say-yes, I did,
too. From his [Willis'] belligerent remarks on I don't know
where the manager is' or `I don't care,' I would say that was
quarreling." Nelson, likewise, sought to characterize Willis'
disgruntled reply to Nelson's question on February 4, about
where Ward was as "quarreling ." Yet, on February 4, when
the incident occurred, Nelson, by his own testimony,
" assed it off." He did not reprove Willis or comment in any
Yet, on February 4, when the incident occurred, Nelson, by
447
way on Willis' disposition; before Willis left for the day,
Nelson asked him if he would be willing to read the pumps
and take inventory the following morning . This is hardly the
conduct of a supervisor who contemplates discharging a
man for alleged quarreling. In fact, it is quite apparent that
dischargin Willis was not the idea of Nelson at that time
or at all. Herrold conceded that he was the one who had
made the decision. Oddly enough, however, although Her-
rold testified that it was Willis' failure to check out the shift
on February 4 that led him to discharge Willis, he did not
so recite on Willis' discharge slip, but instead used a reason
that appeared to have no real basis . I infer that Fields'
quarrel with Ward might have suggested to the Respondent
the possibility of creating a similar situation--one in which
Fields would embroil Willis in an argument on February
6-as a ground for discharge. I further deduce that Fields
was unwilling to participate in such a fraudulent scheme,
despite instructions, and that his failure to do so left the
Respondent with nothing but embarrassment .9
At the hearing, for the first time , the Respondent offered
evidence of other causes for criticising Willis. One involved
an incident in December or January when a customer, who
had just returned from Nevada, handed to Willis a mini-
ature bottle (approximately 1 1/2 ounces) of vodka and a
carton of orange juice . Nelson happened to arrive at the
station while the vodka bottle was sitting on the desk. He
picked it up and put it in his hip pocket. When Willis en-
tered the office, he picked the bottle out of Nelson's pocket,
with the remark that that was his, and he put the bottle on
the shelf. Nelson apparently looked on the matter as so
much horse play, because he did not take any action against
Willis, even though Willis had claimed ownership. The fail-
ure of Nelson to seize the bottle or even give instructions to
get rid of it, as he had done when he had found evidence
of beer drinking at another station, indicates that Nelson
was not concerned with the incident. I do not credit
Nelson's testimony that he had warned Willis as he had
done with beer drinkers at other stations. Nelson testified
that he had not smelled liquor on Willis and, although he
had seen a paper cu with some orange juice in it, he made
no further inquiry. Asked why he had not discharged Willis
for violating a company rule regarding having liquor on the
premises, Nelson replied that it was because the Respon-
dent was short of men. Nelson further testified that, when
Willis claimed the vodka bottle was his, Nelson looked at
Miller, who "sort of smiled," and he quoted Willis as re-
marking (facetiously it would appear) that "it helps to drink
to work in a place like this." Nelson testified that he did not
know why he had let Willis have the vodka bottle instead
of taking it himself. He further testified, "I had been pressed
for men and I had been told ... when I first started the job
... Norman Herrold had told me that if it is possible, its
much better to try and keep a man than it is to just up and
fire him, if he would make a good man." I conclude that
Nelson did not look on the situation seriously, and I find
that his bringing this incident into the case was merely
attempted makeweight.
Additional attempted makeweight was Nelson 's testimo-
ny that on one occasion in January when he had asked
Willis where Miller was, Willis had said that he did not
know-that it was the business of the manager to know
where Willis was but not the business of Willis to know
where the manager was. Nelson testified that, later, he had
19 This conclusion could explain in part why the Respondent did not call
Fields as a witness
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located Miller at the Castro Valley station and that Miller
had told him that Willis had known where he was . Neither
Miller nor Willis was asked to confirm the latter testimony,
and I note that one of the complaints Nelson listed against
Miller was that , when Miller left the station , he did not leave
word where he could be reached.
I discount Willis ' failure to make any of the money drops
on February 4 as a real cause , even in part , for Willis'
discharge . Since Willis had, on that morning , already turned
over money to Fields and Ward, and since they had record-
eO no drops , Willis had no way of knowing whether or not
all the money was in the cashbox , or whether some of it had
been dropped in the safe without a record thereof. Willis
feared , not without some justification , that, if he had made
and recorded the first drop , he could have been held respon-
sible for all the receipts of-the shift . To him , with some cause
for suspicion , it could have apppeared to be a trap to give the
Respondent a pretext to discharge him. In any event, neith-
er the failure to make the drops , the failure to check the shift
out, nor the failure to tell Nelson where the manager was
was specifically given as the cause of Willis ' discharge on
either the report of discharge or on the discharge Shp itself.
Nelson and-Herrold made a feeble attempt to bring some
of Willis' conduct under the description of "quarreling."
Nelson testified : "He quarreled with me that he should have
more help in the station , and I was overworking him." On
redirect, with the aid of a leading question from
Respondent's counsel , Nelson described qquarreling as, "All
of the instances , really , that we have bropght out here today,
not telling where Mr. Miller was , stuff like this . The quarrel-
ing could mean any number of things."
Nelson also described Willis ' attitude , when he had asked
Willis where Ward was , as belligerent . I find that either
Nelson did not know the meaning of the word "belligerent"
or he was purposely exaggeratin .
Both Nelson and Herrold sought to make it appear that
when a manager is away from the station at the close of a
shift, the relief shift manager "naturally" has the duty to
check out. I am not satisfied that this would be the case
unless the manager had specifically asked the relief shift
manager to check the shift out, and since Ward had said he
would be back when he left on February 4, and had not
specifically asked Willis to check out the shift , Willis had
every reason to suppose that Ward intended to return. Fur-
thermore , there was the suspicious circumstance that Ward
had made no drop or , if he had, had not made a record of
it. In any event , however, if the real reason for discharging
Willis was failure to check out the shift , why was that not
stated on the discharge slip?
Since I have not relied on the hearsay testimony to prove
the Respondent's motive for discharging Willis for advocat-
ing a better union contract and supporting a movement to
this end, the question may be raised as to whether or not
Respondent's motive has been established . Direct evidence
of motive is rarely supplied in cases of pretext and the
motive must be inferred from all the facts . As stated by the
court in Shattuck Denn Mining Corporation v. N.L.R.B., 362
F.2d 466 (C.A. 9):
If he [the Trial Examiner] finds that the stated motive
for a discharge is false , he certainly can infer that there
is another motive . More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where , as in this case, the
surrounding facts tend to reinforce that inference. 0
In this case , the following facts are significant : Respon-
20 See also Custom Chair Manufacturing Co., 170 NLRB No. 62, enfd 422
F.2d 1300 (C A. 9)
dent had a high turnover of employees ; if an employee was
a good one, Nelson had been advised not to discharge that
employee for slight cause; and Willis was well thought of as
an employee-a good worker and a reliable one; whatever
criticism the Respondent had of Willis for his conduct on
February 4 was not serious, certainly not serious enough for
discharge , especially where , as here, he had not been re-
proved on the spot by Nelson , and Nelson showed no other
evidence of considering it serious . Nor was Willis told later
that he had done something that was disapproved. All that
the Respondent told Willis was that he was discharged for
arguing with his supervisor , a patently false charge. The
General Counsel did not prove , except by hearsay testimo-
ny, on which I do not rely , that Respondent actually knew
of Willis' union or concerted activities . However, scienter
may be inferred from other evidence , including the facts
that Willis had openly engaged in promoting a new and
stronger union contract ; that Respondent suddenly dis-
charged an employee (Willis), who-had a good reputation
and whose shortcomings were far from substantial ground
for discharge , although Respondent was shorthanded; and
finally that Respondent gave an untenable reason for dis-
charging him . The Respondent did not explain how it came
into possession of the titer which Willis had distributed to
attendants at certain stations . The Respondent could as
readily have come into possession of the proposed contracts
and information concerning Miller 's and Willis ' participa-
tion in the preparation of those documents. Not all the
managers cooperated with Miller and Willis.
The Respondent sought to make it appear that Willis had
engaged in unprotect concerted activities by pointing to
a part of the language of the flier composed byWillis urging
employees to make known to the Union 's business agent
their ideas of better terms and conditions of a contract. The
Respondent 's emphasis on the phrase therein , "Don't let
anyone else bargain for you," is misleading , since the inter-
pretation the Respondent urges (that Willis was suggesting
the employees by-pass the Union ) takes that portion of the
message out of context . It totally ignores the advice to notify
the Union's business agent of the employee's views. Fur-
thermore , there is no showing that Respondent relied on this
flier as a cause for dischar ging Willis.
I conclude and find , on all the evidence , that the Respon-
dent discharged Ross Willis because of his union or concert-
ed activities thereby discriminating in regard to his hire and
tenure of employment and interfered with, restrained, and
coerced Ross Willis and other employees in the exercise of
the rights guaranteed in Section 7 of the Act , all in violation
of the Act.
IV CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Ross Willis because of his union activities,
Respondent has discouraged membership in the Union in
violation of Section 8(a)(3) of the Act.
4. By discharging Ross Willis because of his union or
concerted activities, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
SIMAS BROS.
RECOMMENDED ORDER 21
Respondent , Simas Bros ., its officers , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Automotive
Employees Union, Local No. 79, International Brotherhood
of Teamster, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discharging or
otherwise discriminating against employees in regard to
hire, tenure of employment, or any term or condition of
employment.
(b) In any manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or the right to refrain from any or all such activi-
ties, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer Ross Willis immediate and full reinstatement to
his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed.
(b) Make Ross Willis whole for any loss he may have
suffered by reason of the discrimination against him by
paying him a sum of money equal to that which he would
have earned in the Respondent's employment, including not
only wages but all other emoluments that he normally
would have received between the date of his discharge and
the date of Respondent's offer of reinstatement (less his net
earnings elsewhere ) computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289, together with inter-
est on the sum so computed at the rate of 6 percent per
annum 22
(c) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records relevant and
necessary to a determination of the amounts due under
paragraph (b) above.
(d) Notify Ross Willis, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Post at each of its service stations which are located
in and about Oakland, San Francisco, and suburbs, copies
of the notice marked "Appendix."23 Copies of said notice,
on forms provided by the Regional Director for Region 20,
21 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and order , and all objections
thereto shall be deemed waived for all purposes
22 Isis Plumbing & Heating Co , 138 NLRB 716
23 In the event that the Board 's 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 Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals,
Enforcing an Order of the National Labor Relations Board "
449
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.24
24 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for Re-
gion 20, in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Ross Willis immediate and full rein-
statement to his former position or, if that no longer
exists, to a substantially equivalent osition, without
pre udice to his seniority or other rights or privileges.
E WILL make Ross Willis whole for any loss he may
have suffered as a result of the discrimination against
him.
WE WILL NOT discourage membership in Teamsters
Automotive Employees Union , Local No. 78, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , or any other labor
organization, by discriminating in regard to the hire or
tenure of employment of any of our employees.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of the rights to
self-organization , to form labor organizations, to join
or assistTeamsters Automotive Employees Union, Lo-
cal No. 78, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
or any other labor organization, to bargain through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
Simas Bros.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any question concerning this notice or compliance with
its provisions may be directed to the Board's Office, 450
Golden Gate Avenue , Box 36047 , San Francisco, California
94102, Telephone 556-0335.